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Showing 161 to 180 of 1440 Records
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2022 (2) TMI 1281 - ITAT HYDERABAD
TP Adjustment - Comparable selection - HELD THAT:- Companies functionally dissimilar with that of assessee engaged in providing broad range of software development, maintenance & support services and Information Technology Enabled Services to its Associated Enterprises need to be deselected.
Working capital adjustment - We allow the working adjustment done by the assessee.
Provision for bad and doubtful debts and bad debts as a non-operating expenditure - We remit this issue to the file of the AO with a direction decide the same in line with the order of ITAT for AY 2014-15 [2021 (1) TMI 25 - ITAT HYDERABAD] Thus, this ground is allowed for statistical purposes.
Non granting credit of DDT paid by the assessee on the dividends distributed to the shareholders - We remit these issues back to the file of AO with a direction to consider the evidences filed by the assessee and decide the issues in accordance with law after providing opportunity of being heard to the assessee. The assessee is directed to substantiate its claim by way of documentary evidence before the AO.
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2022 (2) TMI 1280 - ITAT BANGALORE
TP Adjustment - comparable selection - application of turnover filter - HELD THAT:- The Tribunal in the case of Autodesk India Pvt.Ltd. [2018 (7) TMI 1862 - ITAT BANGALORE] took note of all the conflicting decision on the issue and rendered its decision and in paragraph 17.7. of the decision held as that high turnover is a ground for excluding companies as not comparable with a company that has low turnover.
Thus we hold that companies listed in Sl.No.(a) to (g) of Grd.No.13 raised by the Assessee whose turnover in the current year is more than Rs.200 Crores should be excluded from the list of comparable companies.
Exclusion of R.S.Software (India) Ltd. - turnover in the earlier two years being more than Rs.200 crores in the light of Rule 10CA - This Tribunal in the case of M/s. Barracuda Network (India) Pvt. Ltd. [2022 (5) TMI 322 - ITAT BANGALORE] for Assessment Year 2016-17 held that R. S. Software (India) Ltd., is to be regarded as a comparable company, but the margins for Assessment Year 2014-15 and 2015-16 of the company have to be ignored because in those years they are to be regarded as not comparable. We accordingly direct the TPO to take the margins of this company for Financial Year 2015-16 alone.
Adjustment towards working capital - The issue with regard to the grant of working capital adjustment should be directed to be examined by the TPO/AO afresh in the light of the decision of the tribunal referred to above, after affording opportunity of being heard to the Assessee.
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2022 (2) TMI 1279 - ITAT BANGALORE
Transfer Pricing adjustment - payment of royalty to the Associated Enterprises (AE) by restricting to 1% against 4% as done by the assessee - HELD THAT:- Considering the decision of coordinate Bench in assessee's own case [2021 (12) TMI 1167 - ITAT BANGALORE] we allow this ground in favour of the assessee and hold that payment of royalty @ 4% is at arm's length.
TP adjustment - payment of interest on CCDs by re-characterizing the same to be External Commercial Borrowing (ECB) - HELD THAT:- In the instant case, admittedly, the CCDs are issued in JNR, interest is paid in INR and CCD's are repaid also in INR. Therefore, placing reliance on the judgment of the Hon'ble Delhi High Court in the case of CIT v. Cotton Naturals (I) Pvt. Ltd. [2015 (3) TMI 1031 - DELHI HIGH COURT] we hold that the TP study of the assessee to justify the interest rate by arriving at average rupee cost and comparing the same with SBI prime lending rate is correct - we uphold the TP study done by the assessee to arrive at the interest rate of 9% and 12% calculated based on the average rupee cost comparing the same with SBI prime lending rate. The assessee's claim in this ground is allowed.
Disallowance of expenditure u/s. 14A r.w Rule 8D - HELD THAT:- Disallowance made u/s. 14A of the Act ought to be deleted, since the assessee was not in receipt of any exempt income during the relevant assessment year - we allow this ground in favour of the assessee to hold that the disallowance made u/s. 14A is to be deleted as the assessee was not in receipt of any exempt income during the relevant assessment year.
Disallowance u/s 37 - foreign exchange fluctuation loss incurred in respect of loans availed - HELD THAT:- We have perused the RBI approval letter where it is clearly stated that the loan is required to be used only for the purpose for which it is approved that is the general corporate purposes - cash flow statement does not provide any basis to the finding that the amount is used for the repayment of short term loans unless there is a thorough examination is done on the inflows and outflows in the cash flow statement. We also take into consideration the fact that the assessee has offered the forex gain in respect of the same loan in the previous year and in the interest of justice it is only correct when the loss arises out of forex movement the same be allowed. Pursuant to the binding decision of the coordinate bench of the Bangalore Tribunal and based on the facts placed before us we hold that the loss claimed by the assessee due to the forex fluctuation of the loan is to be allowed. This ground is allowed in favour of the assessee
Disallowance of suo moto disallowance made in the earlier financial year 2009-10 u/s 40(a) - recharacterized as disallowance under section 37 - HELD THAT:- Whether the impugned expenditure can be disallowed u/s. 37 of the Act has not been dealt with either by the AO nor by the DRP. A.O. has authority to hold that expenditure (though provision expenditure) is not an allowable deduction u/s. 37 - Only those expenditure otherwise allowable u/s. 30 to 38 of the Act is deductible as per proviso to section 40(a)(ia) - Therefore, any expenditure not for the purpose of business, the A.O. can certainly re-characterize the same as not allowable expenditure u/s. 37 of the Act. However, as mentioned earlier, the A.O. nor DRP has not examined whether the said expenditure is allowable business expenditure u/s. 37 - A.O. held that provision of Rs. 5,42,35,783 disallowed by the assessee u/s. 40(a)(ia) of the Act cannot be allowed as deduction in the subsequent assessment year, since, the expenditure does not pertain to the subsequent year. DRP did not adjudicate the issue by observing that there is no variation to the returned income on this count. Therefore, the matter needs to be reconsidered by the AO afresh.
Tribunal has given a clear direction that the allowability of the impugned expenditure in 2011-12 or in the year under consideration needs to be reconsidered by the AO afresh. Respectfully following the decision of the coordinate bench of the Bangalore Tribunal we remand the claim of the assessee back to the AO and AO is directed accordingly. The appeal of the assessee on this ground is allowed for statistical purposes.
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2022 (2) TMI 1278 - ITAT SURAT
Reopening of assessment based on revenue audit objection - HELD THAT:- Reasons recorded never disclosed that reopening based on audit objection. Assessee submits that even the assessee has good case on merit and without going into controversy whether case is covered by exception clause of CBDT Circular or not he is ready to contest the appeal on merit and he has no objection if the order 15.04.2021 is re-called and the appeal is heard on merit.
Considering the concessions on the assessee that he is ready to argue the appeal on merit, the order dated 15.04.2021 is recalled and the appeal is fixed for hearing on merit on 31.03.2022. Issuance of separate notice is dispensed with as the date of hearing was fixed with the consent of both the parties. Miscellaneous Application filed by the Revenue is allowed.
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2022 (2) TMI 1277 - ITAT AHMEDABAD
Depreciation on Government's Grants - reduction of the amount of Capital Grants & Subsidies and Consumers' Contribution from the total cost of the Plant & Machinery for the purpose of allowing depreciation - HELD THAT:- Since the Ld. CIT(A) has followed the order of the Ld. CIT(A) in the case of the assessee for assessment year 2006-07 [2016 (12) TMI 946 - ITAT AHMEDABAD] while treating the entire capital subsidy grant and consumers contribution as capital in nature thus reducing the cost of capital asset and as a consequence the claim of depreciation thereon, and which issue has been restored back to the A.O. by the ITAT with the direction to determine the proportionate amount of grant relating to each asset, the said decision will apply to the present case also following which the issue in the present case also is restored back to the A.O. to be decided in accordance with the direction of the ITAT in assessment year 2006-07.
Disallowance under the head small & low value items written off - HELD THAT:- In view of the same since identical issue stands adjudicated in favour of the assessee in assessment year 2006-07, the issue stands covered by the said order of the ITAT. Accordingly, the claim of the assessee to small and low value item written off is allowed.
Disallowance of Miscellaneous losses and write offs - assessee pointed out that it had been submitted to the Ld. CIT(A) that the impugned losses and write off were on account of loss material through pilferage, shortage of material in transit, shortage arising on physical verification, obsolescence of materials, stores, loss in sale of scrap etc. - HELD THAT:- In view of the above since identical disallowance has been deleted by the ITAT in the case of sister concern of the assessee [2015 (6) TMI 1096 - ITAT AHMEDABAD], the decision in the said case would squarely apply in the present case also following which the impugned disallowances of write offs amounting is deleted.
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2022 (2) TMI 1276 - DELHI HIGH COURT
Sanction of Building plan - case of petitioner is that the plan has been got sanctioned by misrepresentation and not disclosing that there is litigation pending in respect of the subject property - sale of the subject property under the SARFAESI Act - HELD THAT:- The remedy of the petitioner to challenge the sale is either before the DRT or DRAT, which remedy petitioner has already initiated and admittedly there is no interim protection granted to the petitioner. Thus, petitioner cannot approach this Court by seeking to invoke Article 226 of the Constitution of India to indirectly seek the same relief which petitioner has failed to get from DRT and DRAT.
The contention of the petitioner that representation of the petitioner given to the Deputy Commissioner, North Delhi Municipal Corporation has remained unanswered and a direction be issued to decide the representation is also of no consequence - The Commissioner, MCD is not the authority to comment upon the proceedings which are pending before the DRT or DRAT under the SARFAESI ACT. Commissioner has to act upon the sale certificate issued and upon the title of the property that today stands vested in respondent Nos.2 to 4.
This Court is not inclined to exercise discretionary powers under Article 226 of the Constitution of India - Petition dismissed.
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2022 (2) TMI 1275 - ITAT AMRITSAR
Revision u/s 263 - deduction u/s 80P - Pr. CIT has held that the benefit of Section 80P is only admissible to the extent of business activity with members,thus, the assessee was not entitled to deduction under section 80P(2)(d) in respect of investment made in HDFC Bank - assessee, a co-op credit society, was engaged in providing credit facilities to its members. The assessee had surplus funds which it invested in deposits with Commercial Banks - whether the said interest earned on the said deposits was “business profits” and eligible for deduction u/s 80P(2)(a)(i)? - HELD THAT:- On identical facts, in the case of “the NBI Employees Co-operative Non- Agricultural Thrift & Credit Society Ltd.[2022 (2) TMI 1274 - ITAT AMRITSAR] we have discussed the issue at length and decided the same in favour of department, following the Hon’ble Jurisdictional Punjab and Haryana High Court, in the case M/s Punjab State Co-operative Federation of Housing Building Societies Ltd.2011 (5) TMI 219 - PUNJAB AND HARYANA HIGH COURT] wherein the Hon’ble High Court, while following the judgment of Hon’ble Supreme Court, in the case of The Totgars Cooperative Sale Society Ltd. [2010 (2) TMI 3 - SUPREME COURT], have held that interest received by the assessee from Commercial banks was not covered by Section 80P(2)(a)(i) of the Act and was taxable under section 56, being income from other sources. We held such interest income is to be charged to Tax as income from other sources in the context of the assessee due to the non-availability of deduction u/s.80P(2)(d) on such amount.
We find no infirmity in the order of the Pr. CIT passed U/s 263 of the Act by holding the assessment order as prejudicial to the interest of revenue because the interest income was charged to Tax as income from other sources in the context of the assessee due to the non-availability of deduction u/s.80P(2)(d) on such amount. - Decided against assessee.
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2022 (2) TMI 1274 - ITAT AMRITSAR
Revision u/s 263 - disallowing deduction u/s 80P(2)(a)(i) - whether the said interest earned on the said deposits was “business profits” and eligible for deduction u/s 80P(2)(a)(i)? - HELD THAT:- The provisions of section 80P(2)(d) of the Income Tax Act, 1961, clearly provide deduction on interest from investment with any other Co-operative Society only whereas the disputed interest income has not been earned from any Co-operative Society. In this connection, the Ld. Pr. CIT has rightly placed reliance on the judgment of the Hon’ble Jurisdictional Punjab and Haryana High Court, in the case M/s Punjab State Co-operative Federation of Housing Building Societies Ltd., [2011 (5) TMI 219 - PUNJAB AND HARYANA HIGH COURT] wherein the Hon’ble High Court, following the judgment of Hon’ble Supreme Court, in the case of The Totgars Co-operative Sale Society Ltd [2010 (2) TMI 3 - SUPREME COURT] have held that interest received by the assessee from Commercial banks was not covered by Section 80P(2)(a)(i) of the Act and was taxable under section 56, being income from other sources.
The assessment order in not adding such interest to the total income, can be construed as prejudicial to the interest of revenue because such interest income is charged to Tax as income from other sources in the context of the assessee due to the non-availability of deduction u/s.80P(2)(d) on such amount.
We, therefore, hold that the Ld. Pr.CIT was justified in revising the assessment order. The impugned order is upheld.
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2022 (2) TMI 1273 - ITAT SURAT
Rectification u/s 154 - non-consideration of decision of Jurisdictional High Court - Whether effect of provision of section 234E of the Act is not retrospective and the same is prospective? - HELD THAT:- We find that on careful perusal of our order is contrary to the decision is contrary to the finding of jurisdictional High Court as, we have missed the material finding of Hon'ble High Court. Considering the fact that decision [2021 (7) TMI 1373 - ITAT SURAT] is in conflict with the order of Hon'ble Jurisdictional High Court, therefore, this is a mistake apparent on record. Therefore, the consolidated order is recalled. Considering the fact that we have recalled the order, the hearing of all the appeals is fixed on 30.05.2022, for hearing all the appeals afresh on merit. Parties be informed accordingly, copy of this order be kept in all files - All the MA’s filed by revenue are allowed.
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2022 (2) TMI 1272 - ITAT BANGALORE
Delayed Employees share of PF/ESI - whether the amendment to the provisions to section 43B and 36(1)(va) of the Act by the Finance Act, 2021, has to be construed as retrospective and applicable for the period prior to 01.04.2021 also? - HELD THAT:- In this case there is no dispute that the assessee made payment of the Employees share of PF/ESI on or before the due date for filing return of income for AY 2017-18 u/s.139(1) of the Act.
The explanatory memorandum to the Finance Act, 2021 proposing amendment in section 36(1)(va) as well as section 43B is applicable only from 01.04.2021. These provisions impose a liability on an assessee and therefore cannot be construed as applicable with retrospective effect unless the legislature specifically says so. In the decisions referred to by us in the earlier paragraph of this order on identical issue the tribunal has taken a view that the aforesaid amendment is applicable only prospectively i.e., from 1.4.2021. We are therefore of the view that the impugned additions made under section 36(1)(va) of the Act, deserves to be deleted. Appeal of assessee allowed.
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2022 (2) TMI 1271 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI
CIRP proceedings - relevancy of stamp duties - Whether the pleas of deficit stamp duty, non-payment of stamp duty can be raised by a Corporate Debtor in a Section 7 application more so when the 'debt' and 'default' are proved even without relying on those documents? - appropriate stage and forum for raising such grievances - HELD THAT:- Section 7 application under the IBC can be filed in a simple form prescribed in the Code even without any pleadings. Similarly, the 'debt' and 'default' can be proved through the records of 'debt' and 'default' maintained by the "information utility" even without filing any documents by the party. When once the Adjudicating Authority is satisfied with these two legal requirements and if the application is complete in accordance with the code, the Adjudicating Authority has no option except to admit the Company Petition without going into any other trivial technical issues raised by the Corporate Debtor as held by Hon'ble Supreme Court in various rulings.
The above plea of Stamp Duty is not available to the Corporate Debtor in the present case when once the debt and default are proved without looking into the above documents and accordingly the first issue is answered in negative. It is also pertinent to mention here that as per the terms and conditions of the NCD Subscription Agreement it is the Petitioner/Corporate Debtor that shall bear all documentation charges (including stamp duty) legal and valuation charges. Therefore, the Petitioner shall not be permitted to take advantage of his own wrong.
When and before whom the issue of stamp duty has to be raised? - HELD THAT:- It is very clear from the plain reading of the provisions of Maharashtra Stamp Act and Indian Stamp Act, that a duty is cast upon the authority before whom the document is sought to be used as evidence by the party for the purpose of enforcing the contractual rights and obligations.
The proper course of action that needs to be adopted is to dismiss the above Misc. Application without getting into the issue of stamp duty as it is irrelevant and uncalled for in a Section 7 Application more so when the 'debt' and 'default' are proved otherwise without looking into those documents - Application dismissed.
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2022 (2) TMI 1270 - ITAT DELHI
Validity of the assessment order passed u/s 153C - date of recording of satisfaction - satisfaction recorded in searched person and the person other than the searched person - Scope of amended provisions of section 153C - HELD THAT:- The crucial date that has to be borne in mind is the date of search. Admittedly, in the facts of the present case, the date of search is 07.04.2016, which is prior to the date of amendment made to section 153A and 153C vide Finance Act, 2017.
Taking note of the CBDT circular, the Hon’ble Gujarat High Court, in case of Anil Kumar Gopikishan Arawal [2019 (6) TMI 746 - GUJARAT HIGH COURT] has held that the amended provisions of section 153C of the Act would apply where search and seizure is made after the amendment. Considered in the aforesaid perspective, the apprehension of the Revenue that if the amended provisions are not applied with reference to the date of recording of satisfaction there will be different sets of assessment years for the searched person and the person other than the searched person, in our view, is completely misplaced. This is so, because, once the amended provisions of sections 153A and 153C are applicable in respect of search and seizure operation initiated under section 132 or requisition made under Section 132A of the Act post 01.04.2017, the provisions of sections 153A and 153C would be applicable to the same set of assessment years, both in case of the searched person and the person other than the searched person.
In case of other person u/s 153C of the Act, the starting point for computation of the block period would be the date from on which based on the seized documents, notice is issued to the other person - As further held that the amendment made in section 153C by Finance Act 2017 w.e.f. 1st April 2017 which states that block period for the “searched person” as well as the “other person” would be same six AYs immediately preceding the year of search is only prospective. It makes the things clear that the search that took place in this case is prior to amendment unaffected by the amendment made by way of Finance Act 2017.
As respectfully following the decision of the coordinate bench in assessee’s own case [2021 (6) TMI 368 - ITAT DELHI] we hold that the impugned assessment order passed under section 153C of the Act, is wholly without jurisdiction, hence, invalid. Accordingly, we quash the same. Consequently, the order of learned Commissioner (Appeals) is set aside. - Decided in favour of assessee.
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2022 (2) TMI 1269 - ITAT MUMBAI
Rectification of mistake u/s 154 - TDS u/s 194H - payment of the discounts allowed to its prepaid distributors on sale of starter kits and prepaid recharge vouchers - it is assesses plea that in the aforesaid order of ITAT ground No.1 raised by the revenue has not been adjudicated - HELD THAT:- A reading of the ITAT order shows that ITAT has only adjudicated the ground No.2; and the ground No.1 has not been adjudicated. Ld. Counsel of the assessee fairly agreed to the above.
Accordingly, we are of the considered opinion that a mistake apparent form record has crept into the ITAT order inasmuch as ground No.1 duly raised before it has not been adjudicated. Accordingly, the aforesaid order of the ITAT is recalled for the limited purpose of adjudicating ground No.1, which has remained un-adjudicated. Assessees miscellaneous application stands allowed as above.
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2022 (2) TMI 1268 - SUPREME COURT
Forfeiture of right of the Defendant to file the written statement stood with expiry of 120 days from the date of service of summons - proviso to Order VIII Rule 1 of the Code of Civil Procedure, 1908 - extension of the period of limitation prescribed under the general law of limitation or under any special law - Whether the opportunity of filing written statement in the subject suit has rightly been declined or the Appellant could be extended further relaxation in view of the orders passed and issued in the wake of COVID-19 pandemic?
Time limit for filing written statement and consequences of default - HELD THAT:- By virtue of Section 16 thereof, the Commercial Court is to follow the provisions of Code of Civil Procedure as amended by the Act in the trial of a suit in respect to a Commercial dispute of a Specified Value. The relevant provisions contained in Order V Rule 1, Order VIII Rule 1 and Order VIII Rule 10 Code of Civil Procedure, have been reproduced hereinabove; and it is manifest that the said provisions not only envisage strict timelines for filing of written statement but even provide for consequences of default, while restricting the powers of the Court to extend the time for filing written statement beyond the period prescribed. Tersely put, as per the mandate of the said provisions: (a) the Defendant is under an obligation to file the written statement of his defence within 30 days of service of summons; (b) if he fails to file the written statement within the said period of 30 days, he may be allowed to file the written statement on such other day as the Court may specify for reasons to be recorded in writing and on payment of such costs as the Court may impose but this other day, in any case, cannot go beyond 120 days from the date of service of summons; (c) on expiry of 120th day from the date of service of summons, the Defendant forfeits the right to file the written statement and no Court can make an order to extend such time beyond 120 days from the date of service of summons.
The question in the present case is, as to whether the said provisions and principles are required to be applied irrespective of the operation and effect of other orders passed/issued by the Courts under the force of aberrant, abnormal and extraordinary circumstances? In our view, the answer to this question cannot be in the affirmative for a variety of reasons.
Having regard to the purpose for which this Court had exercised the plenary powers Under Article 142 of the Constitution of India and issued necessary orders from time to time in SMWP No. 3 of 2020, we are clearly of the view that the period envisaged finally in the order dated 23.09.2021 is required to be excluded in computing the period of limitation even for filing the written statement and even in cases where the delay is otherwise not condonable.
It is beyond cavil that if the prescribed period for any suit/appeal/application expires on day when the Court is considered 'closed', such proceedings may be instituted on the re-opening day. Significantly, the Explanation to Section 4 of the Limitation Act, 1963 makes it clear that a day when the Court may not as such be closed in physical sense, it would be 'deemed' to be closed, if during any part of its normal working hours, it remains closed on that day for any particular proceedings or work.
The mandates of Rule 1(1) of Order V, Rule 1 of Order VIII as also Rule 10 of Order VIII, as applicable to the Commercial dispute of a Specified Value, do operate in the manner that after expiry of 120th day from the date of service of summons, the Defendant forfeits the right to submit his written statement and the Court cannot allow the same to be taken on record but, these provisions are intended to provide the consequences in relation to a Defendant who omits to perform his part in progress of the suit as envisaged by the Rules of procedure and are not intended to override all other provisions of Code of Civil Procedure like those of Section 10. These comments are necessitated for the reason that the Trial Court seems to have simply ignored the requirements of dealing with the pending applications with requisite expedition.
The written statement already prepared and notarised by the Defendant-Appellant deserves to be taken on record and the Trial Court deserves to be directed to proceed with the matter in accordance with law - Appeal allowed.
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2022 (2) TMI 1267 - NATIONAL COMPANY LAW TRIBUNAL JAIPUR
Seeking rectification of order - Applicant Nos. 2 to 4 names have been deleted from the array of the names of Financial Creditors - Mr. Shiv Mangal Sharma, Adv. appearing on behalf of Respondent/ Corporate Debtor submits that his presence be marked in the matter - HELD THAT:- The order dated 07.02.2022 is rectified accordingly. The names of Applicant Nos. 2, 3 & 4 as mentioned in the cause title of the Order dated 07.02.2022 are deleted in terms of the Order dated 18.12.2019.
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2022 (2) TMI 1266 - GUJARAT HIGH COURT
Condonation of delay of 399 days caused in preferring Appeal - restraint from transferring, alienating or creating interest of any third party in respect of suit property till final disposal of the suit - HELD THAT:- This is an application for consideration of delay caused in preferring Appeal from order. Therefore, the decision let into the condonation of delay as to whether there was sufficient cause or not are to be taken into consideration. The decision based upon the merits of the original case is concerned, has no relevance at this stage because this Court is not dealing with the merits of the case in detail at this stage. Merits needs only to be looked into with a view to see as to whether any legal right is available to the applicant herein or not. Therefore, the decisions relied upon by both the sides as to legality or otherwise of the impugned order of injunction is concerned, has no relevance at this stage.
It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Rule of limitation are not meant to destroy the right of parties - While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.
Considering the prevalent economy condition of the parties as well as even of the Country, the financial crisis can be considered to be one of the grounds for condonation of delay. The pivotal point of consideration would be whether the parties concerned has taken dilatory tactics in proceeding with the matter for initiated any proceedings or whether there is a malafide on his part or not. If there is a malafide attributed and established against the party concerned, then definitely even shortest delay cannot be condoned. It cannot be presumed that a person against whom an interim injunction is operating, would adopt dilatory tactics except in case of compelled circumstances or circumstances out of his control, he may not be in a position to initiate or execute or take appropriate immediate steps against the injunction operating against him - Therefore, it cannot be presumed that the applicant was not proceeding with the matter bonafidely or there was dilatory tactics on his part in initiating the proceedings of Appeal from Order against the impugned order of injunction which is operating against him. Therefore, in present case, the applicant has made out sufficient cause for condonation of delay of 399 days occurred in preferring Appeal from Order.
The delay of 399 days caused in preferring Appeal is hereby condoned - Application allowed.
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2022 (2) TMI 1265 - GUJARAT HIGH COURT
Condonation of delay of 132 days caused in preferring the regular civil appeal - sufficient cause shown for delay or not - HELD THAT:- It is trite that in a delay application, sufficient cause is the paramount consideration and if sufficient cause is shown, the Court should generally condone the delay. However, if the sufficient cause is imbibed with the laxity on the part of the delayer despite due knowledge, then Court should restrain itself from encouraging such practice and condone the delay.
The application for condonation of delay was not objected by the respondents herein and no reply/ written objections appear to have been filed against the delay condonation application. It is pertinent to note here that notice of this writ petition is also served upon the respondents and here also, the respondents have chosen not the appear before this Court - sufficient cause appears to have been shown by the petitioner for delay.
As per the catena of decisions of the Apex Court, “sufficient cause” in Section 5 of the Limitation Act must receive a liberal construction so as to advance the substantial justice and generally, delay in preferring the appeals are required to be condoned in the interest of justice - Thus, the consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.
Another ground on which the learned first appellate Judge has rejected the application for condonation of delay is nonjoinder of necessary parties viz. original plaintiff Nos. 6 and 7, who happen to be the father and mother of original plaintiff namely deceased Sanjaybhai Popatbhai Mer - when the respondents have chosen not to resist the said application, with a view to fend off multiplicity of proceedings, such a curable technicality ought to have been avoided.
Petition allowed.
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2022 (2) TMI 1264 - SC ORDER
Disallowance u/s 14A r.w.r. 8D - investment in the form of share application money by the company would only result in exempt income - as per HC only expenses proportionate to earning of exempt income could be disallowed under Section 14A of the Act and the decision of MAXOPP INVESTMENT LTD [2018 (3) TMI 805 - SUPREME COURT] is an authority for the aforesaid proposition that the provision is relatable to earning of actual income - HELD THAT:- ORDER - Issue notice.
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2022 (2) TMI 1263 - ITAT BANGALORE
Delayed employees' contribution to PF and ESI within the due date - scope of amendment - HELD THAT:- We hold that the amendment to section 36(1)(va) and 43B of the I.T.Act will not have application for the relevant assessment year, namely assessment year 2018-2019. Accordingly, we direct the A.O. to grant deduction in respect of employees' contribution to PF and ESI since the assessee has made the payment before the due date of filing of return u/s 139(1) of the I.T.Act. It is ordered accordingly. - Appeal of assessee allowed.
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2022 (2) TMI 1262 - NATIONAL COMPANY LAW TRIBUNAL JAIPUR
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- Upon a detailed consideration of the application and documents filed by the Applicant, it is apparent that the payment of the claim amount has been defaulted by the Corporate Debtor. Hence, this Adjudicating Authority is inclined to commence CIRP against the Corporate Debtor as envisaged under the provisions of IBC, 2016.
Petition admitted - moratorium declared.
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