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Showing 1 to 20 of 1540 Records
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2021 (9) TMI 1542
TDS u/s 195 - Royalty - amounts paid by the concerned persons resident in India to non-resident, foreign software suppliers - Whether constitutes as taxable income deemed to accrue in India u/s 9(1)(vi) - income deemed to accrue or arise in India - HELD THAT:- As assessee submits that the substantial questions of law raised herein are squarely covered in the case of Engineering Analysis Centre of Excellence Private Limited [2021 (3) TMI 138 - SUPREME COURT]
Revenue could not dispute the same.In view of the aforesaid submissions, the substantial questions of law are answered in favour of the assessee and against the revenue.
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2021 (9) TMI 1541
Disallowance of depreciation on goodwill - As per the scheme of amalgamation, where value of liabilities and amount of equity capital allotted /payment to the equity shareholders exceeds the value of assets of the transferor company taken over, such excess shall debited to the goodwill account - HELD THAT:- We find that this claim is no more res-integra as the issue has been settled in favour of the assessee and against the revenue by the decision of in the case of Smifs Securities Ltd. [2012 (8) TMI 713 - SUPREME COURT] We do not find any error or infirmity in the findings of the CIT(A). Decided against revenue.
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2021 (9) TMI 1540
Suit for cancellation of Power of Attorney - Mutation of property - whether there is any criminal offence disclosed in the FIR so far as the Appellant is concerned? - HELD THAT:- The scope of interference by the High Court under Section 482 of the Cr.P.C. is wide as recorded by the High Court by the judgment and order impugned. The High Court itself has said that though inherent power under Section 482 of the Cr.P.C. is very wide, it has to be exercised in exceptional cases.
There can be no doubt that the jurisdiction under Section 482 is not exercised for the asking, it is exercised with care in exceptional cases. The scope of interference with an FIR is much more restricted and ordinarily the Court does not interfere under Article 226 of the Constitution of India, when there is an alternative remedy available to the applicant. Furthermore, from the tenor of the order of the High Court rejecting the writ petition, it is patently clear that one of the reasons why the High Court did not intervene at that stage was that the Police report had also not been submitted. The Police report has since been submitted and the charge sheet has been filed. It is true that about 12-13 witnesses have been named. However, the said Bela Rani who executed the Power of Attorney has not even been cited as a witness. Apparently, the said Bela Rani was not even examined by the Investigating Authorities.
The charge sheet is totally vague. There is not even a whisper in the charge-sheet of what transpired from the investigation against the Appellant herein - A fraudulent, fabricated or forged deed could mean a deed which was not actually executed, but a deed which had fraudulently been manufactured by forging the signature of the ostensible executants. It is one thing to say that Bela Rani fraudulently executed a Power of Attorney authorising the sale of property knowing that she had no title to convey the property. It is another thing to say that the Power of Attorney itself was a forged, fraudulent, fabricated or manufactured one, meaning thereby that it had never been executed by Bela Rani. Her signature had been forged.
In Uma Shankar Gopalika [2004 (3) TMI 807 - SUPREME COURT], this Court found that the complaint, in that case, did not disclose any criminal offence at all, much less any offence under Section 420 or Section 120B IPC. The case was purely a civil dispute between the parties for which remedy lay before the civil Court.
In this case, it appears that criminal proceedings are being taken recourse to as a weapon of harassment against a purchaser. It is reiterated at the cost of repetition that the FIR does not disclose any offence so far as the Appellant is concerned. There is no whisper of how and in what manner, this Appellant is involved in any criminal offence and the charge sheet, the relevant part whereof has been extracted above, is absolutely vague. There can be no doubt that jurisdiction under Section 482 of the Cr.P.C. should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice - The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in PARAMJEET BATRA VERSUS STATE OF UTTARAKHAND AND ORS. [2012 (12) TMI 1219 - SUPREME COURT].
The given set of facts may make out a civil wrong as also a criminal offence. Only because a civil remedy is available may not be a ground to quash criminal proceedings. But as observed above, in this case, no criminal offence has been made out in the FIR read with the Charge-Sheet so far as this Appellant is concerned. The other accused Rajan Kumar has died.
The impugned judgment and order of the High Court is set aside and the proceedings in Crime Case No.5973/2020 are quashed as against the Appellant - Appeal allowed.
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2021 (9) TMI 1539
Seeking bail application u/s 439 CrPC - Offences punishable under Sections 132(1)(b), (c) (f), (j), (k) and (1) r/w Section 132(5) of the Central Goods and Service Tax Act, 2017 - HELD THAT:- The fact that conclusion of the proceedings is likely to take some time and without expressing any opinion on the merits of the case, this Court deems it just and proper to grant bail to the accused petitioner u/s 439 CrPC. Accordingly, this bail application filed u/s 439 CrPC is allowed
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2021 (9) TMI 1538
Rectification of mistake - TP adjustment on account of payment of I.T. Licence Maintenance cost - HELD THAT:- We find that the CIT(A) in the impugned order has given a finding that no tax has been deducted by the assessee on payment for I.T. Licence Maintenance Cost. Whereas, the contention of assessee is that the assessee has deducted tax at the rate of 21.115% under section 206AA of the Act. The Tribunal after considering entire facts has restored the issue back to the file of TPO/AO to reexamine the issue. Since, the issue required examination of documents, the Tribunal has rightly restored the issue back to TPO/AO. Assessee has failed to point out any mistake much less any apparent mistake requiring indulgence u/s 254(2) of the Act. Therefore, the first prayer made by assessee is rejected.
Adjustment on account of payment of interest on trade creditors - Tribunal has wrongly mentioned in the order that the assessee filed additional evidence i.e. Circular issued by Peri GMBH (Parent company of the assessee/applicant) - As assessee made a statement at the Bar that though the said circular was filed but no reliance was being placed on that circular and prayer to admit aforesaid circular as additional evidence was not made. The assessee does not want to place reliance on the said circular as the issue can be decided without making reference to the above circular. In the light of statement made by assessee, we are of considered view that the error has crept in the order of Tribunal in taking cognizance of the circular as additional evidence. Since, no reliance was placed by assessee, the Tribunal has erred in taking cognizance of the circular. Therefore, the second prayer of the assessee seeking rectification of the finding in para-11 of the order of Tribunal [2021 (3) TMI 403 - ITAT MUMBAI] is accepted.
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2021 (9) TMI 1537
Disallowance of speed money expenditure - perusal of the loose sheets found in search - ITAT while considering the case of the Revenue challenging the allowance of 90% of speed money observed that “mere perusal of the loose sheets it is clear that about 10% of the cash payments was made to the officials of the port trust” and disallowance to the extent of 10% is just and proper.
HELD THAT:- This order amounts to allowing the appeals filed by the assessee which are still pending where the challenge is made to the extent of disallowance of 10%. On further miscellaneous petitions filed by the assessee strangely the Tribunal has held that no finding has been rendered as to the nature of payments found in loose sheets which is ex-facie contrary to the finding recorded in the order dated 02.05.2017. This would indicate that the Tribunal has not applied its mind while arriving at the conclusion.
Tribunal being the last fact finding authority ought to have discussed the factual aspects, more importantly when the Assessing Officer has made efforts to discover the tax evasion, placing reliance on the incriminating materials seized and the statements of the relevant persons recorded. Instead of adjudicating on the challenge made by the Revenue, passing the orders to the effect of deciding the subject matter of the appeals filed by the assessee which were not before the Tribunal, amounts to perversity and suffers from patent illegality. The impugned orders lack application of mind and reasoning.
Given the circumstances, we have no other option except to set aside the impugned orders and remand the matter to the Tribunal for reconsideration, keeping open all the rights and contentions of the parties sans answering the substantial questions of law.
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2021 (9) TMI 1536
Characterization of receipts - Chargeability of interest on deposits/loans - assessee has been following this system from the earlier years and the interest income has been offered as a business income - only difference of opinion with the CIT(A) that, these surplus funds are not necessary to the assessee and there is no requirement for the assessee to make deposits - HELD THAT:- As in the present case, the assessee company has earned interest on bank deposits and on short term call money loan. AR demonstrated working of interest income on bank deposits and interest on term loan - interest income earned on the term loan provided @6% p.a. in the August 2005 was continuing and interest income was offered in earlier financial years.
Borrower of loan has provided guarantee to lenders of the assessee company which benefited substantially to the assessee business projects and operations. Since the term loan provided by the assessee to the barrower is linked in obtaining counter guarantee to assessee business prospects and there exist the nexus of business transactions. We considering all are of the opinion that interest income earned by the assessee take the character of business transaction and to be treated as business income. Accordingly, we direct the Assessing Officer to treat the interest income taxable as business income and allow the grounds of appeal of the assessee.
Claim of depreciation u/s 32(1)(ii) - right to set up an infrastructure facility and collect annuity thereon - assessee had constructed the Road and have the right to earn revenue in the form of annuity from the use of such intangible Asset being license or business or commercial right contemplated under the provisions of the Act - HELD THAT:- We considering the factual aspects, circumstances, legal decisions West Gujarat Expressway Ltd [2016 (4) TMI 1184 - BOMBAY HIGH COURT] ,Infrastructure Leasing & Financial Services ltd [2019 (12) TMI 1499 - ITAT MUMBAI] are of the opinion that the assessee is eligible for depreciation on Road on (B.O.T) basis treating it as Intangible Asset under section 32(1)(ii) of the Act. Accordingly, we direct the assessing officer to grant depreciation as discussed and allow the additional ground of appeal in favour of the assessee.
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2021 (9) TMI 1535
Penalty u/s 271D - allegation of non recording of satisfaction by AO before initiation of any penalty - HELD THAT:- As perused the assessment order passed by the AO the assessment order is conspicuously silent on recording of any satisfaction by the assessing officer for the purpose of initiative the penalty u/s 271D.
In our considered opinion the recording of satisfaction by the AO is essential for initiation of any penalty u/s 271D of the act and failure to record, the satisfaction in the manner provided by the law and more particularly in the light of the judgement, is fatal, and accordingly the penalty proceedings initiated against the assessee by the assessing officer and confirmed by the CIT(A) are required to be quashed - Appeal of assessee allowed.
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2021 (9) TMI 1534
Whether the amended provision can be given prospective effect only? - HELD THAT:- The State is under statutory obligation to conclude the assessment process for the period prior to 01.07.2017 on the basis of unamended rules; and commence the assessment for the subsequent period as per the new regime which has come into force from 01.07.2017.
The department is free to proceed with the assessment on the basis of unamended rules which, however, will be subject to challenge as may be available in law to the assessees before the appropriate Forum. The special leave petitions are disposed of accordingly.
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2021 (9) TMI 1533
Depreciation on intangibles - trademarks owned wholly or partly by the assessee - assessee succeeded to the business of the partnership firm, which had trademarks registered in its name - As decided by HC [2020 (10) TMI 424 - KARNATAKA HIGH COURT] assessee u/s 32(1) was entitled for depreciation with reference to actual cost incurred by it with reference to intangible assets - 5th proviso in any case will apply only in the year of succession and not in subsequent years and also in respect of overall quantum of depreciation in the year of succession and Tribunal committed an error of law in upholding the order of Commissioner of Income Tax (Appeals) in invoking Explanation 3 to Section 43(1) -
HELD THAT:- Issue notice, returnable on 08.11.2021.
Dasti service, in addition, is permitted.In the meantime, the impugned judgment and orders passed by the High Court are stayed.
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2021 (9) TMI 1532
Blocking the enforcement of a security interest, created in favour of a secured creditor - purpose for which the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the SARFAESI Act) was enacted, is defeated - HELD THAT:- This Court observed that the equity of redemption is not extinguished by mere contract for sale and that the mortgagor's right to redeem will survive until there has been completion of sale by the mortgagee by a registered deed. This Court further observed that applying the principles stated with reference to Section 60 of the Transfer of Property Act in respect of a secured interest in a secured asset in favour of the secured creditor under the provisions of the SARFAESI Act and the relevant Rules applicable, a free hand is given to a secured creditor to resort to a sale without the intervention of the court or tribunal. It has, however, been held that Under Section 13(8), it is clearly stipulated that the mortgagor, i.e., the borrower, who is otherwise called as a debtor, retains his full right to redeem the property by tendering all the dues to the secured creditor at any time before the date fixed for sale or transfer. This Court further held that if the tender is made by the borrower at the last moment before the sale or transfer, the secured asset should not be sold or transferred by the secured creditor.
This Court held that there was no reason as to why the general principle laid down by this Court in the case of Narandas Karsondas [1976 (12) TMI 186 - SUPREME COURT] with reference to Section 60 of the Transfer of Property Act could not have application in respect of a secured interest in a secured asset created in favour of a secured creditor. It has been held that the said principles will apply on all fours in respect of a transaction as between the debtor and secured creditor under the provisions of the SARFAESI Act.
This Court, in unequivocal terms, held that unless and until a clear 30 days' notice is given to the borrower, no sale or transfer can be resorted to by a secured creditor. It further held that in the event of any such sale properly notified after giving a 30 days' clear notice to the borrower did not take place as scheduled for reasons, which cannot be solely attributable to the borrower, the secured creditor cannot effect the sale or transfer of the secured asset on any subsequent date by relying upon the notification issued earlier - This Court held that once the sale does not take place pursuant to a notice issued Under Rules 8 and 9, read with Section 13(8) for which the entire blame cannot be thrown on the borrower, it is imperative that for effecting the sale, the procedure prescribed will have to be followed afresh.
The SARFAESI Act was enacted with the purpose for securitization and empowering banks and financial institutions to take possession of the securities and to sell them without the intervention of the Court - looking in the present case, it would show that, every attempt has been made to frustrate the purpose of the SARFAESI Act. The Respondent-Bank was required to indulge in three rounds of litigations, out of which, the two have reached upto this Court.
Though the auction purchaser emerged as the successful bidder, in the bids held on 20.7.2012, and though the sale was confirmed on 21.7.2012, and though the sale has been registered in his favour on 14.9.2012, for a period of last 9 years, he could not enjoy the fruits of the said sale. Not only that, but the Appellants continued to enjoy the rent of the properties, the ownership of which vests in the auction purchaser - there are no merit insofar as the challenge to the notice dated 9.7.2012 is concerned.
It is also submitted that the amount received by the Respondent-Bank was on account of sale of all the four properties mentioned in the First Sale Notice dated 21.1.2012, and as such, the direction to pay an amount of Rs. 4.48 crore with interest only to Respondent No. 3 is not sustainable - there are no merit in this submission. The property at Item 'B' of the Schedule of Properties in First Sale Notice dated 21.1.2012 was sold through a private treaty during the pendency of the first round of litigation. The properties at Item 'A' and Item 'D' of the Schedule of Properties in First Sale Notice dated 21.1.2012 came to be sold in pursuance of the sale taken place on 20.7.2012, which was in pursuance of the Second Sale Notice dated 9.7.2012. As such, the only property left was the property at Item 'C' belonging to the Respondent No. 3 in respect of which a third notice dated 27.9.2012 came to be issued. It is only in pursuance of the said notice dated 27.9.2012, that the property at Item 'C' was sold by a private treaty to M/s. Redbrick Realtors Private Limited. As such, the excess amount, which remained with the Respondent-Bank, has rightly been directed to be paid to Respondent No. 3 by the DRT, Chennai, which has been concurrently upheld by the DRAT, Chennai, as well as the High Court.
The appeals are therefore found to be without merit, and as such, are dismissed with costs.
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2021 (9) TMI 1531
Income taxable in India - gains arising from transfer of CCDs - treating the gains on sale of CCDs to be taxable - interest income or capital gain - HELD THAT:- An undisputed fact that identical issue arose in assessee’s own case for A.Y. 2011-12 & 2012-13. For A.Y. 2011-12, the Hon’ble Delhi High Court [2014 (8) TMI 9 - DELHI HIGH COURT] has held that the gain on CCDs to be treated as capital gains.
We further find that the Co-ordinate Bench of Tribunal in assessee’s own case for A.Y. 2013-14 [2021 (9) TMI 1530 - ITAT DELHI] by following the decision of Hon’ble Delhi High Court, dismissed the appeal of the Revenue. Before us, no distinguishing feature in the facts in the year under consideration and that of earlier years has been pointed out by the Revenue. Further no material has been placed by Revenue to demonstrate that the decision rendered by Hon’ble Delhi High Court in assessee’s own case for A.Y. 2011-12 has been stayed/ set aside/ overruled by higher judicial forum. Considering the totality of the aforesaid facts, we find no reason to interfere with the order of CIT(A) [2021 (9) TMI 1530 - ITAT DELHI]and thus the grounds of Revenue are dismissed.
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2021 (9) TMI 1530
Income taxable in India - gains arising from transfer of CCDs - taxability as capital gains OR interest income - CIT(A) held that the gains arising to the assessee on the transfer of Compulsorily Convertible Debentures (CCDs) is in the nature of capital gains and shall not be taxable in India under Article 11 of the DTAA between India and Mauritius - HELD THAT:- The issue has been dealt by the Hon’ble Authority of Advance Ruling (AAR) [2012 (4) TMI 154 - AUTHORITY FOR ADVANCE RULINGS] while dealing with Article 11 and Article 13 as held that the entire gains arising to the applicant on the sale of equity shares and CCDs are not exempt from capital gain tax in India under DTAC with Mauritius. The gains arising on the sale of CCDs being interest within the meaning of Section 2(28A) of the Act and Article 11 of the DTAC and are taxable as such.
Against the above ruling of AAR the assessee filed writ petition before Hon’ble Delhi High Court [2014 (8) TMI 9 - DELHI HIGH COURT] has decided the issue against the findings of the AAR and has held that pre-mature exit options as recorded in the SHA and the minimum return assumed by Vatika on its investment are clearly commercial agreements between the parties. These by itself do not change the legal nature of the transaction entered into between the parties. The terms of the arrangements between Vatika and the petitioner reveal that the JV was a genuine commercial venture, in which both partners had management rights. The call and put options were defined commercial options capable of being elected by the parties. In our opinion, there is, thus, no reason to ignore the legal nature of the instrument of a Compulsorily Convertible Debenture or to lift the corporate veil to treat the JV Company and Vatika as Single entity. In view of the above, the writ petition is allowed and the impugned ruling is set aside.
As held that the revenue has not accepted the above order of Hon’ble Delhi High Court and has filed SLP before Hon’ble Supreme Court which is pending for adjudication and made addition on the amount in contravention to the existing ruling of the Hon’ble Jurisdictional High Court.
Thus grounds raised by the revenue that the appeal has been filed before the Tribunal solely based on the foundation that the SLP filed by the revenue has been admitted and notice has been issued in this case. Since, at this juncture the order of the Hon’ble High Court prevails on the substantive question of law which stands adjudicated in favour of the assessee, we hereby dismiss the appeal of the revenue.
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2021 (9) TMI 1529
Resolution Plan being approved by the Committee of Creditors is pending for approval of the Adjudicating Authority - HELD THAT:- It goes without saying that the submissions sought to be made by the appellant could be the matter for consideration of the Adjudicating Authority, of course, strictly in accordance with law. In that regard, suffice it to say that any observations made in the impugned order shall not be of prejudice to the appellant in making the relevant submissions; and consideration thereof by the Adjudicating Authority.
The appeal stands dismissed.
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2021 (9) TMI 1528
Income taxable in India - royalty receipts - amounts paid by the concerned persons resident in India to non-resident for foreign software suppliers - HELD THAT:- Assessee submits that the substantial questions of law raised herein are squarely covered by the ruling of the Hon’ble Apex Court in the case of Engineering Analysis Centre of Excellence Private Limited [2021 (3) TMI 138 - SUPREME COURT] held that amounts paid by resident Indian end-users/distributors to non-resident computer software manufacturers/suppliers, as consideration for the resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty for the use of copyright in the computer software, and that the same does not give rise to any income taxable in India, as a result of which the persons referred to in section 195 of the Income Tax Act were not liable to deduct any TDS under section 195 of the Income Tax Act.
Revenue could not dispute the same. Substantial questions of law are answered in favour of the assessee and against the revenue.
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2021 (9) TMI 1527
Validity of notice issued u/s 153C - writ direction or order to quash and set aside the impugned notices u/s 153C and the order disposing off the objections along with the show Cause Notices issued for A.Y. 2016- 17, A.Y. 2017-18 and A.Y. 2018-19 - HELD THAT:- For the reasons to be followed which for the paucity of time, order not being dictated today.
The petition is not entertained.
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2021 (9) TMI 1526
Penalty levied u/s. 271(1)(c) - Furnishing of inaccurate particulars of income in respect of process loss - Assessee has submitted that wastage was borne by the assessee in case of export sale and in case of local sale it was borne by the parties - in the assessment made u/s. 143(3), AO has made disallowance of processed loss - CIT(A) after reducing the sale made from wastage product i.e. chindri, fandrages restricted the disallowance - HELD THAT:- We have gone through the judicial pronouncement referred by the ld. counsel in the case of CIT, Ahd Vs. Reliance Petro Products P. Ltd. [2010 (3) TMI 19 - SUPREME COURT] wherein it is held that mere making of the claim which is not sustainable in law by itself will not amount to furnishing of inaccurate particulars regarding the income of the assessee.
Such claim in the return of income cannot amount to inaccurate particulars of income. In the light of the above facts and findings, we consider that only on the basis of not accepting the claim made by the assessee, the levy of penalty u/s. 271(1)(c) is not appropriate. Accordingly, the Assessing Officer is directed to delete the penalty. Therefore, this ground of appeal of the assessee is allowed.
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2021 (9) TMI 1525
Validity of N/N. 26/2017- Custom, dated 29.06.2017 to the extent amending N/N. 16/2015- Customs, dated 01.04.2015 - Validity of Trade Notice 11/2018, dated 30.06.2017 to the extent it is stated therein under Chapter 5 that importers would need to pay IGST - sanction of refund and interest thereon at the appropriate rate after first directing reversal of the entries of utilization of the subject credit and debiting the said amount from credit ledger consequently available with the petitioner or in such other manner as deemed appropriate - HELD THAT:- Issue Notice for final disposal making it returnable on 21.10.2021.
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2021 (9) TMI 1524
Offence under SEBI Act - synchronized trading, reversal trading and self-trading - appellants made unlawful gains - trading noticees received funds from the financing notices which were directly transferred to the stock brokers against the pay in obligation of the trading noticees - WTM directed the appellants to pay the said amount jointly and severally alongwith interest at the rate of 12% per annum.
HELD THAT:- Any person who has made profits or averted loss by indulging in any transaction or activity in contravention of the provisions of this Act or Regulations made thereunder would be liable to disgorge an amount equivalent to the unlawful gain or loss averted by such contravention.
Thus, disgorgement can only happen if the person contravenes the provisions of the Act or Regulations. Secondly, the disgorgement is equivalent to the wrongful gain made or loss averted. Thus, disgorgement cannot exceed the amount of wrongful gains.The concept of disgorgement under the SEBI laws is based on the principle that a person in possession of wrongful gains by which he is enriched may be asked to part with the amount equivalent to such gains alongwith interest.
Black’s Law Dictionary defines disgorgement as “The act of giving up something (such as profits illegally obtained) on demand or by legal compulsion.” To disgorge means to deprive a person of the value by which he is unjustly enriched. Further, disgorgement is an equitable remedy designed to deprive a wrong doer of his unjust enrichment. It aims in ensuring that a person in possession of the wrongful gain does not continue to enjoy them. Section 11B of the Act only talks about disgorgement of unlawful gains/profits. The concept of “net profits” is not existing in Section 11B but the same has been carved out by Courts exercising equitable jurisdiction. Some Courts have granted only deduction of statutory dues, others have granted other legitimate expenses.
Disgorgement in our opinion is an equitable remedy under Section 11B of the Act meant to prevent the wrongdoers from enriching himself by his wrong by wresting ill-gotten gains from the hands of the wrongdoer. The provisions relating to disgorgement is thus remedial in nature and is not punitive.
Thus, legitimate expenses can be deducted while arriving at net profit. The respondent in this case has only allowed statutory deductions expended as a deduction while arriving at the net profit but did not allow deduction of administrative expenses and brokerage incurred by the wrongdoer.
We are in agreement with the findings given by the WTM in this regard. In our opinion net profit from wrongdoing is the gain made by any business or investment, where both the receipts and payments are taken into account. We are further of the opinion that the appellant will not be allowed to diminish the show of profits by putting in unconscionable expenses or other inequitable deductions even though entire profits of a business may result from the wrongdoings of the appellants and therefore are not entitled for the deductions as prayed by them.
Section 37(1) of the Income Tax Act debars an assess claiming any deduction from business profits any expenditure which may be incurred for any purpose which is an offence or which is prohibited by law. The aforesaid principle equally applies to SEBI laws since disgorgement is not a penalty nor is punitive as held by this Tribunal in Gagan Rastogi vs. SEBI [2019 (10) TMI 1047 - SECURITIES APPELLATE TRIBUNAL, MUMBAI]
Administrative expenses and brokerage charges are in the nature of business expenses and are not legitimate expenses for the purpose of claiming deductions in order to arrive at the net profit. Disgorgement being an equitable remedy and even though the profits results from wrongdoings, the appellants were rightly denied administrative expenses and brokerage. For the reasons stated aforesaid all the appeals are devoid of merit and are dismissed.
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2021 (9) TMI 1523
Cancellation of compensatory leave for adjudication to the Industrial Tribunal - whether the Appellant can be allowed to raise a contention that it is not an Industry within the meaning of I.D. Act? - HELD THAT:- After considering the fact of loss of confidence in the employee and a long time gap, this Court granted compensation of Rs. 15 lakhs in full and final settlement to the employee without granting reinstatement. In the said case before this Court, there was no inquiry held for establishing misconduct. A finding was recorded that the acts of employee prima facie constitute misconduct. In our view, considering the aims and object of the Appellant and the serious nature of misconduct proved against the Respondent, instead of granting reinstatement, by balancing the conflicting interests, appropriate compensation needs to be awarded. Moreover, considering the nature of the misconduct proved against the Respondent, the grant of reinstatement will not be in the interest of justice. The long gap of 17 years will be also one of the considerations for not granting reinstatement especially considering the nature of the activities of the Appellant and the conduct of the Respondent.
In the case of Talwara Cooperative Credit and Service Society Ltd. [2008 (10) TMI 731 - SUPREME COURT], this Court has held that the fact whether an employee after dismissal was gainfully employed is within his special knowledge and therefore, considering the principles laid down in Section 106 of the Indian Evidence Act, 1872, the burden is on the employee to come out with a case that he was not gainfully employed during the relevant period.
In the present case, at no stage, even such a plea has been made by the Respondent. Even in the counter filed to these appeals, no such statement has been made. The amount of back wages payable up to June, 2010 was deposited in this Court. The said amount of Rs. 4,43,380/- has been withdrawn by the Respondent in the year 2010. From the year 2004, when order of compulsory retirement was passed, the Respondent has not worked with the Appellant. Moreover, he has not even pleaded that from the date of the compulsory retirement till date, he was not gainfully employed.
The Respondent has used the amount of Rs. 4,43,380/- for the last 11 years. His gross salary in the year 2004 was Rs. 5788/- per month. Taking overall view of the various factual aspects which we have discussed above, we find that compensation in the range of Rs. 6,50,000/- to Rs. 7,00,000/- in lieu of reinstatement will be just and proper in the facts of the case. Thus, after taking into consideration the sum of Rs. 4,43,380/- already received by the Respondent, a sum of Rs. 2,50,000/- will be payable by the Appellant to the Respondent.
The appeals allowed in part by setting aside the order of reinstatement of the Respondent and the order of payment of back wages to the Respondent - the Appellant further directed to pay total compensation of Rs. 6,50,000/- to the Respondent inclusive of the sum of Rs. 4,43,380/- already paid to the Respondent.
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