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2021 (7) TMI 1450
TDS u/s 195 - Disallowance u/s. 40(a)(i) - payment towards communication and connectivity charges in Form 3CEB - CIT(A) deleting the disallowance made holding that the expenses involved therein as reimbursement cost - HELD THAT:- We note that the assessee made its contentions before the CIT(A) vide its submissions wherein the CIT(A) reproduced the relevant part of such submissions in his impugned order but however the CIT(A) did not discuss the same in detail while recording reasons for holding such payment cannot be considered as fees for technical services. He simply held the said payment was in the nature of reimbursement of cost allocation made by the BBPLC in respect of providing IT support services to assessee i.e. BSS so therefore, as rightly contended by the ld. DR, as agreed by the ld. AR, we find no reasons recorded by the CIT(A) in support of his finding in deleting the disallowance made by the AO u/s. 40(a)(i) of the Act is not justified.
Thus, we deem it proper to remand the matter to the file of CIT(A) for its fresh adjudication. The assessee is liberty is file evidences, if any, in support of its claim. Thus, the grounds raised by the Revenue are allowed for statistical purpose.
Cross objection of assessee - As contended that if at all the disallowance u/s. 40(a)(i) is sustained, without prejudice to such disallowance the assessee contended that it is entitled for enhanced deduction to the extent of disallowance u/s. 10A - HELD THAT:- Since, we have taken our view in the aforementioned paragraphs in remanding the matter to the file of CIT(A) for its fresh adjudication in respect of the issue u/s. 40(a)(i) of the Act, in our opinion, the issue raised in cross objection does not survive before this Tribunal but however the liberty is afforded to the assessee to raise the same before the CIT(A). The CIT(A) shall take up the issue while deciding the issue u/s. 40(a)(i) of the Act and pass order in accordance with law. Cross objection filed by the assessee is dismissed.
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2021 (7) TMI 1449
Seeking to recall the complainant Sujata Sutar, to prove the memory card seized in the present case - Section 311 of the Code of Criminal Procedure (Cr.P.C.) - HELD THAT:- No doubt, under Section 311 Cr.P.C., any Court may, at any stage of any inquiry, trial or other proceeding summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined, if it is essential to the just decision of the case, however, at the same time, the said power under Section 311 cannot be used to fill in the lacunae in the prosecution evidence. Having regard to the peculiar facts of this case that the impugned order issuing witness summons for recalling the complainant and panch was passed after arguments were advanced and written submissions were filed, on the aspect of memory card not being proved, it was not permissible for the learned Judge to pass the impugned order. The same, in the facts, would clearly tantamount to filling up the lacunae in the case. It would also result in causing serious prejudice to the petitioner.
The impugned order dated 2nd February 2021 passed by the learned Additional Sessions Judge, Pune, below Exhibit 1 in Special Case (ACB) No. 70 of 2015, is quashed and set-aside - petition allowed.
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2021 (7) TMI 1448
Jurisdiction - power of Adjudicating Authority to interfere before the quasi-judicial determination - locus standi to challenge the inclusion of DSKL in the CIRP - necessary party to application - due date to file EOI is a commercial decision or not - it was held by NCLAT that before approval of the Resolution Plan the Adjudicating Authority can entertain or dispose of the question of priorities or any question of law or facts, arising out of or in relation to CIRP or Liquidation proceedings - HELD THAT:- There are no cogent reason to entertain the Appeal. The judgment impugned does not warrant any interference.
The Appeal is dismissed.
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2021 (7) TMI 1447
Income from house property - notional ALV u/s 22 - AO bringing to tax the notional ALV of the unsold properties being vacant commercial, residential/self-occupied assets in terms of Section 22 - Difference between the original Grounds of Appeal and the revised one - HELD THAT:- As fresh plea of the assessee based on the judgment of Neha Builders P. Ltd. [2006 (8) TMI 105 - GUJARAT HIGH COURT] and also Chennai Properties & Investments Limited [2015 (5) TMI 46 - SUPREME COURT] for the proposition that the income from the properties in the instant case be held to be assessable under the head ‘income from business or profession’ and that, if it is so held, the same would oust the charge made by the Assessing Officer by invoking Section 22 of the Act under the head ‘income from house property’. Even if it is taken that the aforesaid plea is the new plea raised by the assessee, it is quite clear that all the facts necessary to adjudicate the same are available on record and, therefore, we had made known to the parties that the said plea is admissible, and accordingly, both sides had addressed us on the merits of the same also.
Addition u/s 22 - We are in concurrence with the assertion made by the learned CIT-DR that the matter stands fully covered in favour of the Revenue even with regard to the plea of the assessee based on the judgment of Neha Builders P. Ltd. (supra). In fact, in the case of Ansal Housing Finance & Leasing Company Ltd. (2016 (11) TMI 208 - DELHI HIGH COURT] considered the ratio of the judgment Chennai Properties & Investments Limited (supra) and held that the same was not applicable to the facts of the case and, accordingly, had reiterated its earlier judgment on the instant issue in the case of Ansal Housing Finance & Leasing Company Ltd. (supra). Notably, assessee’s own case was also clubbed with the case of Ansal Housing Finance & Leasing Company Ltd. (supra) before the Hon’ble High Court. Therefore, in this view of the matter, we find no merit in the plea raised by the assessee. Accordingly, the order of learned CIT(A) is liable to be affirmed.
Disallowance of deduction u/s 80IA(4)(iii) - HELD THAT:- Action of the lower authorities in denying the claim of the assessee for deduction u/s 80IA(4)(iii) cannot be faulted for the reasons ascribed in their respective orders. The requisite notification entitling the assessee for the deduction has been rejected by the CBDT, as is emerging from the record and therefore, we find no reason to interfere with the action of the lower authorities. The plea of the assessee that in case the notification is received in future in pursuance to assessee’s review petition pending before the CBDT, it is sufficient to direct the AO that in case, he is approached by the assessee with the requisite notification on a later date, he shall deal with the same in accordance with law.
Nature of expenses - Expenses incurred in connection with issue of equity shares to Qualified Institutional Buyers (QIBs) - Assessee raising alternative plea for deduction of the impugned expenditure based on Section 35D - HELD THAT:- So far as the plea of the assessee for deduction of the impugned expenditure incurred on issue of shares to QIBs in terms of Section 37(1) of the Act is concerned, the same is liable to be decided against the assessee following the precedents in the assessee’s own case.
Assessee raising alternative plea - We find no reasons to restrict the assessee from raising a plea for deduction of the impugned expenditure based on Section 35D of the Act.
The impugned expenditure incurred in connection with issue of shares be considered in terms of Section 35D of the Act even if before the lower authorities, the claim revolved around Section 37(1) of the Act only. In fact, in the case before the Hon'ble Supreme Court, the matter by the lower authorities was considered in the light of the earlier judgment in the case of Brooke Bond India Limited [1997 (2) TMI 11 - SUPREME COURT] an approach which was not approved by Hon'ble Supreme Court having regard to the fact that Section 35D of the Act came on the Statute after the rendering of the decision in the case of Brooke Bond India Limited (supra). Therefore instant claim of the assessee would fall for consideration in terms of Section 35D of the Act provided of course, the expenditure is in connection with issue of ‘Public subscription’ of shares as per Section 35D(2)(c)(iv) of the Act.
QIBs qualify to be treated as public shareholders in terms of the SEBI listing requirements. Therefore, the most pertinent condition prescribed in Section 35D(2)(c)(iv) of the Act, i.e., the expenditure is in connection with ‘public subscription’ of shares stands fulfilled.
Whether matter may be remanded back to the Assessing Officer to ascertain whether QIBs are public shareholders or not? - In our considered opinion, remanding the matter on this aspect to the Assessing Officer would only prolong the litigation and not achieve any substantive purpose.
It is not a case where the fresh alternate plea of the assessee, based on Section 35D of the Act, is required to be examined on the basis of any fresh facts or material, which was hitherto not before the Assessing Officer. The short point is as to whether the ratio of the judgment of Hon'ble Supreme Court in the case of Brooke Bond India Limited (supra) would apply in the context of claim under Section 35D or not? This aspect is clearly answered in the case of Shasun Chemicals & Drugs Limited (2016 (9) TMI 1199 - SUPREME COURT). Furthermore, on the issue of classification of QIBs as a part of ‘public shareholders’ is concerned, the said issue is covered by the decision of our Coordinate Benches. Thus, the alternative plea of the assessee with regard to the allowability of expenditure incurred on issue of shares to QIBs is allowable in terms of Section 35D.
We reiterate that so far as the claim of deduction under Section 37(1) of the Act is concerned, the same is decided against the assessee but the claim under Section 35D of the Act is allowed in terms of our above discussion. Thus, assessee partly succeeds in this Ground of appeal.
LTCG - Surplus arising on transfer of its capital asset, viz., infrastructure assets to its wholly owned subsidiary - primary dispute on this aspect is with regard to Section 47(iv) of the Act whereby the claim of the assessee is that the “transfer” in question is not exigible to the charge of capital gains under Section 45 - HELD THAT:- The terms of the agreement bring out that the development and maintenance of the Trunk Infrastructure was the responsibility of the assessee in terms of the project awarded by the Government of Uttar Pradesh. The assessee was to earn user charges etc. from this asset in terms of the Award by the Government of Uttar Pradesh. This Trunk Infrastructure was transferred to AAIL for the reason that the assessee desired that the infrastructure related work and its maintenance and servicing to end users by a Special Purpose Vehicle. The supporting infrastructure for linking the Trunk Infrastructure to end users was being developed by the assessee itself but through AAIL. Another important feature was that AAIL was not permitted to transfer the Trunk Infrastructure to any third party.
Notably, Section 45 of the Act provides that any profits and gains arising from a transfer of a capital asset effected in the previous year will be chargeable to income tax under the head ‘capital gains’. Such capital gains are deemed to be the income of the previous year in which such transfer took place. Section 47 enumerates a list of transactions which would not be considered as a transfer under Section 45(1) of the Act, which, interalia includes Sub-section (iv) prescribing for transfer of a capital asset by a company to its wholly-owned Indian subsidiary. From the aforesaid legal position and the terms of arrangement available before us, it is evident that the transfer in question is of a capital asset under development i.e., capital work-in-progress and such transfer being to a 100% subsidiary, cannot be treated as a transfer for the purpose of Section 45 of the Act in view of Section 47(iv) of the Act. The reliance placed by assessee on the decision of our Coordinate Bench in the case of Mother Diary Fruits & Veg.(P) Ltd. (2011 (1) TMI 66 - ITAT DELHI) is quite apt under the present circumstances.
The case of the Income-tax Authorities, that it was a transfer of ‘an asset employed in the business’ and therefore Section 47(iv) is not attracted, is quite unjustified and untenable. It is a well-settled legal proposition that the claims made by the assessee have to be examined in the light of the applicable factual and legal position and not merely on the basis of the position taken in the financial statements or otherwise. In this view of the matter, we do not find the stand of the CIT(A) or the Assessing Officer to be tenable in this regard. Insofar as the plea of the learned DR to remand the matter back to the lower authorities is concerned, the same, in our view, is not, at all, merited. It has been demonstrated by the assessee before us, and which has not been controverted by the learned DR, that the entire material was before the lower authorities and there is nothing to show that the same has not been examined by the lower authorities. Therefore, considering the entirety of the circumstances, and in view of the aforesaid discussion, we hereby allow the claim of the assessee.
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2021 (7) TMI 1446
Permission for withdrawal of petition - resolution plan of respondent no.4 company approved - petitioners seeks leave to withdraw the present petition with liberty to assail the impugned order on merits before the appropriate appellate forum - HELD THAT:- The petition is, accordingly, dismissed as withdrawn with liberty as prayed for.
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2021 (7) TMI 1445
Income tax proceedings against company dissolved / insolvent - Revision u/s 263 against company wherein proceedings u/s 7 of Insolvency and Bankruptcy code, 2016 has already been initiated against - HELD THAT:- Admittedly, the proceedings under section 7 of Insolvency and Bankruptcy code, 2016 have been initiated by the National Company Law Tribunal in CP(IB) 307 of 2020 vide order dated 9 March 2021. The copy of the order is placed on record. There are prohibitions for the institution of fresh proceedings under section 14 of the Code 2016 against such company which overrides the provisions of Income Tax Act. As per section 14 of the Code, the order of the NCLT for initiation of liquidation of the Corporate Debtor would result in a moratorium on the initiation or continuation of legal proceedings by or against the corporate debtor being the assessee.
We hold that the order passed under section 263 of the Act is not maintainable and liable to be quashed. Before parting, it is pertinent to note that AO is at liberty to make an application for re-institution of this appeal after the resolution process ends under IBC 2016. Ground of appeal of the assessee is allowed.
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2021 (7) TMI 1444
Clubbing of all the FIRs pertaining to Bike Bot Scheme scam, wherein the petitioner has since been arrayed as an accused along with other accused - allegation against the petitioner is that the investors amount of the Bike Bot Scheme scam launched by GIPL has been diverted to the petitioner's company - HELD THAT:- The High Court has prima facie held that the application said to have been moved by the petitioner's company, does not bear the signature of the person named in the FIR and the said person had resigned from the post of Director prior to the date of moving the application and the commercial space has been allotted by the petitioner in favour of M/s. GIPA and the sister concern and the possession of commercial space has also been taken. It is further noted by the High Court that the allotted premises is reportedly attached by the Enforcement Directorate in the proceedings started against the main accused but accounts of the petitioner's company has not been attached.
Taking totality of the circumstances and the fact that the petitioner has been in jail for quite some time (since December, 2020) in connection with the FIRs in question, we find no reason to depart from the bail orders granted by the High Court of Judicature at Allahabad, in two registered criminal cases, referred to above and direct that the petitioner shall be released on bail with respect to all the FIRs emanating from Bike Bot Scheme scam registered within the jurisdiction of the State of U.P. or NCT of Delhi, as the case may be, or at any other place, which is not known to the petitioner, for the time being.
The petitioner shall be released on bail on the same terms and conditions in connection with all FIRs as ordered by the High Court of Judicature at Allahabad - Bail application allowed.
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2021 (7) TMI 1443
Enhancement of age of superannuation of its employees from fifty-eight to sixty years - whether the High Court has transcended the limits of its power of judicial review? - HELD THAT:- Since the enhancement of the age of superannuation is a 'public function' channelised by the provisions of the statute and the service Regulations, the doctrine of promissory estoppel cannot be used to challenge the action of NOIDA. Though NOIDA sought the approval of the State government for the enhancement with 'immediate effect', it never intended or portrayed to have intended to give retrospective effect to the prospectively applicable Government order. The representation of NOIDA could not have given rise to a legitimate expectation since it was a mere recommendation which was subject to the approval of the State Government. Hence, the doctrine of legitimate expectation also finds no application to the facts of the present case.
In STATE OF UTTAR PRADESH VERSUS DAYANAND CHAKRAWARTY AND ORS [2013 (7) TMI 1222 - SUPREME COURT] the court directed payment of arrears deeming the employees to have worked till sixty years in spite of no interim order being issued in that regard because (i) the Office Memorandum was held ultra vires; (ii) Harwinder Kumar, Jaswant Singh, and Radhey Shyam Gautam had already held that the age of retirement of the Jal Nigam employees shall be 60 years unless a Regulation prescribing a lower retirement age is issued in terms of Regulation 31, and had extended this benefit to all the parties who had filed writ petitions. Therefore, the above observation must be read in the context of the distinct factual situation in the case.
The argument of the employees that since they had moved the Chief Minister with a representation in August 2012 before their date of superannuation which was to fall at the end of the month and that they should have the benefit of the enhancement in the age of superannuation has no substance. On 31 August 2012, the Respondents moved the High Court but no interim relief was granted to them and they attained the age of superannuation. They have not worked in service thereafter. Since the High Court's judgment dismissing the challenge to the government order dated 30 September 2012 has attained finality, the submission cannot be accepted.
The impugned judgment and order of the Division Bench at Lucknow of the High Court of Judicature at Allahabad is set aside - petition dismissed.
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2021 (7) TMI 1442
Addition u/s 68 - non-genuine/unexplained share capital/share premium - as alleged assessee company received share premium of Rs. 90 per share from related persons - CIT (A) deleted the addition on the grounds that once Rule 11UA has been notified by the CBDT, the rule would be applicable for the entire assessment year and not for the transactions done after 29.11.2012 - as submitted that the amounts have been received as loans initially which were subsequently converted into share capital
HELD THAT:- The amounts have utilized for purchase of land and if the cost of the land is taken into consideration, the share premium would stands substantiated. It was argued that even otherwise as on 06.03.2013, the date on which the share capital has been received in the books of the company, the valuation under Rule 11UA as per the DCF method is acceptable valuation method for the purpose of clause (viib) of Section 56(2). The valuation report submitted to the CIT (A) as additional evidence has been accepted by the revenue and no inconsistencies in the valuation report has been brought out by the revenue.
Since, the source of the amounts received has not been the issue before us, since the valuation report as per the DCF method is an acceptable method prescribed under Rule 11UA in relation to Section 56(2)(viib) and since the valuation report has been found to be in order by the revenue authorities, we hereby decline to interfere with the order of the ld. CIT (A). Decided against revenue.
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2021 (7) TMI 1441
Condonation of delay 516 days rejected - Short credit for tax deducted at source - above reasonable cause for the delay 516 days was not accepted by CIT(A), who dismissed the appeal in limine, as he was of the opinion that assessee has consciously chosen not to file appeal against the order - HELD THAT:- The inference of CIT(A) is apparently correct that assessee has consciously chosen not to file appeal before CIT(A) against the order dated 24.03.2014. The plea before Ld.CIT(A) was that on advice of a counsel, the appeal was filed as assessee was also contesting similar issues before ITAT for AY 2010-11. The assessee's plea for liberal approach was rejected by the CIT(A).
In our considered opinion, the assessee's plea of a liberal approach on the facts narrated above deserves to succeed. Accordingly, we direct that the delay be condoned and appeal admitted by Ld.CIT(A).
Assessee has pleaded that since identical issue on merits was decided by ITAT, in earlier year this appeal on merits should also be decided in favour of the assessee also. In this regard, we note that after only applying a liberal approach, we have directed that the delay be condoned and appeal admitted by CIT(A), although, nowhere it has been pleaded that delay of 615 days was owing to wrong legal advice. In the interest of justice and fare play, the CIT(A) should have an opportunity to examine the order of AO for this year, in light of the ITAT order for AY 2010-11 and the assessees submission thereon.
This is more so when even the AO did not had the ITAT order before him to examine when he framed the assessment order. Accordingly, we remit the appeal on merits to file of Ld.CIT(A) after condoning the delay of 516 days, which was not condoned by the Ld.CIT(A). The additional ground referred by the assessee may also be considered by Ld.CIT(A). Needless to add, in deciding the appeal on merits, the Ld.CIT(A) should grant adequate opportunities of being heard to the assessee. Assessee appeal is stands allowed for statistical purpose.
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2021 (7) TMI 1440
Income taxable in India - PE in India - Royalty receipts - Alleged Permanent Establishment (‘PE’) in India of the Appellant under Article 5(1) and 5(2)(T) of the India - UAE Tax Treaty (‘Tax Treaty’) - HELD THAT:- We find that identical issue raised in the present appeal has been adjudicated for Assessment Year 2013-14 [2021 (3) TMI 1440 - ITAT DELHI] we find that the assessee has met the twin criterion of existence of a fixed place of business and carrying out of business from such fixed place of business as enunciated of the judgment of Hon'ble Supreme Court in the case of Morgan Stanley & Co. [2007 (7) TMI 201 - SUPREME COURT] The claim of the assessee that they did not have a place at their disposal cannot be accepted in view of the judgment of Hon'ble Supreme Court in the case of Formula One World Championships Ltd. [2017 (4) TMI 1109 - SUPREME COURT] in the case of Azadi Bachao Andolan [2003 (10) TMI 5 - SUPREME COURT] and also E-funds IT Solutions [2017 (10) TMI 1011 - SUPREME COURT] The facts on record undisputedly prove that the premises AHL are at the disposal of the assessee for conduct of their business. While coming to the issue of "at the disposal" in the premises is available for the assessee for running of their business even for a limited time it constitutes a PE - Decided against the assessee.
Attribution of profits to alleged PE of the Appellant in India inspite of entity level operating losses - alternative taxation of India source income as ‘Royalty’ under Section 9(l)(vi) of the Income Tax Act, 1961 (‘the Act’) and Article 12 of the Tax Treaty - We find that the identical issue raised in the present appeal, has already been adjudicated for Assessment Year 2013-14. [2021 (3) TMI 1440 - ITAT DELHI] to hold that the revenue's earned by the assessee are taxable under Article 12 of the DTAA. Regarding the determination of the profit, taken up at ground No. 4 by the assessee, we hereby hold that the taxable profits may be computed in accordance with the provisions of Section 44DA of Indian Income Tax Act and Article 12 of Indo-UAE, DTAA.
During the arguments, it was also submitted that the assessee has incurred losses in the assessment year 2008-09. The assessee be given an opportunity of submitting the working of apportionment of revenue, losses etc. on financial year basis with respect to the work done in entirety by furnishing the global profits earned by the assesse, so that the profits attributable to the work done by the PE can be determined judiciously. The same may be considered while determining the taxable profits in India in accordance with the provisions of Section 90(2).
Thus the issue of attribution of profit to the Permanent Established (PE) is accordingly restored to the file of Assessing officer for deciding in the light of the direction of the Tribunal in AY 2013-14, as reproduced above. Appeal of the assessee is allowed partly for statistical purposes.
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2021 (7) TMI 1439
Bogus LTCG - sale proceeds of sale of shares u/s 68 - huge jump in the sale price of the scrip - assessee had purchased 20000 shares @ Rs. 1/- per share in October, 2011 and has sold them at Rs. 310/Rs. 311 in July, 2014 - HELD THAT:- As stated earlier, none appeared on behalf of the assessee. We heard Ld. D.R. who supported the orders passed by the tax authorities. We notice that the assessee has not filed any evidence/material to controvert the findings given by Ld. CIT(A). Under these set of facts, we have no other option but to confirm the order passed by Ld. CIT(A).
Appeal filed by the assessee is dismissed.
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2021 (7) TMI 1438
Maintainability of Section 9 application - existence of debt due and default or not - HELD THAT:- The amount of default is calculated and Section 9 application was filed and it is claimed that the Appellant is entitle to 20% of the amount received by the Respondent under the Construction Agreement.
There are substance in finding of the Adjudicating Authority that there was no material of service rendered. The Section 8 notice relied on also does not show material as to service rendered. Under the provisions of IBC, to be an Operational Creditor it is necessary to show that there is an operational debt which has to be a claim with regard to provision of goods or services. These important ingredients are missing in the present matter.
The impugned order need not be interfered with - appeal disposed off.
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2021 (7) TMI 1437
Admission of Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 - time period for filing appeal - HELD THAT:- Under Section 61(2) of the IBC, the period for filing of Appeal is 30 days and the time which can be condoned by this Tribunal beyond the period of Appeal is of 15 days. The impugned order being dated 20.09.2019, the limitation expired after period of Appeal and another 15 days and the present Appeal is clearly time barred.
The ground raised is of limitation with regard to the debt concerned. What appears is that the Corporate Debtor was declared NPA on 15.09.2017. The record does not disclose the date of filing of Application under Section 7 of the IBC. However, the impugned order itself is of 20.09.2019 and there is no substance in the claim that the debt was time barred - Appeal not admitted and is dismissed.
Liquidation order of Corporate Debtor - HELD THAT:- Considering Impugned Order, the record and the time bound procedure under the IBC, we do not think that granting stay to the liquidation proceeding would be appropriate. If the Appellant succeeds, it would be for this Tribunal to mold relief.
List the Appeal for ‘Admission (After Notice) Hearing’ on 16th September, 2021.
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2021 (7) TMI 1436
Requirement of pre-deposit - Availability of statutory remedy - petitioner would submit that the petitioner was in no way concerned with the affairs of the company after his resignation on 06.05.2006 much less with the agreement dated 21.06.2006. Further, even the earlier agreement was between the two companies to which the petitioner was not a signatory.
As argued Petitioner has had no causal connection with the affairs of the company at the relevant time, which is allegedly involved in the commission of FEMA violations. If that is so, the petitioner cannot be compelled to pay pre-deposit amount even if he is driven to file the statutory appeal.
HELD THAT:- Considering the arguments on both sides, in our opinion, for the stand taken by the petitioner, we direct the Appellate Authority to exempt the requirement of pre-deposit as regards this petitioner (M. Umesh), in case he resorts to remedy of appeal in light of the liberty given in terms of this order. In other words, the Appellate Authority shall not insist for pre-deposit requirement qua the petitioner herein, i.e. M. Umesh.
Besides, the appellate authority shall not non-suit the petitioner for having filed the appeal beyond limitation as the petitioner was pursuing remedy before the High Court in the first place and thereafter before this court, after issuance of show cause notice.
The petitioner through counsel assures to file the appeal within three weeks from today. If the appeal is filed beyond three weeks, the limited relief regarding limitation, in terms of this order, shall not apply and the entire limitation period be reckoned by the Appellate Authority.
The Special Leave Petition is disposed of accordingly.
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2021 (7) TMI 1435
Decree for Suit for money based on cheques - amount of Rupees 6 lakhs borrowed from the plaintiff during 2006-07 - issuance of a letter of acknowledgement to plaintiff as contended by plaintiff - realisation of amount claimed in the plaint from the defendant - whether entering the dates in the cheques, duly filled up in all other respects and also signed would amount to material alteration as contended by the learned counsel for the defendant? - HELD THAT:- In the case on hand the handing over of the cheques by the defendant as admitted by him, under the provision, confer the person receiving it, a prima facie authority to make or complete those. Therefore, since the defendant has handed over the six signed cheques even with entries other than the figure showing the money filled up, as holder of it the plaintiff is given prima facie authority by Section 20 of the N.I. Act to complete it. Therefore, the argument that by entering the dates in the cheques, the plaintiff has materially altered the cheques will not sustain and is discarded.
The plaintiff has established before the trial court that the cheques on presentation for encashment were bounced and the factum of dishonour was duly informed to the defendant by serving lawyer notices. Strictly no materials are forthcoming to establish any repayment towards the interest or the principal sum borrowed. The plaintiff has tendered oral evidence to establish his claim for realisation of money. He has also produced relevant documentary evidence to justify his claim.
In the case on hand the specific stand of the defendant was that dates have not been written in the cheques and the plaintiff has put it prior to presentation of those. The plaintiff has a contra claim. Even if the defendant's version is accepted as true, the filling up of the dates in an otherwise filled and signed cheque, not being material alteration, will not invalidate it. The plaintiff being the holder of the cheques undoubtedly has lawful authority to fill the blank entry under Section 20 N.I. Act - A scrutiny of the evidence on record convinces this Court that the trial court had a true and proper appreciation of evidence and cannot be found fault with in decreeing the suit. Interference is totally unwarranted.
Appeal dismissed.
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2021 (7) TMI 1434
Carry forward of the deficit/loss for trust - assessment of trust - as per AO CIT(A) has erred in law in allowing the assessee’s claim of carry forward of current year’s loss and set-off of excess deficit pertaining to earlier years without appreciating the fact that the scheme of taxation of charitable or religious trust/institution as codified u/s 11,12 and 13 there is no provision for computing loss from property held under trust/institution on account of excess application of income/funds of the trust - HELD THAT:- In the case of DIT v. Raghuvanshi Charitable Trust [2010 (7) TMI 158 - DELHI HIGH COURT] held that a trust can be allowed to carry forward deficit of current year and to set of same against income of subsequent years. It was further held that adjustment of deficit of current year against income of subsequent year would amount of application of income of trust for charitable purposes in subsequent year within meaning of section ll(l)(a). It has been held that excess of expenditure over income of charitable or religious nature incurred in earlier years can be adjusted against the income of the current year.
This issue was debated in CIT v. Maharana of Mewar Charitable Foundation [1986 (7) TMI 56 - RAJASTHAN HIGH COURT] and it was opined that application could be considered to have taken place in the year of adjustment, where the earlier year's income was not adequate to absorb the actual expenditure made. It would be incorrect to view the term 'application' from a narrow perspective so as relate it with the actual movement of funds.
In CIT v. Shri Plot Swetamber Murti Pujak Jain Mandal [1993 (11) TMI 17 - GUJARAT HIGH COURT] held that there is nothing in section 11(l)(a) which indicates that the expenditure incurred in the earlier year cannot be met out of the income of subsequent years.
The Hon'ble Bombay High Court in CIT v. Institute of Banking Personnel Selection [2003 (7) TMI 52 - BOMBAY HIGH COURT] held that income derived from a trust property should be computed on sound commercial principles and this included carrying forward and set-off of deficit in the earlier years.
In our opinion, there is no infirmity in the order of the Ld. CIT(A) on the issue in dispute in following binding judgments of Hon’ble High Court and judgment of the Tribunal in the case of the assessee itself for assessment year 2008-09 - Accordingly, we uphold the order of the Learned CIT(A) on the issue in dispute and the grounds raised by the Revenue are dismissed.
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2021 (7) TMI 1433
GDR issue to sole subscriber - misleading information was given to the shareholders and the investors that the GDRs were subscribed by many entities - loan obtained by Vintage through a pledge agreement given by the Company was a fraudulent act which was not disclosed to the stock exchange - HELD THAT:- We find that the controversy involved in the present appeal is squarely covered by a recent decision of this Tribunal in Prafull Anubhai Shah [2021 (6) TMI 1159 - SECURITIES APPELLATE TRIBUNAL, MUMBAI] held that merely because the appellant was present when the resolution dated July 27, 2006 was passed, no conclusion can be drawn that this was the starting point of the fraudulent arrangement for issuance of GDR and for opening a bank account. The resolution does not given any indication that the appellant had knowledge beforehand that the GDR issue was the purpose to manipulate the price or the market or that a fraud would be played upon the shareholders and the investors.
We are further of the opinion that finding of the WTM that the resolution of the Board of Directors provides execution of a pledge or execution of a charge agreement is wholly erroneous, perverse and based on no evidence. The resolution also does not stipulate that the proceeds could be utilized by the bank as security in connection with a loan taken by another entity.
In the light of the aforesaid, we are of the view that the appellant cannot be debarred only on the basis of being present in the resolution of the Board of Directors.
The impugned order of the AO as well as the WTM in so far as it relates to the appellants cannot be sustained and is quashed. The appeals are allowed.
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2021 (7) TMI 1432
Seeking withdrawal of Advance Ruling application - HELD THAT:- In exercise of the power vested, vide regulations 20 of the Custom Authority for Advance Ruling Regulations, 2021, leave granted for withdrawal of the said applications.
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2021 (7) TMI 1431
Extension of Time to furnish reply - HELD THAT:- The letter dated 27th July, 2021 issued by the advocates of the respondent no.1 to the advocates of the petitioner offering inspection of certain documents at Delhi, accepted.
Time to furnish reply to the notice under Section 13(2) of the Securitization and Re-construction of Financial Assets and Enforcement Security Interest Act, 2002 is extended till 31st August, 2021.
Petition disposed off.
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