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Showing 21 to 40 of 1677 Records
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2019 (12) TMI 1660 - CESTAT CHENNAI
Levy of service tax - Auctioneers’ Service - conducting auction of goods and property on consideration, for which trading charges, handling and incidental expenses and appraising charges were collected - Business Support Service - activity relating to pledging of jewellery - HELD THAT:- The Show Cause Notice carries the explanation through statement of one of the office bearers of the appellant-society wherein he has inter alia stated that their objective was “facilitating the marketing of agricultural produce to its members at a remunerative price”, “arranging for and undertaking of purchase, storing, processing and marketing of the agricultural and other produce or products of its members or of the society to the best advantage”; that normally members would bring their produces to the society for auction on the scheduled date and on receipt of produces, they are given a receipt with identification lot number; that the same are stacked/stored in the auction yard, etc.
The very same activities were carried on by the assessee in the case of M/s. Attur Agricultural Producers [2019 (8) TMI 262 - CESTAT CHENNAI] relied on by the Learned Advocate for the assessee wherein, after considering various arguments, this Bench has held that the demands on the above counts were not sustainable - the above ruling would apply squarely to the present case as well.
The impugned orders set aside - appeal allowed.
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2019 (12) TMI 1659 - SC ORDER
Valuation of imported goods - Pig Iron - rejection of declared value - enhancement of value based on the data available with the NIDB - it was held by CESTAT that the department cannot reject the declared value and assess the goods as per the NIDB data.
HELD THAT:- There are no reason to interfere with the judgment/order impugned - the Civil Appeal is dismissed.
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2019 (12) TMI 1658 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- As the application under Section 9 is barred by limitation and there is a pre-existence of dispute, it is held that application under Section 9 was rightly rejected by the Adjudicating Authority.
The appeal is dismissed
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2019 (12) TMI 1657 - ALLAHABAD HIGH COURT
Refund of confiscated brass scrap's sale proceeds with interest - HELD THAT:- The CESTAT passed an order in favour of the petitioner. The direction was given to the revenue to return the scrap. The revenue challenged the said order. Their appeal was dismissed by the High Court in the year 2016. The administration thus passed an order on 22.06.2016 to return the sale proceeds as scrap was sold in between. A cheque was also enclosed alongwith it but it was not accepted, as he was demanding interest. The interest would not be payable to the petitioner in absence of the order by the CESTAT. The petitioner has not even challenged the order dated 22.06.2016.
The view taken by the opposite parties is supported by the judgment of the Apex Court in the case of UNION OF INDIA VERSUS UPPER GANGES SUGAR & INDUSTRIES LTD. [2005 (1) TMI 109 - SUPREME COURT]. Thus the demand of interest on a sum of Rs.1,99,327/- is not admissible. However, if the amount aforesaid has not been accepted by the petitioner earlier, the opposite parties are directed to send the cheque again within a period of one month from the date of production/receipt of certified copy of this order.
Petition disposed off.
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2019 (12) TMI 1656 - SECURITIES AND EXCHANGE BOARD OF INDIA, MUMBAI
Violation of Regulation 11(1) of the SAST Regulations - Non issue of open offer - Huge rise of traded volumes and price of the shares on BSE - Whether agreement/decision/intention to acquire the shares and control of the Target Company by the acquirer triggers the open offer requirement under Regulations 10 and 12 of SAST Regulations, 1997 respectively? - HELD THAT:- Any person either by himself or along with the persons acting in concert who “agrees to acquire shares or voting rights” or “agrees to acquire control over the target company” would come within the definition of ‘acquirer’ irrespective of the time when actual acquisition of shares happened.
As per Regulation 2(1)(b) i.e. definition of "acquirer"; Regulation 10 relating to acquisition of 15% or more shares or voting rights; Regulation 12 relating to acquisition of control and the provisions of Regulation 14(1) and 14(3) relating to public announcement, open offer requirement under SAST Regulations, 1997 are triggered by person along with persons acting in concerts on (i) agreeing to acquire shares of the Target Company above the limits prescribed; (ii) agreeing to acquire control of a target company. Therefore, agreement/decision/intention to acquire the shares and control of the Target Company by the acquirer triggers the open offer requirement under Regulations 10 and 12 of SAST Regulations, 1997 respectively.
Whether the Noticees had the agreement/decision/intention to acquire the shares of FFSL and to take control of the management of FFSL? - Whether the MOU is only in the nature of mere understanding or has taken the character of agreement which records the rights and obligations agreed between the parties? - HELD THAT:- As no proof of communication of rescission of “MOU” was given by the Noticees. Instead, even as per their case, some tranches of physical share certificates were continued to be transferred in the name of BPJ nominees in the month of April, 2012. If the MOU has been rescinded in November 2010, there was no occasion for acceptance of physical share certificates later in April 2012 which only go to show the Noticees were acting still pursuant to the MOU. Further, BPJ vide letter dated January 30, 2019 has stated that AMPL and NVPL had backed out in the month of June 2010. However, instead of rescinding the MOU even at that stage, their shares were subsequently transferred to Mr. R Rathinmala and Mr. B Satya Prakash respectively showing further that the argument of rescission of “MOU” is only an afterthought.
It is further noted the basis of the trigger of respective provisions of the SAST Regulations, 1997 in the instant matter is on the basis of “agreement to acquire” shares and control. Therefore, the consideration of arguments which goes to establish that the actual acquisition of threshold limits of shares or actual acquisition of control did not happen as advanced by the Noticees, does not require consideration. Accordingly, those arguments are not considered.
As per the MOU dated May 27, 2010, Noticees (except) BPJHUF had an agreement / decision / intention to acquire 58.08% of the shares of FFSL for a consideration of Rs. 21,76,650 /- (by issuing cheques / post-dated cheques) and control of management of FFSL by appointing majority of directors on the Board on FFSL.
Whether the Noticees are acquirers/Persons Acting in Concert? - As upon perusal of MOU dated May 27, 2010 and letters attached thereto, I note that BPJ-HUF was neither the part of MOU dated May 27, 2010 nor issued any cheques to Mr. Natarajan or promoter of FFSL for acquisition of shares of FFSL. Hence, on May 27, 2010, BPJ-HUF did not have any agreement / decision / intention to acquire the shares of FFSL and control over FFSL. Thus, on May 27, 2010 BPJ-HUF was neither the acquirer nor person acting in concert for the acquisition of 21,76,650 equity shares (58.08%) of FFSL and control over FFSL. Hence, find merit in the said contention of BPJ-HUF.
Whether the Noticees have violated the provisions of Regulations 10 and 12 of SAST Regulations, 1997 and Section 12A(f) of SEBI Act, 1992 as alleged in the SCN? - In the instant matter, it is noted that Noticees (except BPJ-HUF) had agreed / decided that nominees of BPJ shall be appointed on the Board of FFSL leaving one promoter director. Thus, on May 27, 2010 Noticees (except BPJ-HUF) had agreed / decided to the right to appoint the majority of directors on the Board on FFSL i.e. to have control over the management of FFSL. Thus, Noitcees (except BPJ-HUF) were required to make public announcement of offer within 4 working days from the date of deciding the changes that would result in control over management of FFSL. However, it is noted that Noticees (except BPJ-HUF) did not made any public announcement of offer within 4 working days from May 27, 2010. Hence, Noticees (except BPJ-HUF) had violated the provisions of regulation 12 read with regulation 14(3) of SAST Regulations, 1997.
Thus, the allegation for the violation of the provisions of Regulations 10 and 12 of SAST Regulations, 1997 and Section 12A(f) of SEBI Act, 1992 against Noticees (except BPJHUF) stands established.
BPJ-HUF had not violated the provisions of Regulations 10 and 12 of SAST Regulations, 1997. Thus, the allegation for the violation of the provisions of Regulations 10 and 12 of SAST Regulations, 1997 and Section 12A(f) of SEBI Act, 1992 against BPJ-HUF does not stand established.
What directions should be issued against the Noticees? - As the fact that the scrip is under suspension further strengthens the case that in the interest of shareholders / investors, it is fit case to direct the Noticees (except BPJ-HUF) to make a public announcement of open offer.
ORDER:
B. P. Jhunjhunwala, Ruhi Jhunjhunwala, Mala Jhunjhunwala, Skyed Network Private Limited, Anurodh Merchandise Private Limited, Nandlal Vyapaar Private Limited, BPJ Holdings Private Limited and Radhasoami Resources Limited shall make a public announcement to acquire shares of the target company in accordance with the provisions of the SAST Regulations, 1997, within a period of 45 days from the date of service of this order;
B. P. Jhunjhunwala, Ruhi Jhunjhunwala, Mala Jhunjhunwala, Skyed Network Private Limited, Anurodh Merchandise Private Limited, Nandlal Vyapaar Private Limited, BPJ Holdings Private Limited, Radhasoami Resources Limited shall, alongwith the consideration amount, pay interest at the rate of 10% per annum on the consideration amount to the eligible shareholders as per the ratio laid down in Clariant International Limited and another vs. SEBI [2004 (8) TMI 390 - SUPREME COURT] after adjustment of dividend paid, if any.
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2019 (12) TMI 1655 - KERALA HIGH COURT
Seeking for a writ of certiorari to quash Ext. P14 to the extent of rearranging the work done by the petitioner at his risk and cost - seeking writ of mandamus directing the respondents to release the Earnest Money Deposit (EMD) - HELD THAT:- The PWD authorities have no dispute regarding the fact that in the bill of quantities, petitioner was asked to give a bid 'without taxes'. Therefore, there is justification on the petitioner to have given a rate without taxes. In fact, the Chief Engineer's office of PWD was apprehensive about the low rate quoted by the petitioner and therefore, petitioner had given a clarification of the rate analysis.
Petitioner was called upon to execute the agreement based on Ext. P9. Therefore, it is clear that there is ambiguity in the tender (BoQ) as a result of which petitioner had given a quote without taxes. But when he was called upon to submit an undertaking as per Ext. P6 format, the format included the value inclusive of all taxes, levies statutory fees etc at which time, he had objected to the same stating that his rate did not include any taxes. But without considering the same, Ext. P8 letter of acceptance had been issued calling upon him to undertake the work for an amount, ₹ 7,99,99,990/-, inclusive of taxes. Since the petitioner was not agreeable, the work was cancelled at his risk and cost and his EMD became liable to be adjusted.
Though the issue projected in the writ petition comes within the realm of a contract, if there is an arbitrary action on the part of the authorities and the issue projected does not involve substantial questions of fact, it is always open for a writ Court to consider whether there is any arbitrariness or illegality in the act of the Governmental authorities.
It could be seen that the acceptance of the offer made by the petitioner was not in terms with the tender. His quoted price was without taxes and he cannot be called upon to undertake the work inclusive of all taxes. Under such circumstances, we have no hesitation to hold that the 3rd respondent was not justified in terminating the contract at the risk and cost of the contractor. It is also settled law that when an offer is made in a tender, acceptance has to be unconditional. If any conditions are imposed in the acceptance letter, it does not become valid as such. The termination of the contract is therefore totally illegal and arbitrary.
The respondents shall refund to the petitioner the EMD of ₹ 22,60,000/- within a period of one month from the date of receipt of a copy of the judgment - Appeal allowed.
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2019 (12) TMI 1654 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
Violation of Regulation 11(1) of the SAST Regulations - period of limitation - artificial price rise in the scrip during the period 2004-2008 - appellant submitted before us that the order is liable to be quashed on the sole ground of the delay - HELD THAT:- The time line of the events would show that the alleged violation had occurred between March, 2004 to June, 2004. The appellant had disclosed the transaction to the BSE at that time. The show cause notice however was issued in the present case dated 7th November, 2017. The investigation report itself would show that for non availability of the documentary evidences the investigating authority did not recommend taking drastic action to direct making of public announcement. Thus, there was inordinate delay in initiation of the proceedings.
No escape from the conclusion that the proceedings are required to be quashed. Therefore the appeal is hereby allowed.
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2019 (12) TMI 1653 - DELHI HIGH COURT
Fee payable to CA for Special Audits directed u/s 142(2A) - Nomination of the Special Auditor by the IT Department - Validity of order passed by the Micro and Small Enterprises Facilitation Council, New Delhi ( ‘MSME Council) whereby the matter has been referred to arbitration before the Delhi International Arbitration Centre (DIAC) - HELD THAT:- Respondent no. 1 submits that the jurisdiction of the MSME Council is de hors the provisions of the Income Tax Act as relied upon Section 24 of the MSMED Act, 2006 to argue that the provisions in Sections 15 to 23 shall have effect notwithstanding the provisions of the Income Tax Act. He also refers to the decision of M/s Bharat Heavy Electricals Ltd vs. Micro and Small Enterprises & Anr[2019 (2) TMI 2082 - DELHI HIGH COURT] This issue would require consideration.
Once Respondent no. 2 has been paid its statutory audit fees, in terms of the orders passed by this Court, the jurisdiction of MSME Council could not have been invoked.
Till the next date of hearing, the order dated 19.09.2019 and the proceedings emanating therefrom shall remain stayed.
List on 21st April, 2020.
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2019 (12) TMI 1652 - BOMBAY HIGH COURT
Contempt of Court - Violation of specific undertaking to repay the balance outstanding amount to the petitioner bank within a total period of two months and 15 days from 05/05/2017 - disobedience of the consent order and violation of undertaking given by the respondent amounting to civil contempt as defined in Section 2(b) of the Contempt of Courts Act, 1971 or not.
Interpretation of the clauses of the minutes of the order dated 05/05/2017, in terms of which this Court disposed of the writ petition.
HELD THAT:- The minutes of the order and all its clauses are required to be read as a whole to come to a conclusion as to whether the respondent can be said to have committed contempt of this Court under Section 2(b) of the aforesaid Act, due to breach of undertaking specifically recorded in the said minutes of the order. The undertaking, the breach of which is alleged by the petitioner is found in Clause 8 of the above quoted minutes of the order. In the said clause, the respondent was required to sell the movable properties handed over by the petitioner bank to raise amount for depositing it towards dues in the loan account - It is an admitted position that the respondent did not deposit the balance amount due within the said period of two months and 15 days. Therefore, the said undertaking was not honoured by the respondent.
There can be no doubt about the fact that a contempt petition be maintainable even if order or decree of the Court of which contempt is alleged, is executable. But, in the said judgment of the Hon’ble Supreme Court in the case of Rama Narang Vs. Ramesh Narang and another [2006 (4) TMI 553 - SUPREME COURT], it was specifically laid down that ultimately the matter was one of discretion of the Court, having regard to the facts of the case. It is relevant to note that after the said judgment was delivered, the Hon’ble Supreme Court had occasion to consider the very same matter on the question as to whether the alleged contemnor had indeed committed contempt of the consent order of the Hon’ble Supreme Court by breach of undertakings. The subsequent judgment of Rama Narang Vs. Ramesh Narang and another. After discussing the facts of that case and applying the position of law, the Hon’ble Supreme Court came to a conclusion, in the facts of that case, that the alleged contemnor had committed contempt of the consent order passed by the Hon’ble Supreme Court.
Whether in the facts of a particular case the undertaking given by a party is such that the breach of the undertaking has the consequence of defiance and disobedience of the Court itself? - HELD THAT:- In the present case, the consequence of the failure on the part of the respondent to abide by the undertaking incorporated in Clause 8 of the minutes of the order, was clearly an action available to the petitioner bank under Clause 9 of the minutes of the order. As noted above, this might appear to be onerous for the petitioner bank, but, since it agreed to such specific terms in the minutes of the order, full effect needs to be given to the fall out of Clauses 8 and 9 read together. It is relevant that the manner in which the minutes of the order were drafted, the possession and attachment of the flat has continued with the petitioner bank and it is not as if the respondent got away with the property mortgaged to the bank, as well as being relieved of the obligation of returning the outstanding amount. In this situation, this Court is unable to come to a conclusion that failure on the part of the respondent to abide by the requirements of Clause 8 of the minutes of the order would result in punishment of the respondent for contempt of this Court under Section 12 of the said Act.
Considering over all facts and circumstances of the present case, it appears that the respondent did send communication to the petitioner bank that she tried to abide by the undertaking given in Clause 8 of the said minutes of the order, but, she was unable to abide by the same due to certain circumstances. It was also stated that the respondent herself was making efforts to bring buyers for the flat in question so that the outstanding amount could be paid to the petitioner bank. It is also an admitted position that the respondent did deposit the amount of Rs.20,00,000/- and subsequently, an amount of Rs.7,00,000/- during pendency of the proceedings. Although, the said amount is far less than the amount due to the petitioner bank, as per Clause 9 of the said minutes of the order, the petitioner bank is at liberty to dispose of the said flat to realize the outstanding amount - this Court is of the opinion that the manner in which the minutes of the order were drafted, particularly Clauses 8 and 9 thereof, in the facts of the present case, it cannot be said that the respondent has committed civil contempt of this Court under Section 2(b) of the said Act.
The contempt petition is dismissed.
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2019 (12) TMI 1651 - ITAT AHMEDABAD
Addition of other expenses u/s. 14A r.w.r. 8D - assessee has explained that it has not used borrowed fund for making investment in share however it has disallowed employee devoted towards the activity of M.F. - AO stated that top management was involved in taking decision and the decision making process was very complicated which required careful analysis from the top management - CIT(A) has dismissed the appeal of the assessee after considering the size of the investment stating that one employee cannot make investment decision - HELD THAT:- We observe that disallowance of only 10% of one employee as a cost of administrative expenditure to the amount is not sufficient and appropriate looking to the size of the investment and the quantum of exempt income earned from the investment which was claimed as exempt.
We are of the view that involvement of top executives and use of other business office equipment like computer etc. and office premises in respect of investment activities cannot be ruled out, therefore, we are of the view that it will be reasonable to restrict the disallowance under administrative expenditure to the amount of Rs. 4 lacs. Appeal of the assessee is partly allowed.
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2019 (12) TMI 1650 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Exclusion of period of 100 days only with effect from 1st May, 2019 to 9th August, 2019, i.e., the date of pendency of the proceedings before the National Company Law Tribunal and the Hon’ble Supreme Court - HELD THAT:- In the case of Y. SHIVRAM PRASAD AND ASSET RECONSTRUCTION COMPANY (INDIA) LTD. VERSUS S. DHANAPAL & ORS. AND SERVALAKSHMI PAPER LTD. & ORS [2019 (5) TMI 386 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], this Appellate Tribunal observed and held that As the liquidation so taken up under the ‘I&B Code’, the arrangement of scheme should be in consonance with the statement and object of the ‘I&B Code’. Meaning thereby, the scheme must ensure maximisation of the assets of the ‘Corporate Debtor’ and balance the stakeholders such as, the ‘Financial Creditors’, ‘Operational Creditors’, ‘Secured Creditors’ and ‘Unsecured Creditors’ without any discrimination. Before approval of an arrangement or Scheme, the Adjudicating Authority (National Company Law Tribunal) should follow the same principle and should allow the ‘Liquidator’ to constitute a ‘Committee of Creditors’ for its opinion to find out whether the arrangement of Scheme is viable, feasible and having appropriate financial matrix. It will be open for the Adjudicating Authority as a Tribunal to approve the arrangement or Scheme in spite of some irrelevant objections as may be raised by one or other creditor or member keeping in mind the object of the Insolvency and Bankruptcy Code, 2016.
The ‘Liquidator’ to first act in accordance with the decision in Y. Shivram Prasad by following the procedure of Sections 230-232 of the Companies Act, 2013. It is noticed that for the purpose of proceedings under Sections 230 to 232 of the Companies Act, 2013, it is open to the Adjudicating Authority to grant more than 90 days of period - for completion of the ‘Liquidation Process’, average two years’ time has been granted. The sale of assets can be done only if the ‘Liquidator’ fails to revive the Company by pursuing the proceedings under Section 230 vis-à-vis 232 of the Companies Act, 2013 as a going concern.
Appeal disposed off.
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2019 (12) TMI 1649 - MADRAS HIGH COURT
Entitlement for recovery of advances interest (by Bank) - classification of the loan account as Non Performing Assets - amount payable in conditional interim order - HELD THAT:- This Court is of the considered view that a prima facie case has been made out for grant of interim orders for the reason that the petitioner appearsto have made substantial payments and despite that further action is contemplated against the properties of the petitioner Company, which may result in irreparable loss and grave hardship to him and balance of convenience as on today lies in favour of the petitioner. Hence there shall be an order of adinterim injunction, as prayed for till 21.01.2020. However it is made clear that till the disposal of the writ petition, the writ petitioners shall not create any third party rights in respect of the properties in question.
Call on 21.01.2020.
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2019 (12) TMI 1648 - THE SECURITIES APPELLATE TRIBUNAL MUMBAI
Offence under SEBI Act - fraudulent scheme of issuing GDR with an ulterior motive - HELD THAT:- Heard the appeal at the stage of admission. Learned senior counsel for the respondent submitted that the orders are yet to be passed in the proceedings and all the grievances of the appellant can be made before the Whole Time Member. He also fairly submitted that the proceedings can be possibly disposed of within six months from today. In view of the said statement, the appeal is disposed of at this stage with no orders as to costs.
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2019 (12) TMI 1647 - CESTAT MUMBAI
Valuation - cost of Pre-Delivery Inspection (PDI) and After Sales Service (ASS) charges required to be included in the assessable value of the motor vehicles sold by the appellant to the dealers or not - charges/expenditures are incurred by the dealers from their profit margin - HELD THAT:- Both sides fairly agree that the issue is covered by the judgment of Hon'ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, MYSORE VERSUS M/S TVS MOTORS COMPANY LTD. [2015 (12) TMI 874 - SUPREME COURT]. Their Lordships considering the issue in the context of amended Section 4 of Central Excise Act, 1944 w.e.f. 1.7.2000 observed that PDI charges and free ASS charges would not be included in the assessable value under Section 4 of the Act for the purposes of paying excise duty.
The Pre Delivery Inspection (PDI) and After Sales Service (ASS) charges cannot be included in the assessable value of the motor vehicles - the appeals are allowed.
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2019 (12) TMI 1646 - DELHI HIGH COURT
Maintainability of petition - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- The respondents have issued a circular dated 29.10.2019 on the subject of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. A copy of the same has been tendered in Court and taken on record. Learned counsels for both the parties state that the petitioner is covered by the said circular as well.
This petition has become infructuous and is disposed of as such.
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2019 (12) TMI 1645 - ITAT KOLKATA
Depreciation on goodwill - goodwill in subject was acquired during merger of two companies - AO disallowed the depreciation on goodwill merely on the ground that the goodwill is not reflected in the post-merger audited financial statement and the tax audit report of the assessee - HELD THAT:- As decided in M/s Shristi Infrastructure Development Corporation Ltd. [2019 (9) TMI 1700 - ITAT KOLKATA] assessee has submitted that post approval of merger by the Hon’ble High Court of Delhi and Hon’ble Calcutta High court, the audited financial statement clearly reflected the amount of goodwill that arose pursuant to the merger.
The same was also filed with the A.O - Though in the tax audit report the tax auditor has not considered the depreciation on goodwill, but the same cannot be the basis of disallowance. We find that such disallowance made by the Assessing Officer is erroneous. On appeal by assessee, CIT(A) has appreciated the facts of the assessee company and deleted the addition. That being so, we decline to interfere in the order passed by the ld. CIT(A), his order - Decided against revenue.
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2019 (12) TMI 1644 - JHARKHAND HIGH COURT
Levy of penalty for not making the payment of the electricity duty at the prescribed rate, within the due dates - Jurisdiction of Deputy Commissioner, Commercial Taxes to pass such order - Order passed under review - Section 9-A of the Bihar Electricity Duty Act - HELD THAT:- From the perusal of Rule 12 (1) of the Bihar Electricity Duty Rules, it is thus, clear that the Commercial Taxes Officer and the Deputy Commissioner of Commercial Taxes are the officers of the same rank, so far as the assessment order is concerned. Rule 14(10) & (11) clearly prescribe that for reviewing any order, other than the order passed by the Commissioner, the sanction of the Commissioner in writing is required, and such review cannot be made beyond the period of 12 months from the date of the passing of the order sought to be reviewed, and further, an order can be reviewed by an officer, who is the successor-in-office of the officer who had passed the order sought to be reviewed, only with the previous sanction of the Commissioner, even if the order is sought to be reviewed within the period of 12 months.
A bare perusal of Section 5-A (2) of the Act shows that even the orders under this provision have to be passed by the 'prescribed' authority. Such authority may be prescribed either in the Act or in the Rules. If the contention of the learned counsels for the State is accepted that this provision is not subject to any Rules, then it is incumbent upon the learned counsel for the State to show as to where in the Act such authority has been prescribed, which could pass the order under Section 5-A(2) of the Act.
The impugned penalty orders as contained in Annexure-12 to the writ applications, clearly show that they have been passed as review orders, and Annexure-10 to the writ applications, clearly show that in view of the audit objection made by the audit team of the Accountant General, the review proceedings had been initiated, and the letters had been issued to the Commissioner of Commercial Taxes, for granting sanction for review. According to Section 9-A (4), the prescribed authority to review an order, would be the officer who had passed the order, or his successor-in-office - The submission of the learned counsels for the State that the order is not an order passed in review, rather it is an order passed suo-motu, by an authority under the Act, imposing penalty, cannot be accepted. It is the settled principle of law that an order is to be read as it is, and its contents / nature cannot be improved by subsequent affidavits / submissions.
Thus, it is clear and apparent that the impugned orders of penalty dated 30.1.2014, as contained in Annexure-12 to the writ applications, are actually the orders passed in review, in exercise of the powers under Section 9A (4) of the Act, read with Rules 14 (10 ) and (11) of the Rules, and these orders have been passed without any previous sanction in writing, of the Commissioner of Commercial Taxes, and have also been passed beyond the period of un-extendable limitation of one year. As such, these penalty orders cannot be sustained in the eyes of law. Consequently, the subsequent orders / Judgement passed by the Commissioner of Commercial Taxes, Ranchi, and the Tribunal, also cannot be sustained in the eyes of law.
All the penalty orders are hereby, set aside. Consequently, the penalty amount deposited / recovered from the petitioner Company are directed to be refunded / adjusted in the future bills towards the electricity duty.
Writ Applications allowed.
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2019 (12) TMI 1643 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - threshold limit of salary not being paid - Appellant submits that even if the salary of recent year is taken into consideration, which is more than Rs.1 Lakh, it having not been paid by the Corporate Debtor, the application under Section 9 was maintainable.
HELD THAT:- From application under Section 9 filed by the Appellant, it is found that the appellant has shown particulars of the claim under following heads - Salary for the period December, 2014 to March, 2015, which is barred by limitation; Reimbursement of amount for FY 2014-15 as per SAP Ledger Statement, which is also barred by limitation; Salary for the period August, 2016 to March, 2017 plus TDS; TDS of certain period; Leave encashment for July, 2013 - March, 2017 - however, the Adjudicating Authority noticed that the claim for the period April, 2016 to March, 2017 do not pertain to the Corporate Debtor - 'M/s DSC Ltd.' but to M/s DSCL - FENGSHUN-WANAG Consortium' as stated by Appellant in Form-5.
The application was filed by the Appellant with an intent to receive the dues from the Corporate Debtor and not with intention for resolution or liquidation, therefore, the Adjudicating Authority rightly rejected the prayer of the Appellant - So far as the question as to whether the documents are forged or not is concerned, it cannot be determined by the Adjudicating Authority (National Company Law Tribunal) or this Appellate Tribunal and therefore, the Adjudicating Authority rightly not deliberated on such issue.
Appeal dismissed.
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2019 (12) TMI 1642 - ITAT MUMBAI
Withholding liability u/s 195 - Royalty payment as under India-Singapore DTAA - copyrighted material - CIT(A) held that the payment for software licence is royalty, is the access to “significant proprietary database” being allowed to the assessed by the software in question - HELD THAT:- We find that assessee to database, in the context of materially similar DTAA provision, has been held to be outside the ambit of "royalty". While holding so, the coordinate bench, in the case of ITO vs Cadila Healthcare Ltd. [2017 (1) TMI 554 - ITAT AHMEDABAD] as held that Departmental Representative could not demonstrate as to how there was use of copyright. In our considered view, it was simply a case of copyrighted material and therefore the impugned payments cannot be treated as royalty payments.
When database access by itself does not result in taxation as royalty, such database access being coupled with software licence cannot bring the software hence consideration within the scope of royalty. Nothing, therefore, turns on the reasoning adopted by the learned CIT(A).
As per the taxation of payment for licencing of software, we find that the issue is covered in favour of the assessee by a coordinate bench decision in the case of ADIT vs TII Team Telecom International Ltd. [2011 (8) TMI 497 - ITAT MUMBAI]
Payment for licence fee of software is not taxable in nature. No contrary decision, which is binding in nature, has been cited before us.
We uphold the plea of the assessee and hold that no tax was deductible from remittance in question. Decided in favour of assessee.
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2019 (12) TMI 1641 - ITAT DELHI
TP Adjustment - Comparable selection - HELD THAT:- Rane TRW Steering Systems Ltd. - As the export sale of the assessee is 98.90% of the total sales whereas the export sale of Rane TRW Steering Systems Ltd., which primarily caters to the domestic market is 11.47% of the total sales. Apart from the above, Rane TRW Steering Systems Ltd., is engaged in the research and development activities in their product/process development and thereby has incurred huge Research & Development expenses during the year which is verifiable from the annual audit report placed - It also holds intangible assets which are verifiable from the notes on fixed assets - In view of all these i.e., diversified business, low export sale, non-availability of segmental data, incurring of expenditure on R&D activities and presence of intangibles, we are of the considered opinion that Rane TRW Steering Systems Ltd., cannot be considered as a comparable company. We, therefore, direct the A.O./TPO to exclude Rane TRW Steering Systems Ltd., from the list of comparables.
ZF Steering Gear (India) Ltd. - As relying on various decisions to the proposition that the comparables have to be excluded on account of carrying out research and development activities and considering the fact that the comparable company has very low export sales as compared to that of the assessee, we hold that ZF Steering Gear (India) Ltd., cannot be considered as a comparable.
Negative working capital adjustment for the differences between the working capital of comparable companies vis-à-vis the assessee - As in the instant case, majority of sales i.e., 94% of the total sales made by the assessee is to its related parties, therefore, the assessee, in our opinion, is running its business with no working capital risk. Therefore we are of the considered opinion that the TPO/DRP were not justified in making negative working capital adjustment. Therefore, the additional ground raised by the assessee is allowed.
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