|
Advanced Search Options
Case Laws
Showing 21 to 40 of 2034 Records
-
2018 (3) TMI 2017 - ITAT DELHI
Disallowance u/s 14A r.w.r. 8D - CIT(A) deleted the addition - HELD THAT:- Admittedly assessee has not earned any exempt income during the year under consideration, accordingly we do not find any infirmity in the observations of Ld. CIT(A) in deleting the addition made by Ld.AO in respect of the disallowances computed u/s 14A.
Interest free loan advanced to sister concern u/s 36(1)(iii) - assessee has diverted its interest bearing funds to its related person and accordingly interest @ 10.75% on interest free loans is disallowed - HELD THAT:- As decided in assessee’s own case for assessment year 2009-10 and 2010-11 CIT(A) has deleted the disallowance on the basis that nexus between interest bearing funds and interest free advance as well as adequacy of interest free fund available with the assessee, have not been analysed by the A.O. during the assessment proceedings, nor the explanation given by assessee that the loan was given for business purpose has been rebutted by the A.O.
CIT(A) has concluded that the assessee having adequate non-interest bearing funds, it can be inferred that the loan given has no bearing on the interest expense claimed by assessee on borrowed funds. In absence of rebuttal of above stated material finding given by Ld.CIT(A) on the issue even before the Tribunal, we do not find reason to interfere with the first appellate order, which is comprehensive and reasoned one as well as supported by the ratio laid down in the above cited decisions Decided in favour of assessee.
Addition being loan amount written off given to sister concern - AO disallowed alleged amount as the said amount written off was not taken as income in any preceding year, assessee is not in the business of giving loans, and that, conditions laid down in section 36(2) of the Act were not fulfilled - HELD THAT:- In the present case the write off of loss has not arisen during the course of business of assessee as money lending is not the activity that is carried on by assessee and it has never been the claim of assessee nor it has been proved before the authorities below. There has been no evidence that is placed on record to prove that the loss has occurred during the year. Therefore the claim of loss by assessee does not hold good on both these counts. The reasons given by CIT (A) to allow the claim as business loss are irrelevant and is without considering the provisions of the Act. CIT (A) also accepted that the issue stands covered in the favour of assessee by the decision of Hon’ble Gujarat High Court in the case of Manohar N Shah [2005 (10) TMI 37 - GUJARAT HIGH COURT] - loss was proved to have been arisen during the year which was actually a business loss. Therefore we are inclined to reverse the findings of Ld. CIT (A) and restore the order of Ld. AO. Decided in favour of revenue.
-
2018 (3) TMI 2016 - RAJASTHAN HIGH COURT
Clandestine production and removal - demand based on electricity consumption - Requirement to give an opportunity of the cross examination to the assessee in absence of any such prayer made - cross examination can be claimed by the parties as their legal right or not - HELD THAT:- Taking into consideration the fact that the finding with regard to electricity consumption is contrary to decision of Supreme Court in COMMISSIONER OF C. EX., MEERUT-I VERSUS RA CASTINGS PVT. LTD. [2010 (9) TMI 669 - ALLAHABAD HIGH COURT], the said issue is required to be answered in favour of the assessee and against the department - it was held in the said case that we are of the view that the findings of the Tribunal are based on the material on record and they cannot be said to be without any material and perverse. We find that the Revenue has invoked the proviso to Section 11A(1)of the Act but no case has been made out in the show cause notices or in the adjudication order that there were any misstatement, suppression of fact or fraud on the part of the respondents. No substantial question of law arises from the order of the Tribunal.
The other issue which has been raised by both the parties relying on the documents which have been recovered during search from M/s. Sharma Steel Rolling Mills Pvt. Ltd., the matter requires reconsideration by original authority as the addition was also based on the documents found during surprise visit made by the authorities to the factory premises of the assessee and was not solely based on electricity consumption.
The matter is remitted back to the original authority after setting aside the order of tribunal - Appeal allowed by way of remand.
-
2018 (3) TMI 2015 - CESTAT MUMBAI
Valuation of the stock lot of printing paper imported - no available price of contemporaneous goods even in NIDB data - NIDB data can be made the sole basis for rejection of the transaction value or not - HELD THAT:- In terms of import of stock lot goods, admittedly the price is a negotiated price and agreed upon by the importer and the supplier. The same has to be first rejected by the Customs authority by production of evidences which are positive and cogent. There being no such evidence in the present case to discard the transaction value, the Revenue's contention of NIDB data cannot be allowed to be justifiable.
There are no merits in the Revenue's stand - the impugned order is set aside - appeal allowed.
-
2018 (3) TMI 2014 - ITAT PUNE
TP Adjustment - disallowing assessee’s payment for intragroup services by TPO and DRP as assessee has not been able to substantiate from the documents, the need of services rendered and benefit derived from the services provided by AE - what's benefit derived by assessee from the services rendered by AE? - case of the assessee is that assessee has paid cost for sharing intra-group services, provided by the parent company , which in-turn provided various services which inter alia includes marketing, recruitment and technical support etc. to the group companies in Asia-Australia region - HELD THAT:- TPO has admitted that documentary evidence has been submitted by the assessee. TPO time & again has questioned justification of the payment with reference to benefit received.
We are of considered view that questioning the need of having such services from any outside agency by the assessee is beyond purview of Revenue Authorities. In so far as benefit derived from services is concerned, the Authorities below without appreciating the documents furnished by assessee has formed opinion that the assessee has not benefited from services provided by Rehau Pte. Ltd. Singapore.
As decided in EKL Appliances Ltd [2012 (4) TMI 346 - DELHI HIGH COURT] it is not necessary for the assessee to show that any legitimate expenditure incurred by him was also incurred out of necessity. It is also not necessary for the assessee to show that any expenditure incurred by him for the purpose of business carried on by him has actually resulted in profit or income either in the same year or in any of the subsequent years. The only condition is that the expenditure should have been incurred “wholly and exclusively” for the purpose of business and nothing more. It is this principle that inter alia finds expression in the OECD guidelines.
So long as the expenditure or payment has been demonstrated to have been incurred or laid out for the purposes of business, it is no concern of the TPO to disallow the same on any extraneous reasoning. As provided in the OECD guidelines, he is expected to examine the international transaction as he actually finds the same and then make suitable adjustment but a wholesale disallowance of the expenditure, particularly on the grounds which have been given by the TPO is not contemplated or authorized.
Thus Authorities below have erred in determining cost of Intra Group Services as ‘Nil’ and making adjustment in respect of international transactions pertaining to intra group services provided by AE to the assessee. Decided in favour of assessee.
-
2018 (3) TMI 2013 - ITAT DELHI
TP Adjustment - comparable selection - Exclusion of Accentia Technologies Limited, TCS Eserve Ltd. and TCS Eserve International Limited - HELD THAT:- Accentia is into the field of medical transcription, billing and coding and also developing its own software products; that it has undergone extra ordinary events making huge addition in its assets impacting profitability because of acquisition and its segmental information is not available; it is not a suitable comparable vis-à-vis. taxpayer which is a routine ITES service provider. So, we order to exclude Accentia from the final set of comparables.
TCS Eserve - As following the decision rendered by the coordinate Bench of the Tribunal in Ameriprise India Pvt. Ltd. [2016 (1) TMI 1117 - ITAT DELHI] we are of the considered view that because of functional dissimilarity having high brand value, highly fluctuating margin and huge size of the company and its operation, TCS Eserve is not a valid comparable vis-à-vis. the taxpayer which is into providing back office services related to maintenance and database working on minimal risk having meager turnover of Rs. 14.15 crores.
TCS Eserve International is a big brand operating as full-fledged risk bearing company and its profitability has increased by 174% and 286% in FY 2008-09 and 2009-10 respectively due to acquisition and the fact that it is functionally dissimilar, it cannot be a valid comparable vis-à-vis. taxpayer which is into providing back office services related to maintenance and database working on minimal risk as a captive service provider. So, we order to exclude TCS Eserve International as a comparable from the final list of comparables.
Deduction u/s 10A - benefit of inclusion of expenditure incurred by the taxpayer in foreign currency towards communication charges and expenditure incurred by the taxpayer in foreign currency in database fee - HELD THAT:- When it is not in dispute that for the purpose of section 10A, the term "total turnover" is to be interpreted by computing the entire export turnover as well as domestic turnover and in case, expenses are to be excluded from export turnover, the same are to be excluded from the total turnover for the purpose of computing the deduction u/s. 10A - AO has erred in not excluding the communication charges and expenditure incurred by the taxpayer in foreign currency in database fees from the total turnover for the purpose of calculating the deduction u/s. 10A - Decided in favour of the assessee.
-
2018 (3) TMI 2012 - CESTAT MUMBAI
Valuation of imported goods - rechargeable batteries - rejection of declared value - existence of reason to enhance the value based upon the market enquiry or not - HELD THAT:- It is seen that the appellant had declared the value of the imported goods, based upon the transaction value entered between him and the foreign supplier. The said transaction value does not stand accepted by Revenue on the basis of doubt entertained by them, resulting in conducting of market survey in India and rejecting the declared value of subject goods. It is well settled law that for enhancing the assessable value of the imported goods, Revenue has to first reject the transaction value by producing sufficient and cogent evidences.
In the present case there is nothing on record to indicate or to establish that the transaction value entered between the exporter and the importer was not correct and there was under-hand compensation being given to the exporter. Admittedly, Revenue's case is based upon the market enquiry conducted in India which are bound to result in variations.
In the absence of any evidence to reflect upon the incorrect transaction value, there are no justifiable reason to enhance the value based upon the marker enquiry.
Appeal allowed.
-
2018 (3) TMI 2011 - MADHYA PRADESH HIGH COURT
Maintainability of application - recalling of witness for re-examination or calling of a witness for examination can be permitted under section 311 Cr.P.C. after the arguments are over and before the pronouncement of judgment - Whether the view expressed in the case of IMRAT SINGH AND ORS. VERSUS STATE OF M.P. [2015 (1) TMI 1496 - MADHYA PRADESH HIGH COURT], is in accordance with the provisions of section 311 of the Cr.P.C.?
HELD THAT:- In Imrat Singh's case, after final arguments were heard and case was posted for judgment by the trial Court, an application was filed by the prosecution for recall of Dr. Anoop Verma to clarify as to whether bone of left leg or right leg was fractured. In the earlier evidence, he had deposed that the fracture was found in the left leg but as per the Xray, it was right leg which was found to be fractured. The learned Trial Court permitted the doctor to be re-examined but the learned Single Bench relied upon a Single Bench judgment of Rajasthan High Court in Cheeku Singh v. State of Rajasthan [1997 (9) TMI 648 - RAJASTHAN HIGH COURT] held that the order passed by the trial Court was contrary to law, having been passed on the date when the case was fixed for judgment. Reference was also made to section 353 of the Criminal Procedure Code, 1973.
The Supreme Court in VIJAY KUMAR VERSUS STATE OF U.P. AND ORS. [2011 (8) TMI 1354 - SUPREME COURT], while dealing with the nature, scope and object of section 311 of the Code and the power of the Court under section 165 of the Evidence Act, came to the conclusion that for the just decision of the case, power to summon any person as a witness can be exercised at any stage of the trial provided the evidence which may be tendered by a witness is germane to the issue involved or if proper evidence is not adduced or relevant material is not brought on record due to any inadvertence.
In a heinous crime for an offence punishable under sections 363, 366A, 376A, 302 of IPC and section 4 of the Act, any lapse in the prosecution in not citing the witnesses in the report under section 173 of the Code, cannot be permitted to defeat the object of orderly society. The crime against women and the children are increasing, affecting the social fabric of the society. Therefore, technicality or the lapse of the prosecution in not citing relevant witnesses or the mistake of the public prosecutor in not proving the relevant evidence will not bar the jurisdiction of the Court under section 311 of the Code. It may be stated that when the prosecution filed an application under section 311 of the Code, the only objection raised by the defence was that the argument had been heard.
Keeping in view that the purpose of criminal trial is orderly society and that to find out the truth, the summoning of witnesses cannot be said to be unjustified as the petitioner would have complete opportunity to cross-examine the witnesses. It is not the case of lacuna but the failure of the prosecution to produce relevant evidence during the course of trial. Such evidence is not filling of a lacuna but a case of oversight in the management of the prosecution which cannot be stated to be irreparable lacuna.
The judgment of this Court in Imrat Singh, does not lay down correct law and is thus, overruled. Relying upon the Supreme Court judgments referred to above, an application under section 311 of the Code can be filed at any stage of trial even after conclusion of the argument as the trial is complete only after the judgment is announced, section 353 of the Code contemplates that the judgment in every trial shall be pronounced in an open Court immediately after termination of the trial.
Let the matter be placed before the Bench as per Roster for final disposal.
-
2018 (3) TMI 2010 - ALLAHABAD HIGH COURT
Smuggling - Betel Nuts - notified under Section 11-A (d) of the Customs Act, 1962 - HELD THAT:- List for admission/final disposal on the expiry of the above period along with M/S BAJRANG ENTERPRISES VERSUS COMMISSIONER OF CUSTOMS (PREVENTIVE) & 2 OTHERS [2017 (11) TMI 2036 - ALLAHABAD HIGH COURT].
In the meantime the consignment of betel nuts along with the vehicle carrying it which has been detained/seized at the behest of the Customs Department shall be released in favour of the petitioner forthwith subject to the petitioner furnishing facility other than cash and bank guarantee in respect of the value of the betel nuts seized that is Rs.27,98,145/-.
-
2018 (3) TMI 2009 - CESTAT CHANDIGARH
Refund of education/ higher education cess - amount paid in terms of N/N 56/2002-CE dated 14.11.2002 - HELD THAT:- The issue has been settled by the Hon'ble Apex Court in the case of M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT], it is held that assessee is entitled to claim refund/ self credit of education/higher education cess, which is a part of duty, as per Notification No. 56/2002-CE dated 14.11.2002.
The impugned orders set aside - appeal allowed.
-
2018 (3) TMI 2008 - ALLAHABAD HIGH COURT
Smuggled goods or not - Betel Nuts - not notified under Section 11-A (d) of the Customs Act, 1962 - HELD THAT:- Learned counsel appearing for the respondents may file counter affidavit within a month. Two weeks' thereafter are allowed to the petitioners for filing rejoinder affidavit.
List for admission/final disposal on the expiry of the above period along with M/S BAJRANG ENTERPRISES VERSUS COMMISSIONER OF CUSTOMS (PREVENTIVE) & 2 OTHERS [2017 (11) TMI 2036 - ALLAHABAD HIGH COURT], M/S PAUL INTERNATIONAL & ANOTHER VERSUS COMMISSIONER OF CUSTOMS & 3 OTHERS [2017 (12) TMI 1868 - ALLAHABAD HIGH COURT] which have already been entertained on the above point.
In the meantime the consignment of betel nuts along with the vehicle carrying it which has been detained/seized at the behest of the Customs Department shall be released in favour of the petitioner forthwith subject to the petitioner furnishing facility other than cash and bank guarantee in respect of the value of the betel nuts seized that is Rs.19,38,563/-.
-
2018 (3) TMI 2007 - SUPREME COURT
Acquittal of the accused - prosecution failed to prove the alleged offences against the Accused beyond reasonable doubt - Mens rea - HELD THAT:- In the present case, when the facts as to the incident and the role of the Accused could not be proved beyond reasonable doubt, whether the motive behind the same is dispute regarding boundary wall or political rivalry becomes irrelevant.
The prosecution was not able to establish the guilt of the Accused persons beyond reasonable doubt. Further, the High Court should not have re-appreciated evidences in its entirety, especially when there existed no grave infirmity in the findings of the trial court. There exists no justification behind setting aside the order of acquittal passed by the trial court, especially when the prosecution case suffers from several contradictions and infirmities, No specific assertion could be proved regarding the role and involvement of the Accused persons. Further, certain actions of the Victim-Respondents themselves are dubious, for instance admining themselves later in a Multi-speciality hospital without proper cause. It has further come to notice that Respondents have already compromised and have executed a compromise deed to that extent, though the same is not the basis for our conclusion.
The conviction order passed by the High Court set aside - the order of acquittal passed by the trial court re-affirmed - appeal allowed.
-
2018 (3) TMI 2006 - ITAT RAIPUR
Bogus work payment expenses - bogus excavation charges - During the course of the survey u/s. 133A statement of Shri Rajesh Agrawal was recorded who offered an amount on account of bogus trade creditors as his undisclosed income for the year under consideration - HELD THAT:- The work contract payments made to 8 persons are duly supported by respective bills furnished by them and so also excavation work done by Saumya Mining Company. The recipients of the work contract have shown their income in their respective return filed on presumptive taxation basis u/s. 44AD of the Act.
The contention of the A.O. that the recipients are not maintaining any details is ill-founded because of the immunity granted u/s. 44AD of the Act. The recipients are not obliged to maintain any books of accounts if they return their profit u/s. 44AD of the Act. Further, the income of Saumya Mining Ltd. has been accepted as such in its assessment framed u/s. 143(3) of the Act.
In our considered opinion, when the contract receipts of the assessee has been accepted in toto. We fail to understand if the assessee has not incurred these expenditures then how could it execute the contract work allotted to it.
Also as the books of accounts of the assessee are audited and the A.O. has not pointed out any defect in the books of accounts of the assessee. More importantly, the allegation that the assessee’s gross profit and net profit have substantially reduced during the year is also not correct.
Assuming, yet not accepting, these expenditures are bogus then the profit of the assessee would be higher by Rs. 10 crores which would make the gross profit around 25% which is not conceivable in this line of business. Decided against revenue.
-
2018 (3) TMI 2005 - SUPREME COURT
Seeking grant of anticipatory bail - Director of Technical Education was competent to grant/refuse sanction or not - appellant claims that he had merely passed a bonafide administrative order in his official capacity - whether directions can be issued by this Court to protect fundamental right Under Article 21 against uncalled for false implication and arrests? - HELD THAT:- The jurisdiction of this Court to issue appropriate orders or directions for enforcement of fundamental rights is a basic feature of the Constitution. This Court, as the ultimate interpreter of the Constitution, has to uphold the constitutional rights and values. Articles 14, 19 and 21 represent the foundational values which form the basis of the Rule of law. Contents of the said rights have to be interpreted in a manner which enables the citizens to enjoy the said rights - Enforcement of a legislation has also to be consistent with the fundamental rights. Undoubtedly, this Court has jurisdiction to enforce the fundamental rights of life and liberty against any executive or legislative action. The expression 'procedure established by law' Under Article 21 implies just, fair and reasonable procedure.
There are complaints of violation of human rights because of indiscriminate arrests. The law of arrest is of balancing individual rights, liberties and privileges, duties, obligations and responsibilities. On the one side is the social need to check a crime, on the other there is social need for protection of liberty, oppression and abuse by the police and the other law enforcing agencies. This Court noted the 3rd Report of the National Police Commission to the effect that power of arrest was one of the chief sources of corruption of police. 60% of arrests were unnecessary or unjustified. The arrest could be justified only in grave offences to inspire the confidence of the victim, to check the Accused from committing further crime and to prevent him from absconding. The National Police Commission recommended that the police officer making arrest should record reasons. This Court observed that no arrest can be made merely because it is lawful to do so.
It is, thus, too late in the day to accept an objection that this Court may not issue any direction which may be perceived to be of legislative nature even if it is necessary to enforce fundamental rights Under Articles 14 and 21 of the Constitution.
Potential impact of working of Atrocities Act on spreading casteism - HELD THAT:- The interpretation of the Atrocities Act should promote constitutional values of fraternity and integration of the society. This may require check on false implications of innocent citizens on caste lines.
Anticipatory bail - whether there is an absolute bar to the grant of anticipatory bail in which case the contention for revisiting the validity of the said provision may need consideration? - HELD THAT:- In Balothia [1995 (2) TMI 469 - SUPREME COURT], Section 18 was held not to be violative of Articles 14 and 21 of the Constitution. It was observed that exclusion of Section 438 Code of Criminal Procedure in connection with offences under the Act had to be viewed in the context of prevailing social conditions and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate the victims and prevent or obstruct them in the prosecution of these offenders, if they are granted anticipatory bail - the persons who are alleged to have committed such offences can misuse their liberty, if anticipatory bail is granted. They can terrorise the victims and prevent investigation.
It is well settled that a statute is to be read in the context of the background and its object. Instead of literal interpretation, the court may, in the present context, prefer purposive interpretation to achieve the object of law. Doctrine of proportionality is well known for advancing the object of Articles 14 and 21. A procedural penal provision affecting liberty of citizen must be read consistent with the concept of fairness and reasonableness.
There are no hesitation in holding that exclusion of provision for anticipatory bail will not apply when no prima facie case is made out or the case is patently false or mala fide. This may have to be determined by the Court concerned in facts and circumstances of each case in exercise of its judicial discretion. In doing so, we are reiterating a well established principle of law that protection of innocent against abuse of law is part of inherent jurisdiction of the Court being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest.
It is difficult to hold that the legislature wanted exclusion of judicial function of going into correctness or otherwise of the allegation in a criminal case before liberty of a person is taken away. The legislature could not have intended that any unilateral version should be treated as conclusive and the person making such allegation should be the sole judge of its correctness to the exclusion of judicial function of courts of assessing the truth or otherwise of the rival contentions before personal liberty of a person is adversely affected.
Issue of safeguards against arrest and false implications - HELD THAT:- There is need to safeguard innocent citizens against false implication and unnecessary arrest for which there is no sanction under the law which is against the constitutional guarantee and law of arrest laid down by this Court.
In absence of any other independent offence calling for arrest, in respect of offences under the Atrocities Act, no arrest may be effected, if an Accused person is a public servant, without written permission of the appointing authority and if such a person is not a public servant, without written permission of the Senior Superintendent of Police of the District. Such permissions must be granted for recorded reasons which must be served on the person to be arrested and to the concerned court. As and when a person arrested is produced before the Magistrate, the Magistrate must apply his mind to the reasons recorded and further detention should be allowed only if the reasons recorded are found to be valid. To avoid false implication, before FIR is registered, preliminary enquiry may be made whether the case falls in the parameters of the Atrocities Act and is not frivolous or motivated.
Appeal allowed.
-
2018 (3) TMI 2004 - CESTAT ALLAHABAD
Reversal of CENVAT Credit - sludge/waste, inevitably arising during manufacture of paper and paperboard - provisions of Rule 6(3) of CCR, 2004 - HELD THAT:- The issue herein is squarely covered in favour of the appellants by ruling of the Coordinate Bench of this Tribunal in M/S. MAGNUM VENTURES VERSUS CCE., GHAZIABAD [2014 (4) TMI 416 - CESTAT NEW DELHI] where it was held that emergence of sludge and pulper waste during the course of manufacture of paper or paper board cannot be held to the result of any manufacturing activity.
Reversal of credit not required - appeal allowed.
-
2018 (3) TMI 2003 - DELHI HIGH COURT
Foreign exchange loss - assessee had received amounts in the normal course of its business at the agreed contractual rates, from the foreign purchasers and that consequently the loss was purely speculative - Whether a speculative transaction, hit by Section 43(5)? - As per ITAT action of the CIT (A) in accepting the explanation of the assessee and in deleting the disallowance in question made by the Assessing Officer thus cannot be held unjustified - HELD THAT:- This Court is of the opinion that the findings of fact by the CIT(A) and the ITAT are concurrent and based upon sound reasons. Both the appellate authorities have relied upon CIT Vs. Woodward Governor India (P) Ltd. [2009 (4) TMI 4 - SUPREME COURT]. The hedging transaction was necessary for the assessee to protect itself from currency fluctuation risks it was inevitably exposed in the case of export trade. The assessee had reported identical transactions in the past which were accepted by the Revenue. For these reasons, the Court holds that no substantial question of law arises.
Advance of interest free loans to a related party - HELD THAT:- The findings of fact again are that the lending was on the basis of commercial expediency.
TDS u/s 195 - Non deduction of TDS on account of export commission - HELD THAT:- The findings of fact are that the foreign entity receiving the amounts were not Indian residents and subject to tax and that the services rendered were rendered outside India.
-
2018 (3) TMI 2002 - BOMBAY HIGH COURT
Restraint on petitioners and its affiliates from transferring, alienating, encumbrance or disposing off any of its assets without specific permission/leave of the arbitral tribunal - HELD THAT:- The arbitral tribunal after considering the material on record rendered a prima facie finding that the respondent No. 1 had made out a prima facie case and was likely to succeed and would not be in a position to realise the said outstanding amount if they were permitted to transfer their assets. The arbitral tribunal also rendered a prima facie finding that the Reliance Group was now trying to transfer the assets. The submission of the learned senior counsel for the Reliance Group that neither there was any pleadings in the application filed by the respondent No. 1 under Section 17 of the Act to this effect nor was any prima facie finding rendered by the arbitral tribunal that the Reliance Group was trying to transfer the assets with the intention to defeat the decree, if any, passed in favour of the respondent No. 1, cannot be accepted.
The arbitral tribunal was not exercising jurisdiction to bring an unsecured creditor into the list of secured creditors and its affiliates as also not to delete and adversely impact rights of the secured creditors particularly when it was an admitted case that the proceedings before the Insolvency and Bankruptcy Board under the Court were stated to be pending. The arbitral tribunal has also clarified in paragraph 37 of the impugned order that the said interim order was without prejudice to any order that may be passed by the Board/Courts of competent jurisdiction.
The arbitral tribunal has also taken a cognizance of the admitted fact that the proceedings under the Insolvency and Bankruptcy Code has been initiated against the Reliance Group, however the said application is yet to be admitted by the National Company Law Tribunal. The arbitral tribunal ultimately held that the respondent No. 1 has made out an arguable case and thus the arbitral tribunal was of the opinion that in the event, the respondent No. 1 is denied any relief, it would be an irretrievable injury to the respondent No. 1. The balance of convenience is also in favour of the respondent No. 1 and not in favour of the Reliance Group.
Merely on the basis of such presumption that though such unsecured creditor succeeds, such unsecured creditor will not be able to recover any amount, no relief of interim measures can be refused to such unsecured creditor. That is not the legislative purpose and intent of Order XXXVIII Rule 5 of CPC. If such an argument as advanced by the learned senior counsel for the petitioners is accepted, no unsecured creditor will be entitled to even file any proceedings for recovery of its legitimate dues and pray for interim measures by way of injunction or otherwise against such debtors to secure its claims. Such debtors cannot be allowed to deal with its properties with such intention of depriving the unsecured creditors of the fruits of success in the arbitral proceedings.
Supreme Court in the case of Raman Tech & Process Engg. Co. & Anr. v. Solanki Traders [2007 (11) TMI 611 - SUPREME COURT] has held that where the defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case. It is held that the plaintiff has to show prima facie case that his claim is bonafide and valid and also satisfy the court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him, before power is exercised under Order XXXVIII Rule 5 CPC. In this case, the respondent No. 1 has satisfied all these criteria laid down by the Supreme Court in the said judgment. The Reliance Group admitted the substantial part of the claim of the respondent No. 1 and has boldly urged before this Court that even if the respondent No. 1 succeeds, the said party would not be able to recover any amount from the Reliance Group. In my view, this type of stand taken by the Reliance Group has to be rejected at the threshold.
The arbitral tribunal in this case, has rightly rendered a prima facie finding that the respondent No. 1 has made out a case that it would succeed finally in the arbitral proceedings and the balance of convenience was in favour of the respondent No. 1 - the arbitral tribunal has considered all the relevant facts and principles of law and have rightly granted interim measures in favour of the respondent No. 1. The arbitral tribunal has granted such interim measures restraining the Reliance Group from transferring, alienating, encumbrance or disposing off any of its assets without prior permission/leave of the arbitral tribunal.
The commercial arbitration petitions are dismissed.
-
2018 (3) TMI 2001 - SC ORDER
Classification of services - Site Formation, Clearance, Excavation, Earthmoving and Demolition Services - activities of excavation and removal of overburden/waste rock/secondary ore by the assessee at the mines - period from 16-6-2005 to 30-11-2007 - HELD THAT:- The respondent, fairly accepts that insofar as this issue is concerned, it is yet to be decided.
Valuation of the service tax - HELD THAT:- The issue is covered by judgment in COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT], and decided in favour of the respondent.
-
2018 (3) TMI 2000 - ITAT DELHI
Disallowance u/s 40(a)(ia) - site rents paid to the Delhi Transport Corporation (DTC) - non-deduction of TDS - scope of second proviso inserted by the Finance Act, 2012 - HELD THAT:- Tribunal in assessee own case 2007-08 [2017 (10) TMI 1631 - ITAT DELHI] has held that in terms of proviso to section 40(a)(ia) which has been held to be retrospective in nature by the Hon’ble Delhi High Court in Ansal Land Mark Township Pvt. Ltd [2015 (9) TMI 79 - DELHI HIGH COURT] no disallowance could be made u/s 40(a)(ia) of the Act.
The proviso requires that if the assessee is not deemed to be assessee in default under the 1st proviso to subsection 1 of section 201, then the assessee shall be deemed to have deducted and paid the tax and, thus, no disallowance would be called for under section 40(a)(ia) of the Act.
For complying with the finding of the Tribunal in the case of the assessee itself for assessment year 2007-08, the assessee is required to demonstrate that it fulfilled the conditions provided in above proviso to section 201(1) - we restore the matter to the file of AO for verification of the conditions of proviso to section 201(1) - Appeal of the Revenue is allowed for statistical purposes.
-
2018 (3) TMI 1999 - BOMBAY HIGH COURT
Decree for Eviction - validity of order passed by the first Appellate Court on the application for stay that was moved by the respondents during pendency of the appeal filed by them challenging the decree for eviction - amount of occupation charges - HELD THAT:- Considering the fact that in the year 2012 the respondents had offerred an amount of Rs.49/ per sq. ft. as reasonable rent for the purposes of extension of lease coupled with the fact that as per the ready reckoner the occupation charges as determined by the petitioners come to Rs.1,93,877/, by taking a prima facie view of the matter I feel the Appellate Court ought to have granted higher amount of occupation charges to be paid by the respondents. Thus taking an overall view of the matter and in the light of the offer made at Exhibit50 as well as reply filed on behalf of the petitioners to the stay application, the reasonable amount of occupation charges would come to Rs.1,30,000/ per month to be paid during pendency of the appeal.
The order dated 15/03/2017 is partly modified. It is directed that from March 2018 and during pendency of the appeal the respondents shall pay occupation charges of Rs.1,30,000/ per month. This amount is determined without prejudice to the rights of the parties.
Petition allowed in part.
-
2018 (3) TMI 1998 - ITAT DELHI
Disallowance of Interest - borrowed funds were utilized for the purpose other than business activities or not - HELD THAT:- According to the balance sheet of the assessee, the unsecured loans of Rs.6.05 crores are available to the assessee and as per contention of the Ld. Counsel for the assessee, the interest free advance of Rs.5.48 crores are available to the assessee which exceeded the loan amount of Rs.4.36 crores. Therefore, the assessee had sufficient funds other than borrowed funds for giving the amount in question as loan to others and such findings of fact have not been rebutted by the Revenue authorities. Thus, the conditions of section 36(1)(iii) of the Act have been complied with in this case. Further, the assessee specifically pleaded before Ld.CIT(A) that borrowed funds of the assessee are for a sum of Rs. 5.15 crores and utilization of the borrowed funds are of Rs.5.22 crores in making deposit with the bank, cash in hand and fixed assets which also tally with the balance sheet of the assessee. Therefore, Ld. Counsel for the assessee rightly contended that the amount of loans on which interest has been paid, has been used for the purpose of business.
In the case of COMMISSIONER OF INCOME-TAX AND ANOTHER VERSUS RADICO KHAITAN LTD. [2004 (9) TMI 37 - ALLAHABAD HIGH COURT], Hon’ble Allahabad High Court decided the issue in favour of the assessee in which the finding recorded by the Tribunal was that “the assessee company had sufficient funds other than the borrowed money for giving the amount in question as loan to its sister concern, which finding had not been specifically challenged in the present appeal, the conditions of section 36(1)(iii) of the Act had been complied with and, therefore, the assessee company was entitled to full allowance of the amount of the interests paid by it on borrowed capital.”
The assessee, therefore, proved that borrowed funds have been used for the purpose of business, therefore, no disallowance u/s 36(1)(iii) of the Act could be made - Appeal of assessee allowed.
........
|
