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2022 (1) TMI 1373 - SUPREME COURT
Requirement to follow the reservation norms of 2% for the candidates belonging to Scheduled Caste [SC], 31% for the Scheduled Tribes [ST] and 17% for the Other Backward Classes [OBC] for purposes of admission in the University on introduction of the Central Educational Institutions (Reservation in Admission) Amendment Act, 2012.
HELD THAT:- It is no longer res integra that Reports and recommendations made by the Parliamentary Committees/Commissions that precede enactment of a Statute can be used as external aids to interpret the meaning of ambiguous words in a statutory provision wherever considered necessary. It can also be taken note of as to the existence of a historical fact. At the same time, it must be borne in mind that such Reports are not decisive and a Court is free to arrive at a different conclusion based on its own findings and other evidence produced by the parties - It can be discerned from the Statement of Objects and Reasons appended to the Amendment Bill, the background notes submitted to the Standing Committee by the Department of Higher Education and the 234th Report tabled by the Standing Committee in the Parliament that some of the CEIs, in particular those situated in North Eastern States having a predominant tribal population, expressed their inability to reduce the extent of reservation of seats for SCs and STs for ensuring reservation of 27% of the seats for the OBC category, as stipulated in the Reservation Act. It can also be seen that the provisions of the Reservation Act as they stood, exempted CEIs situated in tribal areas referred to in the Sixth Schedule to the Constitution, from making any reservation for SCs and STs, which as a matter of fact, was not the object behind introducing the enactment.
It has been held in the impugned judgment that the Respondent No. 1 - University was correct in calculating the extent of reservation of seats in making admissions to different courses, viz., 31% for ST candidates, 2% for SC candidates and 17% for OBC candidates which is in line with the mandate of the Amendment Act.
Once the two provisos were inserted in Section 3 of the Parent Act by virtue of the Amendment Act, the general norms of reservation as laid down in Clauses (i), (ii) and (iii) of Section 3 of the Parent Act had to be restricted in terms of the said provisos. While the first proviso deals with "State seats", if any, in a CEI situated in tribal areas referred to in the Sixth Schedule to the Constitution, the second proviso addresses a situation where there are no State seats in a CEI and the seats reserved for the SC/ST candidates exceeds the percentage specified under Clauses (i) and (ii) of Section 3 (viz., 15% seats for SCs plus 7.5% for STs, totalling to 22.5% seats) or if the combined seats reserved for the SC and ST candidates exceeds the sum total of the percentage as specified under Clauses (i) and (ii). Two riders have also been dovetailed in the second proviso to Section 3, namely Clauses (a) and (b).
The reference point of the period for determining the reservation quota for OBC candidates must be the same as that of the SC and ST candidates for the simple reason that for working out the reservation quota for OBC candidates would necessarily require one to find out in the first instance, as to what would be the difference between 50% of the annual permitted strength and the combined existing percentage for the SC and ST candidates, as obtained on the date immediately preceding the date of commencement of the Reservation Act. Both the issues are so interlaced that to determine the percentage of reservation for OBC candidates, one would have to undertake an exercise of determining the percentage of seats to be reserved for SC and ST candidates, all within the four corners of the second proviso inserted in Section 3 of the Parent Act - the general Rules of reservation have been encapsulated in Clauses (i), (ii) and (iii) of Section 3 of the Parent Act. But when it comes to CEIs established in States falling under the definition of "Specified north eastern region", categorized in Section 2(ia) introduced by the Amendment Act, the two new provisos appended to Section 3 would govern the norms of reservation which prescribes a different criteria, vis-à-vis the main provision and would apply irrespective of whether they are situated in areas covered by the Sixth Schedule to the Constitution or not.
After amendment of the Reservation Act, the Respondent No. 1 - University had to follow the reservation norms of 2% for SC candidates, 31% for ST candidates and 17% for OBC candidates which is in consonance with the second proviso to Section 3 of the Reservation Act inserted by virtue of the Amendment Act - the present appeal fails and the impugned judgment is upheld - Appeal dismissed.
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2022 (1) TMI 1372 - JHARKHAND HIGH COURT
Disposal of the appeal expeditiously - appellant apprehends that proper opportunity of hearing may not be granted to him to place his submission before the appellate authority - petitioner submits that urgency for taking up the writ petition has arisen on account of notice issued u/s 250 by C.I.T (Appeal) dated 17th January, 2022 requiring the appellant to furnish written submission and documents electronically on or before 28th January, 2022 at 03:00 p.m.- HELD THAT:- We have taken note of rival submission of learned counsel for the parties on the limited prayer of the petitioner. The apprehension expressed by the petitioner has been allayed by learned counsel for the Revenue also pointing out to the text of the notice dated 17th January, 2022.
C.I.T (Appeal) appears to be inclined to dispose of the appeal in an expeditious manner and has also asked the appellant to furnish ground-wise written submission along with supporting documentary evidence and clarifications/information etc., as per Annexure. Open for the petitioner to appear before the C.I.T (Appeal) electronically on the date fixed i.e., 28th January, 2022 and if so advised, seek some more time to submit their written submissions/documents.
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2022 (1) TMI 1371 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
Rejection of the resolution plan submitted by the Applicant - rejection on the ground that the applicant is ineligible to file resolution plan under section 29A of the Code - Section 60 (5) of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of NCLT Rules, 2016 - HELD THAT:- This Bench is of the opinion that the applicant squarely falls within the definition of Section 29A (b) and is barred to present resolution plan under Section 29A of the Code.
It is further noticed that the Union Bank of India vide its order dated 25.05.2021 categorically held that in terms of RBI master circular that the applicants are wilful defaulters and further that a show cause notice dated 13.11.2019 was served to the borrower/ promoter/ directors/ guarantors. The applicant was provided personal hearing/ opportunity on 08.09.2020 and 24.12.2020.
The finding of the Committee further categorised the applicant as wilful defaulter by diversion/ siphoning off the bank’s fund. The said order was reviewed by the Union Bank of India on 01.07.2021 and the review committee has confirmed the categorisation of applicants as wilful defaulter. The said action of categorisation of wilful defaulter was challenged by way of Writ Petition before the Hon’ble Bombay High Court in SHYAMLAL JAIDEV PANCHMATIYA & ANR. VERSUS UNION BANK PF INDIA & ORS. [2021 (9) TMI 1491 - BOMBAY HIGH COURT].
This Bench has no hesitation to conclude that the CoC has rightly rejected the resolution plan submitted by the Applicant herein and that he is ineligible to submit a plan under Section 29A of the Code - Application dismissed.
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2022 (1) TMI 1370 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI
Seeking liquidation of Corporate Debtor - no resolution plan submitted before the Adjudicating Authority by the Resolution Professional - HELD THAT:- This Bench is satisfied with the reasons that the only Resolution Plan received from the promoter of Corporate Debtor was rejected as the Corporate Debtor was declared as willful defaulter, the ground that no major assets are left in the company and lastly that COC with 100% voting has approved to liquidate the Corporate Debtor, this bench allows the IA No. 173 of 2021 and orders liquidation of Corporate Debtor.
On reading the Application and the documents enclosed therein, for the RP has complied with the procedure laid under the Code read with Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (Regulations), this is believed to be a case fit to pass liquidation order under sub-section 1 of section 33 of the Code as no resolution plan has been submitted before the Adjudicating Authority by the Resolution Professional.
It is directed that the Corporate Debtor to be liquidated in the manner as laid down in the Chapter by issuing Public Notice stating that the Corporate Debtor is in liquidation with a direction to the Liquidator to send this order to the ROC under which this Company has been registered - application allowed.
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2022 (1) TMI 1369 - RAJASTHAN HIGH COURT
TP adjustment - adjustment of Corporate Guarantee - HELD THAT:- As pointed out to us that the issue is squarely covered by a detailed judgment of this Court [2017 (12) TMI 583 - RAJASTHAN HIGH COURT] concerning this very assessee. Under the circumstances these questions are not considered.
Write off of loss on account of investment made in equity shares of one of its subsidiary - HELD THAT:-This issue is covered by a recent order [2021 (12) TMI 1407 - RAJASTHAN HIGH COURT] which also concerned this very assessee held that assessee had made investment in its subsidiary company in order to expand its business with a view to earn higher profit. The investment was thus driven by business expediency. The tribunal therefore committed no error as opined that such investment being in the nature of revenue expenditure was to be allowed under Section 37.
MAT computation - Write off of investment n the subsidiary company for the purpose of computing “book profit” u/s. 115JB - HELD THAT:- Full Bench of the Gujarat High Court in the case of CIT Vs. Vodafone Essar Gujarat Ltd. [2017 (8) TMI 451 - GUJARAT HIGH COURT] held that with insertion of clause (i) to the explanation with retrospective effect, any amount or amounts set aside for provision for diminution in the value of the asset made by the assessee, would be added back for computation of book profit under section 115JB - if this was not a mere provision made by the assessee by merely debiting the Profit and Loss Account and crediting the provision for bad and doubtful debt, but by simultaneously obliterating such provision from its accounts by reducing the corresponding amount from the loans and advances on the asset side of the balance sheet and consequently, at the end of the year showing the loans and advances on the asset aside of the balance sheet as net of the provision for bad debt, it would amount to a write off and such actual write off would not be hit by clause (i) of the explanation to section 115JB.
ITAT justification to remit back the issue of disallowance out of provision for doubtful loans and disallowance out of bad debts provision claimed in MAT to the file of the AO for verification - HELD THAT:- The questions as arise out of the order of the Income Tax Appellate Tribunal remanding certain issues to the assessing officer for fresh consideration. Being a pure remand and we are informed that decisions have also been rendered in such remand, no question of law arises.
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2022 (1) TMI 1368 - DELHI HIGH COURT
FCRA registration - Delay opening of an “FCRA bank account” with the State Bank of India - petitioner could not upload the FC-4 Form on the respondent’s portal within the scheduled time period of June 30, 2021 as there was delay in opening the designated account in the main Branch of the State Bank of India, 11, Sansad Marg, New Delhi – 110001 - HELD THAT:- On a specific query to the learned counsel for the petitioner what steps, were taken by the petitioner to open the account, when the concerned amendment was notified on October 7, 2020, the learned counsel for the petitioner seeks some time to take instructions and file relevant documents along with an affidavit.
Noting the said submission, re-notify on March 11, 2022.
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2022 (1) TMI 1367 - ITAT DELHI
TP Adjustment - specific domestic transaction as the case is covered u/s 92 BA - HELD THAT:- The undisputed fact is that as per sub-clause (r) of section 92 BA the assessee has undertaken the transaction which has exceeded the prescribed limit. It is also not in dispute that vide Finance Act,2017 w.e.f. 01.04.2017 the said sub-clause (r) of section 92BA has been omitted.
We find that an identical issue came up for adjudication before the coordinate bench, Bangalore in [2017 (12) TMI 1719 - ITAT BANGALORE] held court is to look to the provisions in the rule which has been introduced after omission of the previous rule to determine whether a pending proceeding will continue or lapse. If there is a provision therein that pending proceedings shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted then such proceeding will continue.
We, therefore, set aside this issue to the file of the Assessing Officer. The Assessing Officer is required to adjudicate the issue in accordance with law, after affording sufficient opportunity of being heard to the assessee.
Disallowance of deduction u/s 80IA - rate for eligibility of deduction - AR stated that the rate applied by the assessee is not correct and it is the say of the counsel that the rate charged by the electricity board to its consumers should be taken as rate for eligibility of deduction under section 80IA of the Act - HELD THAT:- We are of the considered view that this contention of the ld. counsel for the assessee is correct. The counsel has applied the rate which it has charged to the electricity board whereas the rate should have been the rate charged by the electricity board to its consumers. We, therefore, set aside this issue to the file of the Assessing Officer. The assessee is directed to furnish the rates charged by the electricity board to its consumers and the Assessing Officer is directed to verify the same and decide the issue afresh. Ground No. 4 is allowed for statistical purposes.
Claim of education cess as deductible u/s 37 - HELD THAT:- This issue has been extensively considered by the Hon’ble High Court of Bombay in the case of Sesa Goa [2020 (3) TMI 347 - BOMBAY HIGH COURT] We find that the co-ordinate bench has followed the decision of the Hon’ble Supreme Court in the case of K Srinivasan [1971 (11) TMI 2 - SUPREME COURT] However, the issue before the Hon’ble Supreme Court was whether the surcharge is part of tax or not. Whereas the issue before the Hon’ble Bombay High Court in the case of Sesa Goa [2020 (3) TMI 347 - BOMBAY HIGH COURT] was whether education cess is allowable as expenditure or not. Therefore, the decision of the Hon’ble Bombay High Court is directly on the claim of the assessee and respectfully following the same, we direct the Assessing Officer to allow the claim of deduction in respect of education cess paid by the assessee. Ground number 5 and additional ground is allowed.
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2022 (1) TMI 1366 - SUPREME COURT
Validity of bail granted - Drug Trafficking - recovery of substantial commercial quantities of drugs from a rented accommodation - Section 67 of the NDPS Act - HELD THAT:- On carefully perusing the impugned orders passed in each case, it emerges that except for the voluntary statements of A-1 and A-2 in the first case and that of the respondents themselves recorded under Section 67 of the NDPS Act, it appears, prima facie, that no substantial material was available with the prosecution at the time of arrest to connect the respondents with the allegations levelled against them of indulging in drug trafficking. It has not been denied by the prosecution that except for the respondent in SLP (Crl.) No. 1569/2021, none of the other respondents were found to be in possession of commercial quantities of psychotropic substances, as contemplated under the NDPS Act.
It has been held in clear terms in TOFAN SINGH VERSUS STATE OF TAMIL NADU [2020 (11) TMI 55 - SUPREME COURT] , that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail.
The evidence brought before us against Mohammed Afzal [A-2], respondent in SLP (Crl.) No. 1569/2021, subject matter of the second case i.e., NCB Case FN No. 48/01/07/2019/BZU, who was granted bail vide order dated 08th January, 2020, will have to be treated on an entirely different footing. There are specific allegations levelled against the said respondent regarding recovery of substantial commercial quantities of drugs from a rented accommodation occupied by him pursuant to which he was arrested on 16th June, 2019. This aspect has been completely overlooked while passing the order dated 08th January, 2020 wherein, the only reason that appears to have weighed with the High Court for releasing him on bail is that his case stands on the same footing as A-1, A-3 and A-4 who had been enlarged on bail vide orders dated 11th October, 2019, 16th September, 2019 and 09th September, 2019, in connection with the second case registered by the Department - A-2 cannot seek parity with the aforesaid co-accused and no such benefit could have been extended to him in view of Section 37 of the Act when he was found to be in conscious possession of commercial quantity of psychotropic substances, as contemplated under the NDPS Act.
The bail granted to the respondent-Mohmmed Afzal [A-2] is cancelled forthwith at this stage and he is directed to surrender before the Sessions Court/Special Judge (NDPS) within a period of two weeks, for being taken into custody - Petition disposed off.
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2022 (1) TMI 1365 - ITAT CHANDIGARH
Disallowance as prior period expenses - as argued expense was paid at a later date due to pending negotiation with the landlord - HELD THAT:- The factum of negotiation between the assessee and the landlord and an agreement towards the revised licence fee as happened in the month of Aug 2009 is clearly borne out of records and the liability towards the rent/licence fee though pertaining to the earlier period has crystallized during the year and is allowable in the hands of the assessee.
We therefore find that these expenses are duly allowable in the hands of the assessee as settled during the year and in any case, there are no changes in the tax rates and thus, no prejudice is caused to the Revenue and as held by the Courts, such an exercise of disallowing otherwise allowable expenses treating as mere prior period expenses will only result in an academic discussion without any tangible results.
Also aforesaid expenses in nature of rental payments are subject to TDS u/s 194I and the provisions of section 40(a) (ia) are equally attracted which provides for the allowability of expenses in the year in which the TDS has been deducted and paid.
In the instant case, it is a matter of record that the assessee has paid and accounted for these expenses in the books of accounts in the financial year relevant to the impugned assessment year and has deducted and deposited TDS in the financial year relevant to the impugned assessment year and not in the earlier assessment year. Therefore, even from the perspective of harmonious construction of all relevant provisions, the assessee deserves an allowance towards these expenses in the year under consideration. Decided in favour of assessee.
TDS u/s 194C - assessee has not deducted TDS under the head “Advertisement and publicity” on certain transactions - Disallowance u/s 40(a)(ia) - HELD THAT:- Assessee has filed relevant invoices/documentation in support of its contentions before the ld CIT(A) and therefore,CIT(A) findings that the assessee has not filed any evidence in support of his contention that the said payment does not require any TDS, is not borne out from the records.
Given that the material available on record has not been examined and no findings on merits of the additions have been recorded by the ld CIT(A) , we deem it appropriate that the matter be set-aside to the file of the ld CIT(A) to examine the same on merits after providing reasonable opportunity to the assessee. The contentions advanced on the merits have been left open and the assessee is free to advance the same before the ld CIT(A) as so advised. In the result, the ground no. 3 is allowed for statistical purposes.
Expenses debited under the head “general charges” - HELD THAT:- Going by the nature of expenses such as assets written off , provisions for expenses and old balances written off , it is prima facie not very clear whether these expenses can be claimed as revenues expenses and allowable under section 30 to 37 of the Act. Since these contentions have been raised for the first time and in absence of any findings of the lower authorities, we deem it appropriate to set-aside the same to the file of the ld CIT(A) who shall examine the aforesaid contentions so raised - ground no. 4 is allowed for statistical purposes.
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2022 (1) TMI 1364 - SUPREME COURT
Maintainability of suit - time limitation - whether the plea of the appellant is proved would depend upon evidence adduced at the trial? - HELD THAT:- The course of action which was followed by the learned trial Judge of directing the parties to address arguments on the issue of limitation was irregular. The issue of limitation in the present case would require evidence to be adduced.
Order XIV Rule 2 of the CPC stipulates that when issues of both law and facts arise in the same suit, the Court may dispose the suit by trying the issue of law first. For this purpose, the provision specifies two questions of law, which are (i) jurisdiction of the Court; and (ii) a bar to the suit created by any law for the time being in force.
Before this Court in NUSLI NEVILLE WADIA VERSUS IVORY PROPERTIES & ORS. [2019 (10) TMI 1314 - SUPREME COURT], the issue was whether the issue of limitation can be determined as a preliminary issue under Order XIV Rule 2. The three-judge bench of this court observed that if the issue of limitation is based on an admitted fact, it can be decided as a preliminary issue under Order XIV Rule(2)(b). However, if the facts surrounding the issue of limitation are disputed, it cannot be decided as a preliminary issue.
Since the determination of the issue of limitation in this case is not a pure question of law, it cannot be decided as preliminary issue under Order XIV Rule 2 of the CPC - Appeal allowed.
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2022 (1) TMI 1363 - ITAT BANGALORE
Validity of Assessment u/s 144C - mandatory for the AO to pass Draft Assessment Order in accordance with the procedure laid down - intent of the AO while passing the draft assessment order - HELD THAT: In the present case, the Ld.AO passed the draft assessment order u/s. 143(3) r.w.s. 144C (13) of the Act on 23.03.2016 which is accompanied with demand notice issued u/s. 156 of the Act dated 23.03.2016 and it is also noticed that in the draft assessment order itself, the AO recorded the statement as Demand notice issued accordingly. Penalty proceedings u/s. 271(1)(c) are initiated separately for the additions made.
Being so, it is observed that the draft assessment order passed by the AO is without following the due process of law as enumerated in the judgment in the case of Vijay Television [2014 (6) TMI 540 - MADRAS HIGH COURT]
Since the order passed by the AO is without following the due process of law and it cannot survive in the eyes of law, accordingly we quash the impugned assessment order before us - Decided in favour of assessee.
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2022 (1) TMI 1362 - ITAT BANGALORE
Validity of Assessment u/s 144C - mandatory for the AO to pass Draft Assessment Order in accordance with the procedure laid down - intent of the AO while passing the draft assessment order - HELD THAT:- In the present case, the Ld.AO passed the draft assessment order u/s. 143(3) r.w.s. 144C (13) of the Act on 28.12.2018 which is accompanied with demand notice issued u/s. 156 of the Act dated 21.12.2016 and it is also noticed that in the draft assessment order itself, the AO recorded the statement as Demand notice issued accordingly. Penalty proceedings u/s. 271(1)(c) are initiated separately for the additions made.
Being so, it is observed that the draft assessment order passed by the AO is without following the due process of law as enumerated in the judgment in the case of Vijay Television [2014 (6) TMI 540 - MADRAS HIGH COURT]
Since the order passed by the AO is without following the due process of law and it cannot survive in the eyes of law, accordingly we quash the impugned assessment order before us - Decided in favour of assessee.
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2022 (1) TMI 1361 - ITAT PUNE
Income from house property - Addition on account of notional income in respect of the unsold flats - unsold 37 flats shown as stock in trade - assessee filed return showing income from such business and also engaged in the business of property development - HELD THAT:- In the present case that there is no dispute that the profits of the business of construction by the assessee are chargeable to income-tax. Therefore, in our view that the unsold 37 flats are occupied by the assessee are as owner; business of construction is carried on by the assessee; the occupation of the flats is for the purpose of business; and profits of such business are chargeable to Income-tax.
Thus, in our opinion, all the four conditions provided in exclusion clause in section 22 of the Act are to be excluded, therefore, we hold that no addition on account of deemed rent on unsold 37 flats can be made in the hands of the assessee. DR did not dispute that the assessee recognized the unsold flats as stock-in-trade but however relied on the order of CIT(A). Thus, the order of CIT(A) is not justified and it is set aside. Thus, the grounds raised by the assessee are allowed.
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2022 (1) TMI 1360 - DELHI HIGH COURT
Seeking permission for withdrawal of petition - resolution plan approved - HELD THAT:- Ms. Khair on instructions from Col. Sanjeev Dhawan reiterates the contents of the application and prayer made therein. She states that without prejudice all the petitioners, i.e., petitioner Nos.1 to 63 seeks to withdraw the writ petition. Without prejudice, the writ petition is dismissed as withdrawn.
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2022 (1) TMI 1359 - SUPREME COURT
Principles of res-judicata - Seeking partition and separate possession of one-fourth share in the suit Schedule properties - main plank of argument of the Appellant is that the suit filed by the Plaintiff-Appellant herein could not have been dismissed on the principle of res judicata by holding that in A.S. No. 37 of 1993 there was already a clear finding to the effect that there was a partition of the suit properties between the members of the joint family and hence a fresh suit for partition and separate possession vis-à-vis the same properties could not have been filed by the Plaintiff as it is not maintainable.
HELD THAT:- The award is in the form of a resolution on the strength of the statement given by Periyaiya Servai and the consent statement given by P.R. Ramaswamy and P.R. Kasilingam, the two major sons of Periyaiya Servai. There are details as to how the properties had to be dealt with. The parties had also stated that they had read the above resolution and had agreed wholeheartedly to obey the provisions thereof.
On a perusal of the award which is in the form of a resolution, it is clear that there was no right created in any specific item or asset of the joint family properties in any person but the parties resolved to take certain actions in pursuance of a family arrangement. Therefore under Annexure P-10 (Ex. B-13) there was no right created in favour of any party in any specific item of joint family property. The said document which has been styled as an award is only a memorandum of understanding/family arrangement to be acted upon in future. Hence, in our considered view, the said document did not create rights in specific properties or assets of the family, in favour of specific persons. Therefore, the same did not require registration Under Section 17(1)(e) of the Act. The said document was in the nature of a document envisaged Under Section 17(2)(v) of the Act.
It can be safely concluded that the said award was a mere arrangement to divide the properties in future by metes and bounds as distinguished from an actual deed of partition under which there is not only a severance of status but also division of joint family properties by metes and bounds in specific properties. Hence it was exempted from registration Under Section 17(2)(v) of the Act. A document of partition which provides for effectuating a division of properties in future would be exempt from registration Under Section 17(2)(v). The test in such a case is whether the document itself creates an interest in a specific immovable property or merely creates a right to obtain another document of title. If a document does not by itself create a right or interest in immovable property, but merely creates a right to obtain another document, which will, when executed create a right in the person claiming relief, the former document does not require registration and is accordingly admissible in evidence.
In the instant case exhibit B-13 award is more in the nature of a memorandum of understanding, a mere agreement of the steps to be taken in future for the division of the properties. Hence, the said document did not require registration Under Section 17(1)(b) of the Act as under the said document no creation of rights in any specific joint family property was effected.
The next question that arises for our consideration is whether, the finding of the first appellate court in A.S. No. 37 of 1993 that the suit properties were partitioned in the year 1964 is binding on the parties and hence a fresh suit filed by the Plaintiff seeking the very same relief was not maintainable - Having regard to the fact that in the instant case there has been no challenge to the finding of partition between the parties till date and the same has attained finality we do not think that the Appellant can seek to rely on the judgment in Asrar Ahmed [[1946 (7) TMI 6 - PRIVY COUNCIL]]. Hence, the partition of the ancestral/joint family properties having found to have taken place in the 1964 and the same having been acted upon, a fresh suit for partition and separate possession of the suit properties was not at all maintainable. The principle of res judicata squarely applies in the present case.
Appeal dismissed.
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2022 (1) TMI 1358 - ITAT MUMBAI
Additions u/s.68 - sale proceeds of shares unexplained - addition made as considering it Pre-arranged transactions, Sale of scares and unusual rise in the price through rigging not backed by, Failure of the assessee to discharge its onus to prove that the LTCG claimed by it is genuine - as vehemently pleaded by the DR that AO in the remand report had only stated that the evidences submitted by the assessee are proper and genuine and had not stated that the transactions carried out by the assessee are proper and genuine
HELD THAT:- As entire evidences are filed by the assessee only in support of the transactions carried out by the assessee, we are unable to persuade ourselves to accept to the narrow argument of the revenue. When the evidences are accepted as proper and genuine, that too after due enquiries and examination thereon, obviously the transactions carried out by the assessee also would be proper and genuine. Hence the only logical conclusion would be that the ld. AO had indeed accepted the entire transactions together with its evidences as proper and genuine. We deem it unnecessary to go into the merits of the addition made herein.
The entire remand report of the ld. AO had already been reproduced herein supra. We hold that when the ld. AO had given a favourable report in his remand proceedings, then fairly the Revenue ought not to have preferred any further appeal before this Tribunal as there could not be any grievance for them.
We draw support in this regard on the decision of the Hon’ble Madras High Court in the case of Smt. B.Jayalakshmi [2018 (8) TMI 208 - MADRAS HIGH COURT] as categorically held that when the Assessing Officer had accepted the contentions of the assessee in the remand report, the Revenue could not be aggrieved by filing further appeal and since this fact had not been taken cognizance by the Tribunal in that case, the Hon’ble Madras High Court had remanded the matter back to the Tribunal for fresh consideration.
Admittedly, such conclusion was drawn by the ld. AO after carrying out detailed investigations and enquiries carried out with various parties as mandated. We find that the ld. CIT(A) granted relief based on the said remand report apart from giving relief on merits. We are not giving any opinion on the merits of the case. We find that at the threshold itself, this appeal is required to be decided against the Revenue by following the decision of the Hon’ble Madras High Court referred to supra in view of the fact that the ld. AO had accepted the entire contentions of the assessee in the remand report. We also find that the Revenue had not raised any grounds before us stating that remand report of the ld. AO is incorrect. Accordingly, the grounds raised by the Revenue are dismissed.
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2022 (1) TMI 1357 - ITAT SURAT
Assessment order u/s 144 r.w.s 147 treating assessee as AOP - HELD THAT:- We find that before the ld. CIT(A), the assessee filed copy of Satakhat. On perusal of the contents of said Satakhat, we find that it has direct relevance to the grounds of appeal raised by the assessee and the same require consideration. Therefore, instead of the fact that the copy of Satakhat was filed independently on not in the record of assessment for the year under consideration before AO or not, we admit the same as relevant evidence for real determination of issue in hand and remit the issue to the file of CIT(A) to adjudicate the issue afresh by considering the Satakhat dated 04.04.2011 and pass the order in accordance with law. In the result the ground No. III is allowed for statistical purpose.
Addition is made on estimation of income/project - The issue relevant to estimation of income of AOP is interlinked and also remitted back to CIT(A) to adjudicate the same after adjudication of ground of appeal in A.Y. 2011-12. The assessee is given liberty to file evidence / additional evidence to substantiate the ground of appeal and move appropriate application in case fresh/new evidence is filed to substantiate its ground of appeal or its contention.
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2022 (1) TMI 1356 - BOMBAY HIGH COURT
Validity of Reopening of assessment u/s 147 - notice has been issued after expiry of four years from the relevant Assessment Year - penny stock transactions - Change of opinion - HELD THAT:- As held in Aroni Commercials Limited[2014 (2) TMI 659 - BOMBAY HIGH COURT] once a query is raised during assessment proceedings and the assessee has replied to it, it follows that the query raised was a subject of consideration of the Assessing Officer while completing the assessment.
It is not necessary that an assessment order should contain reference and / or discussion to disclose its satisfaction in respect of the query raised. As noted earlier, the very issue of Petitioner entering into transactions, relating to the scrip of Confidence Finance & Trading Ltd., was a subject of consideration by the AO during the original assessment proceedings. It would, therefore, follow that re-opening of the assessment by the impugned notice is merely on the basis of change of opinion of the AO from what held earlier during the course of the assessment proceedings, leading to the assessment order. This change of opinion does not constitute justification and/ or reason to believe that income chargeable to tax, has escaped assessment. Decided in favour of assessee.
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2022 (1) TMI 1355 - TRIPURA HIGH COURT
Seeking a direction of this Court to transfer the original company petition before the National Company Law Tribunal(NCLT) in view of gazette notification dated 28th May 2016 as amended as well as further amendment to The Insolvency and Bankruptcy Code (Second Amendment) Act, 2018 published in the Gazette of India on 17th August 2018 - HELD THAT:- There can be no doubt when a party applies even in a pending case seeking winding-up it is obligatory on part of the High Court or any other Courts before whom the proceedings are pending to remit the matter to the Tribunal. It would be pertinent to note herein that when the order dated 21st March 2017 was passed rejecting the application for transfer, at that stage, The Insolvency and Bankruptcy Code(second Amendment) Act, 2018 was not available for consideration. Pursuant to 2018 amendment, the present application has come to be filed by respondent-Union Bank of India.
Application allowed.
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2022 (1) TMI 1354 - ITAT DELHI
Unaccounted and unexplained of Cash deposit out of the cash withdrawals - HELD THAT:- Addition as made and confirmed by the authorities below, is not justified. No reason is assigned for not accepting the contention of the assessee that deposit was made out of cash withdrawal. AO has failed to bring any evidence suggesting that the cash so withdrawn from the account was expended for any other purpose. Therefore, in the absence of such material the findings of authorities below cannot be sustained. AO is hereby directed to delete the addition. The ground is allowed.
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