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2018 (1) TMI 1655 - NATIONAL COMPANY LAW TRIBUNAL SPECIAL BENCH NEW DELHI
Seeking for extension of time from 180 days to 270 days - Application filed by present RP - HELD THAT:- I is represented by the present RP that the present application has been necessitated in view of the fact that 90 days period is also expiring on 28.1.2018 and has sought for further extension of period by 90 days to be calculated from the date of the pronouncement of order i.e. 16.01.2018. However, in this respect the Resolution Professional has invoked Rule 11 of NCLT Rules, 2016 read with Rule 51 of NCLT Rules, 2016 seeking for modification under the provisions of IBC under Section 12(2) read with Regulation 40(2) of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. Perusal of Section 12(2) of the IBC, 2016 shows that this Tribunal has got the power to extend the period of CIRP beyond 180 days based on a resolution passed by the Committee of Creditors with a vote of 75%.
Further perusal of Section 12(3) shows that this Tribunal has got power to extend the time period by 90 days beyond 180 days and not exceeding the said extended period of 270 days. Since the time limit beyond 270 days cannot be extended for completing the CIRP process, this Tribunal is not in a position to allow the prayer as sought for by the Resolution Professional and hence in the circumstances the application is dismissed and the Resolution Professional is directed to complete the CIRP process within the extended period of 90 days.
Application dismissed.
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2018 (1) TMI 1654 - SUPREME COURT
Maintainability of petition - Operational Debt - HELD THAT:- National Company Law Tribunal, Kolkata Bench, Kolkata, on 09.01.2018, has admitted the petition and we are informed that by an order passed on 12.01.2018 has corrected some errors that have crept in.
However, the matter now stands settled. We take a copy of the Settlement Agreement dated 11.01.2018 entered into between the parties on record and by using our powers under Article 142 of the Constitution of India set aside the order(s) passed by the National Company Law Tribunal.
Appeal disposed off.
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2018 (1) TMI 1653 - BOMBAY HIGH COURT
Revocation of Customs Broker License - the purported findings of the Appellate Tribunal that the Appellants acted on the basis of fabricated authority letter in contravention of Regulation 13(a) is without any basis or not? - Appellants transacted the business through unauthorised person in contravention of Regulation 13(b) or not - contravention of Regulation 13(d) of the CHALR, 2004 by not directly dealing with the exporter or the person authorised by the exporter without any basis and or based on no material on record or not - revocation of the CHA license of the Appellants is commensurate with the alleged contravention of the CHALR, 2004 or not?
HELD THAT:- This appeal is admitted on the substantial questions of law.
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2018 (1) TMI 1652 - ITAT RAIPUR
Assessment u/s 153A - Unexplained cash credits u/s.68 - HELD THAT:- The assessee is engaged in the business of power generation. A search and seizure operation was conducted in the case of the assessee on 24th and 25th May, 2011. In pursuance to the same, notice u/s.153A of the Act was issued and impugned orders of assessments were passed. It is not in dispute that assessment for the assessment years 2006-07, 2007-08 and 2008-09 were completed prior to the date of search. In other words, the assessments for these assessment years were not abated.
In the present appeals the Revenue has challenged the deletion of addition in assessment year on account of share application u/s.68 of the Act and bogus purchase of husk.
We find that the above additions made by the AO in the impugned assessment years were not based on any incriminating material found during the course of the search.
Revenue could not show any incriminating material, which was found during the course of the search on the basis of which above additions could have been made. It is a settled position of law that in an assessment made in pursuance to search in respective assessment years for which assessment proceedings were not abated, additions cannot be made de hors the incriminating materials found during the course of search. We, therefore, do not find any merit in these appeals of the Revenue. Accordingly, the appeals of Revenue for the assessment years 2006-07, 2007-08 and 2008-09 are dismissed.
Bogus bill of husk - CIT(A) observed that in the assessment order the AO has not brought any incriminating material based on which the addition was made on account of bogus purchase of husk - No finding that the assessee has used coal in place of husk and obtained bogus bill of husk. No such material has been found during operation u/s 132 of the Act which even remotely suggests suppression of purchase of coal. CIT(A), therefore, observed that he was convinced that addition on account of inflated purchases has been made by the A.O on estimate basis in all the years without bringing any evidence on record in support of his contention. These findings of CIT(A) has not been rebutted by the Revenue by bringing any positive material on record. In absence of the same, we find no good reason to interfere with the findings of the CIT(A), which are confirmed and the grounds of appeal of the Revenue for assessment years 2009-10, 2010-11, 2011-12 and 2012-13 are dismissed.
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2018 (1) TMI 1651 - SC ORDER
Money laundering - nature of offence - HELD THAT:- Issue notice, returnable in four weeks.
There shall be stay of operation of the impugned order of the High Court.
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2018 (1) TMI 1650 - BOMBAY HIGH COURT
Appeal admitted on substantial question of law - Reopening of assessment - Assessment of trust - whether impugned order of the Tribunal is bad in law being perverse and violative of principles of natural justice as the impugned order (i) wrongly/erroneously records and considers vital facts of the case (ii) does not adjudicate/consider the main arguments/claim/submission of the Appellant (iii) does not consider and give findings on a single case law cited and relied upon by the Appellant (iv) relies on information without disclosing the same to the Appellant under the guise of confidential information and (v) relies on additional evidence relied by the Revenue and uses the same against the Appellant in violation of Rule 18 and Rule 29 of the Income Tax (Appellate Tribunal) Rules, 1963?
Whether in law and on the facts and circumstances of the case, reopening is bad in law as the Assessing Officer did not deal with the objections raised by the Appellant with respect to reopening of assessment?
Whether in law and on the facts and circumstances of the case, the Tribunal erred in confirming the addition without appreciating that (i) the Revenue did not supply any evidence to show that the entire balance in Ambrunova Trust was deposited in assessment year 2002-03 itself (ii) the source of information was not authentic and the documents supplied were not authenticated, and thus the entire addition was made on surmises and conjecture, presumptions and the onus cast on the Revenue was not discharged in the light of the law laid down by the Hon'ble Supreme Court in CWT Vs. Estate of Late HMM Vikramsinhji of Gondal2014 (5) TMI 286 - SUPREME COURT?
Whether in law and on the facts and circumstances of the case, income of discretionary trust can be taxed in the hands of the beneficiary only when the income of the trust is distributed and received by the beneficiary?
Whether in law and on the facts and circumstances of the case, as the alleged trust and trustees are non resident and the income of the trust if any at all, is received outside India the same cannot be taxed in India as per Section 5(2) read with Section 6(4) of the Act?
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2018 (1) TMI 1649 - ITAT RAIPUR
Disallowance on account of loss on foreign exchange fluctuation - nature of loss suffered - HELD THAT:- As relying on assessee's own case for assessment year 2008-09 present situation is that the revenue authorities have not examined the nature of loss suffered by the assessee and how a provision was made. Whether, it was a foreign derivative transaction or transaction in respect of forward exchange contract pertaining to hedge the loss in respect of carbon credit has not been clearly emerged from the facts of the case. We, therefore, deem it proper to restore this issue to the file of the AO so that he can make necessary enquiry and if it was a foreign exchange loss connected to the carbon credit then naturally the same should not be allowed - thus we restore this issue to the file of the Assessing Officer with the same direction as above. Hence, this ground of revenue is allowed for statistical purposes.
Deduction under section 80IA Computation - depreciation on common assets - 40% depreciation on common fixed assets be not reduced from eligible profit claimed u/s. 80IA of the Act - HELD THAT:- We find that similar addition was made by the Assessing officer in the assessment year 2008-09 and the CIT(A) has confirmed the same. On appeal by the assessee, the assessee did not press this ground before the Tribunal. Therefore, this addition was sustained. Since the facts of the present year is similar to that in the year 2008-09, we reverse the order of the CIT(A) and restore that of the Assessing officer. Hence, this ground of revenue is allowed.
Disallowance u/s 14A - Assessee’s counsel is making a plea that investments made by the assessee company in the present case were strategic investments - HELD THAT:- We set aside the order of the CIT(A) and remit the matter back to the file of the Assessing Officer, who shall examine the pattern of holdings in the group companies and decide the issue accordingly. This ground of the revenue is allowed for statistical purposes.
Deduction under the head “pooja & festival expenses” under the head Charity & Donation expenses - AO observed that these expenses are not relatable to business purposes of the assessee thus disallowed - HELD THAT:- We find that the CIT(A) after considering the CBDT circulars held that the expenses under the head charity, donation do not relates to business of the assessee whereas he has allowed deduction for the pooja and festivals. We see no reason to interfere with the order of the CIT(A), which is hereby confirmed.
Disallowance of share capital expenses - HELD THAT:- Assessee is listed with BSE, NSE and SEBI, and the expenses relate to annual custodian fees, listing fees, compliance certificate fees, printing of annual reports, charges publication of quarterly, half-yearly and annual results as per the requirements of SEBI and other misc professional fees relating to the work, which are recurring in nature. CIT(A) has deleted the addition after properly appreciating the facts of the case. Hence, we confirm his order and reject the ground of appeal of the revenue.
Disallowance on account of Social Welfare expenses which have not been incurred wholly and exclusively for the purpose of business - CIT-A allowed the deduction - HELD THAT:- CIT(A) has referred to the amendment made in Finance Act (No.2) 2014 w.e.f. 1.4.2015 in Section 37, wherein, it is declared that for the purposes of sub-section(1) any expenditure incurred by an assessee on the activities relating to corporate social responsibility referred to in section 135 of the Companies Act, 2013 shall not be deemed to be an expenditure incurred by the assessee for the purposes of the business or profession. CIT(A) has held that there was no such embargo for the preceding years - CIT(A) held that the disallowance cannot be sustained. In the instant case, it is submitted that CSR expenses are incurred for the welfare of local community and thereby improve corporate image of the companies incurring such expenditure. We are of the considered opinion that the CIT(A) has rightly considered the decision and deleted the addition made.
Disallowance u/s.40A(3) - CIT-A has allowed the deduction which are below the prescribed limit u/s.40A(3) - HELD THAT:- Before us, no plausible explanation was submitted by the ld D.R. to controvert the above findings of the CIT(A). Hence, we uphold the order of the CIT(A) and dismiss the ground of appeal of the revenue.
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2018 (1) TMI 1648 - ITAT MUMBAI
TDS u/s 195 - non-deduction of taxes on payment to NR entities - payment for acquiring access/user rights of software - transfer / sale of software - Royalty payment - distinction between a transaction involving the 'transfer of copyrighted article' and 'transfer of rights in a copyright' - exclusive right to do or authorise the doing of the acts - Diversified views- whether decision of non jurisdictional High Court is not binding on Mumbai ITAT? - HELD THAT:- We find ourselves in agreement with the submission of the ld. Counsel of the assessee that there is no Hon’ble Bombay High Court decision on this issue. In such circumstances, the co-ordinate bench of this tribunal in National Stock Exchange of India Ltd. [2017 (5) TMI 916 - ITAT MUMBAI] has considered identical issue find that admittedly there is no direct jurisdictional High Court decision on the subject. However there is a direct Hon’ble Delhi High Court decision which is in favour of the assessee. As against this there are decisions of Hon’ble Karnataka High Court which are in favour of revenue. In this regard we note that Hon’ble Apex Court in the case of vegetable products 88 ITR 192 [1973 (1) TMI 1 - SUPREME COURT] had held that if two constructions are possible one in favour of the assessee should be adopted. Accordingly respectfully following the precedent we follow the Hon’ble Delhi High Court decision. Accordingly we set aside the order of authority below. We hold that the transfer / sale of software in this case is not taxable as royalty. Hence the assessee was not liable to deduct tax at source u/s 195 of the Incometax Act, before remitting the money to the US supplier. - Decided in favour of assessee.
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2018 (1) TMI 1647 - ITAT CHENNAI
Disallowance u/s 40(a)(ia) - whether the second proviso to section 40(a)(ia) takes effect from 01.04.2013 is applicable to the assessee or not ? - HELD THAT:- After considering the decision in the case of Star Investments Pvt. Ltd [2016 (6) TMI 1428 - ITAT CHENNAI], this tribunal in the assessee’s own case in [2017 (6) TMI 1354 - ITAT CHENNAI] Revenue’s appeal is dismissed.
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2018 (1) TMI 1646 - ITAT MUMBAI
Disallowance of deduction claimed u/s 80IB(10) in respect of housing project - AO has disallowed assessee’s claim of deduction alleging violation of conditions of clause–(f) of section 80IB(10) which provides that more than one residential unit in a housing project cannot be sold to a person / individual - whether for violation of the conditions of clause–(f) of section 80IB(10) of the Act in respect of two flats, assessee’s claim of deduction in respect of entire housing project can be disallowed? - HELD THAT:- Undisputedly, except violation of conditions of clause–(f) of section 80IB(10) of the Act in respect of two flats, all other conditions of section 80IB(10) of the Act are fulfilled in respect of the housing project which is evident from the fact that there is no other allegation made by the AO.
In our view, for violation of conditions of clause–(f) of section 80IB(10) of the Act in respect of two flats, the deduction for the entire housing project or in respect of other flats which otherwise are complying to the conditions of section 80IB(10) cannot be disallowed. The disallowance, if any, has to be restricted to the flats which violate the conditions of section 80IB(10). The Hon'ble Jurisdictional High Court in CIT v/s Bramha Associates [2011 (2) TMI 373 - BOMBAY HIGH COURT] has held that deduction under section 80IB(10) can be allowed on proportionate basis in respect of flats which fulfilled the conditions of section 80IB(10).
The ratio laid down in the aforesaid decisions, though, are in the context of clause–(c) of section 80IB(10) of the Act, however, they will apply to the facts of the present case as there is not much difference in the object for which section 80IB(10) was introduced, even after introduction of clause–(e) and (f) to section 80IB(10) by Finance Act, 2009. Therefore, applying the ratio laid down in the decisions cited before us, we hold that the assessee will be entitled to deduction under section 80IB(10) of the Act proportionately in respect of flats which fulfilled all the conditions of section 80IB(10).
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2018 (1) TMI 1645 - ITAT PUNE
Disallowance of interest relating to the diversion of funds for non-business purposes - HELD THAT:- As submission of the assessee’s counsel that the issue may be restored to the file of the AO and the same will be in tune with the decision of the Tribunal in the case of M/s. Bafna Builders and Land Developers [2017 (12) TMI 1519 - ITAT PUNE] where Ground as already remanded to the file of the AO for fresh adjudication as per the discussion given in Para 17 of the said order of the Tribunal (supra). In the remand proceedings, AO was directed to grant reasonable opportunity to the assessee.
Disallowance of interest u/s.14A r.w. Rule 8D of the I.T. Rules - HELD THAT:- As assessee submitted that the assessee has excess funds which were invested in the shares which yielded dividend income and the interest claimed by the assessee is nothing to do with the investments made by him in the exempt income yielding investments. For examining the claim of the assessee as well as applying the correct law on this issue, Ld. Counsel desires that the matter should be restored to the file of the AO allowed.
Addition u/s.69B - HELD THAT:- As supplying the copy of the document to the assessee is her legitimate right before any addition is made in her hands relying on the said document. AO is directed to supply the same and also cross examination if any before making any addition in her case and in the remand proceedings. Accordingly, as requested, the issue is restored to the file of the AO for fresh adjudication. AO is directed to grant reasonable opportunity of being to the assessee in accordance with law. Accordingly, Ground No.3 raised by the assessee is allowed for statistical purposes.
Capital gain computation - addition u/s.50C - HELD THAT:- We direct the AO to examine all the aspects of the issue and decide the requirement of making addition in the hands of the assessee u/s.50C of the Act. AO shall grant reasonable opportunity of being heard to the assessee in connection with the set principles of natural justice. Accordingly, Ground No. 4 and the additional grounds raised in his chart.
Addition u/s 28(iv) - HELD THAT:- This is a case where the assessee purchased commercial premises for a lesser consideration qua the fair market value of the same. Originally, the AO taxed the differential cost u/s.28(iv) of the Act in the hands of the firm who sold the commercial premises to the assessee. Assessee has 60% shareholder in the said firm by name M/s. Bafna Builders and Land Developers. It is the finding of the CIT(A) that the assessee got the benefit to the tune of ₹ 2,44,62,169/-. It is the finding of the Tribunal as well as the CIT(A) that the said amount is not taxable in the hands of the firm.
CIT(A) have given the above direction, which in our view is consequential comment of the CIT(A) Even if the said direction is absent in the said paragraph, the authorities below would anyway initiate the consequential proceedings. From that point of view, we are of the view that the direction given by the CIT(A) does not warrant any amendment.
50% disallowance on vehicle expenses, Drivers’ salary and depreciation addition restricted roughly 15% of the total expenses.
Bogus expenses on tea/coffee/cold drinks - Addition on account of boxes, i.e. the packing material - HELD THAT:- AO could neither bring any corroborative evidence that the assessee has made bogus payments nor prove the expenses to be untrue. Therefore, we uphold the decision of the CIT(A) on this issue.
Disallowance on account of Kavi Sammelan Expenses - HELD THAT:- Order of CIT(A) holding the expenses as income expenses and consequently deleting the expenses incurred by the assessee on Haysa Kavi Sammelan does not warrant any interference from our side. Accordingly, Ground No.3 raised by the Revenue is dismissed.
Addition u/s.40A(2)(b) - amount was claimed as payment of salary and bonus to the employees - The same constitutes an extra amount paid in this year qua the last year’s claim - HELD THAT:- We find the AO is duty bound to prove the salary and bonus paid to the employees as unreasonable. CIT(A) has rightly held that the addition made the AO is only on estimate basis and without discharging the onus. In this view of the matter, the decision of the CIT(A) needs to be approved and in favour of the assessee. Accordingly Ground No.5 raised by the revenue is dismissed.
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2018 (1) TMI 1644 - MADHYA PRADESH HIGH COURT
Dishonor of CHeque - insufficiency of funds - fastening of vicarious liability without impleading company as party in the complaint - HELD THAT:- From the perusal of Section 2(d) of the Cr.P.C. it is evident that in a complaint if any allegation against any person is mentioned, with a view to take action against him, he will be deemed as an accused of the complaint. From the definition of ‘complaint’ it does not appear that only when the name of person is mentioned in the cause title of the complaint, then only that person shall be treated as accused of that complaint.
Although there is no provision in the Act and Code of Criminal Procedure to permit the applicant to amend the complaint, but there is no bar in the Code of Criminal Procedure as well as in the Negotiable Instrument Act against permitting the complainant to amend his complaint. Where, there is no bar in the Act and in the Code of Criminal Procedure, this Court in the interest of justice may permit the complainant to amend the complaint.
It is obvious from the scheme of Section 138 that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that in spite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand.
While in the instant case there is no delay on the part of complainant/non-applicant No.1. Because, complainant had already mentioned the name of applicant no.2/company in the complaint from the beginning and prayed to the Court that cognizance be taken against the applicant no.1 as well as against the applicant no.2/company, which clearly appears from the prayer clause of the complaint - Section 319 of the Cr.P.C. would operate in a situation where during the trial and enquiry, it appears to the trial Court whether as a Magistrate or a Sessions Judge that some other persons are also involved in the commission of the offence, for which he is holding the trial, he could invoke Section 319 of the Cr.P.C. for summoning them to be arrayed as an accused.
There is no bar under Section 190 of the Cr.P.C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record - Petition dismissed.
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2018 (1) TMI 1643 - DELHI HIGH COURT
Special audit u/s 142 (2A) - petitioner has fairly stated that they would not be objecting the special audit, but are concerned about the terms of reference - HELD THAT:- We take the statement made by the counsel for the petitioner and the respondents on record and hope and trust that the Special Auditor would abide by the provisions of Section 142(2A) as explained and elucidated by several judgements of the Supreme Court and the Delhi High Court.
During the course of hearing, an issue had arisen with reference to verification of purchase of shares of amalgamating company and premium paid by the shareholders - petitioner has expressed apprehension that the Special Auditor may re-open old and settled issues which are not subject matter of the current assessment years - respondents on instructions states that the Special Auditor would be dealing with the audit and accounts confined to the assessment years in question or earlier years as permissible under law, i.e., the Income Tax Act and Rules.
We clarify that the special audit would be in accordance with the terms of reference, which are mentioned in the affidavit filed by the respondents on 16th September, 2017. Special Auditor will keep in mind the order passed today and on earlier dates. In terms of the statement made by the counsel for the parties, the writ petition is disposed of with the aforesaid observations.
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2018 (1) TMI 1642 - BOMBAY HIGH COURT
Winding up of Respondent company - company is unable to discharge its debts and is commercially insolvent - HELD THAT:-This Court while admitting the petition has clearly satisfied that respondent company is unable to pay its debts and the claim of petitioner is undisputed. It is also satisfied that there is a debt and the company is unable to discharge its debts, is commercially insolvent and requires to be wound up.
The company be wound up by this Hon'ble Court in accordance with provisions of the Companies Act, 1956 - petition allowed.
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2018 (1) TMI 1641 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Scheme of Arrangement by way of Amalgamation - sections 230-232 of Companies Act, 2013, and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions with respect to calling, convening and holding of the meetings of the Equity Shareholders, Preference Shareholders, Secured and Unsecured Creditors, or dispensing with the same as well as issue of notices including by way of paper publication is issued.
Application allowed.
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2018 (1) TMI 1640 - HIMACHAL PRADESH HIGH COURT
Dishonor of Cheque - complaint came to be dismissed in default for non-presence and non-prosecution, when the case was listed for recording of defence evidence - Section 138 of the Negotiable Instruments Act - HELD THAT:- In view of Section 143 of the NI Act, offence under Section 138 of the NI Act is to be tried summarily and accordingly, procedure for summons case provided in Chapter XX of the Code of Criminal Procedure is applicable during the trial initiated on filing a complaint under Section 138 of the NI Act. In this Chapter, Section 256 Cr.P.C. deals with a situation of non-appearance of death of complainant.
When the Magistrate, in a summons case, dismisses the complaint and acquits the accused due to absence of complainant on the date of hearing, it becomes final and it cannot be restored in view of Section 362 Cr.P.C.
Keeping in view the effect of dismissal in default, the Magistrate is supposed to exercise his discretion with care and caution clearly mentioning in the order that there was no reason for him to think it proper to adjourn the hearing of the case to some other day - In present case, the case was at advance stage of hearing, statement of respondent under Section 313 Cr.P.C. had been recorded and case was fixed for recording defence evidence. The complainant was duly represented by the counsel, but his counsel has also failed to put in appearance before the Magistrate for which complainant may not be held liable directly, rather, absence of the complainant, as he has engaged a counsel to represent him, may be considered as justified under the bona fide belief that the counsel may attend his complaint in his absence. For recording statements in defence, presence of complainant was not necessary.
The learned Magistrate was not justified in dismissing the complaint in default for single absence of the complainant coupled with failure of his counsel to attend the date. From the stage of complaint, it is evident that presence of complainant, on that day, was unnecessary as the case was at final stage. The Magistrate instead of dismissing the complaint in default should have adjudicated upon the complaint on merit and for that purpose, he might have adjourned the case for a future date - In the impugned order, there is no finding of the Magistrate that the complainant was not pursuing the complaint honestly and diligently. There is no reference of previous history, if any, with regard to conduct of the complainant causing unnecessary delay on account of adjournments sought by him or for want of his presence. There is only reference of his absence on the date since morning till post-lunch session. Therefore, acquittal of the accused without adjudicating the case on merits, due to non-appearance of the complainant on the date of defence evidence, who was sincerely pursuing his remedy, is improper.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1639 - TELANGANA HIGH COURT
Validity of pre-charge and post cognizance proceedings - siphoning off of unaccounted amount - Privity of criminal conspiracy - trial for the accusation of criminal conspiracy - HELD THAT:- For abetment by conspiracy mere agreement is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for. But in the offence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence.
When it is not a case of the Petitioner-A13 was privy to any conspiracy with M/s. Emaar properties, Public Joint Stock Company (PJSC), Dubai, from the time of their entering the MOU, much less even party to agreement between M/s. Emaar and its subsidiaries and M/s. Stylish Homes and not even privy with Ranga Rao- Director of M/s. Stylish Homes and nothing even of any material with substance to say any privy between A6-Rajendraprasad and the petitioner-A13, leave apart, even any thing to infer between father and son of any knowledge of the son about his father was privy with others in any offence and not prevented, that no way establish any criminal conspiracy to mulct the petitioner as A13 with others of them, even taken for arguments sake of his version of the amount remitted by Parthasarthy was a loan and the amount remitted by Suresh was investment in any business are untrue, that by itself but for one of several circumstances to infer no way suffice to charge him with accusation of criminal conspiracy.
Thus there is nothing to implicate him with criminal conspiracy, for there is nothing to show any circumstances give rise to a conclusive or irresistible inference of an agreement between him and one or more other persons to commit an offence; leave apart a few bits here and a few bits there on which the prosecution relies if any cannot be held to be adequate for connecting him with the commission of the crime of criminal conspiracy.
Undisputedly from the settled legal position, there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. For that the acts and conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement. what is essential of the Agreement as a primary fact is proved from the prosecution material on record, for mere knowledge, or even discussion, of the plan is not, per se enough.
The ends of justice are to be understood by ascertainment of the truth as to the facts on balance of evidence on each side. With reference to the facts of the case, the Court held that in the absence of any other method, it has no choice left in the application of the Section except, such tests subject to the caution to be exercised in the use of inherent jurisdiction and the avoidance of interference in details and directed providing of a legal practitioner. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not - where the Court finds that it would amount to abuse of process of the Code or that interest of justice favors, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.
The principle thus laid down is before issuing a process and taking cognizance the Court has to consider from the existing material whether case falls within the exception and only if not, to say prima facie accusation on a complaint or final report to take cognizance for any criminal if makes out. It is something different of prima facie consideration at pre-cognizance stage to the postcognizance defence available to the accused under any of the exceptions in detail to make out either from the prosecution material or from any material placed by accused to show he is not liable to be charged to face the ordeal of trial - When such is the case, so far as the quash Court under Section 482 CrPC from the accused also entitled to ask by placing any material in defence to consider from facts and circumstances, to subserve the ends of Justice, irrespective of the complaint allegations make out case for taking cognizance, where it deserves for quashing instead of continuing a lame prosecution with no purpose and by no need of inviting the accused to face the ordeal of trial.
In INDER MOHAN GOSWAMI & ANR VERSUS STATE OF UTTARANCHAL & ORS [2007 (10) TMI 550 - SUPREME COURT], It is observed that Court should balance with personal liberty, the societical interest and a warrant for arrest of accused should not be issued without proper scrutiny of facts from complaint or F.I.R in application of judicial mind and where dispute is a pure civil in nature or from reading of F.I.R the ingredients of offence are absent, the proceedings can be quashed.
It is needless to say ends of Justice are higher than the ends of mere law, though justice has got to be administered according to laws made by the legislature. Without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction - petition allowed.
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2018 (1) TMI 1638 - SUPREME COURT
Grant of extension of time - condonation of delay that had occurred in adhering to the time schedule of payment as agreed to in the Lok Adalat - HELD THAT:- In the facts of the present case, the view taken by the learned Appellate Tribunal (DRAT), cannot be said to be so wholly unreasonable or unsustainable so as to justify interference by the High Court. If the agreed amount stood paid though with some delay, condonation of the delay is a possible course of action, if the grounds for delay justified a departure from what was also agreed upon, i.e., the right of a Bank to recover the entire dues. All would depend on the facts of each case.
The ends of justice would be met if for the delay that had occurred, the Appellants are made liable to pay simple interest @ 24% p.a. on the amount of ₹ 34.5 lakhs (as agreed to in the Lok Adalat) for the period from the date of the Award of Lok Adalat, i.e., 10.09.2004 to the date of last payment, i.e., 29.10.2006. In addition, a further amount of ₹ 10 lakhs to be paid by the Appellants to the Respondent-Bank as compensation and costs - Appeal allowed.
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2018 (1) TMI 1637 - ITAT MUMBAI
Existence of Permanent Establishment/Business connection in India - Taxability of business Income earned in India, by company incorporated outside India - whether reinsurance business has been specifically excluded from constituting a PE in India under the treaty - DTAA between India and Switzerland - HELD THAT:- As decided in own case [2015 (4) TMI 905 - ITAT MUMBAI] assessee does not have any business connection in India in the light of Explanation-2 to Section 9(1) of the Act. The assessee does not have PE in India. The facts on record show that there is neither Service PE nor Agency PE in the form of SESIPL. Considering the facts in totality in the light of the relevant provisions of the law and DTAA and the judicial decisions referred to herein above, we have no hesitation in setting aside the assessment order and accordingly we direct the AO not to treat the income of the assessee as taxable under the Act. - Decided against revenue.
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2018 (1) TMI 1636 - CESTAT CHENNAI
Jurisdiction - power of DRI to issue SCN - Competent Officers to issue SCN or not - HELD THAT:- Being conflicting decisions of various High Courts, finally the matter reached to Hon’ble Supreme Court who on 07.10.2016 granted the stay of operation of the judgment passed by the High Court of Delhi. Thus the issue is subjudice before the Hon’ble Supreme Court. [2016 (8) TMI 1181 - SC ORDER].
It may be mentioned that recently, the Hon’ble High Court of Delhi in the case of BSNL Vs. UOI vide [2017 (6) TMI 688 - DELHI HIGH COURT] has dealt with the identical issue where the notice was also issued by DRI. The Hon’ble High Court of Delhi has considered the judgment in the case of Mangli Impex Vs. UOI which is stayed by the Hon’ble Supreme Court reported as [2016 (8) TMI 1181 - SC ORDER]. Finally the Hon’ble High Court has granted liberty to the petitioner by observing that petitioner is permitted to review the challenge depending on the outcome of the appeals filed by the UOI in the Supreme Court against the judgment of the Court in the case of Mangli Impex Ltd.
It is found that the show cause notices involved in these appeals are also in jeopardy in view of the fact of Mangali Impex judgment as also the fact that the same has been stayed by the Hon'ble Supreme Court.
Matter remanded to the original adjudicating authority to first decide the issue of jurisdiction after the availability of Hon’ble Supreme Court decision in the case of Mangli Impex and then on merits of the case - appeal allowed by way of remand.
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