|
Advanced Search Options
Case Laws
Showing 21 to 40 of 1172 Records
-
2021 (6) TMI 1152 - MADHYA PRADESH HIGH COURT
Condonation of delay in filing application - genuine belief of appellant that no order in appeal existed before receiving of Sabka Vishwas letter from the department or not - malafide on part of appellant in late filing of appeal or not - HELD THAT:- Even though the delay in filing the appeal is to be considered liberally, but the fact remains that the appropriate reason should be assigned for condoning the delay. There is no justification shown by the appellant that despite of the fact that the case was finally heard and decided by the authority where he was represented by the counsel, he has made any attempt to find out the outcome of the case pending before the authority for more than nine years and only when a notice of demand was raised, he has filed the appeal. The only reason which has been given for delay in filing the appeal is that the counsel did not inform regarding the order passed by the authority. That cannot be considered to be a genuine reason for condoning the delay. The appellant himself should be vigilent about his rights. Once he is aware of the fact that the case is considered and heard by the authority, he should have pursued the matter or approached the counsel for knowing the outcome within a reasonable time. Waiting for the information to be given by the counsel for almost ten years, is not justifiable. Under these circumstances, we do not find it appropriate to condone the huge delay of approximately ten years in filing the appeal.
The impugned order reflects that the department has produced the relevant extract of the dispatch register to show acknowledgement card pointing out the delivery of the impugned order to the appellant within time. The same cannot be negated in terms of the affidavit which has been submitted by the appellant himself before the appellate authority. Thus, no illegality is committed by the appellate authority in not condoning the huge delay of approximately ten years. The impugned order passed by the appellate authority is a well reasoned and justified order.
There are no ground to condone the huge delay in filing the appeal. The impugned order has rightly been passed, which does not call for any interference in the present appeal - appeal dismissed.
-
2021 (6) TMI 1151 - BOMBAY HIGH COURT
Rejection of plaint against Defendant Nos. 4 to 6 for want of a cause of action under Order VII Rule 11(a) of the Code of Civil Procedure - It is contended that the Plaintiffs were ready and willing to pay the balance consideration, however, the Vendors refused to perform their part of the contract - HELD THAT:- The earlier decision rendered by the Supreme Court in the case of Church of Christ [2012 (7) TMI 1029 - SUPREME COURT] needs to be followed which has laid down that the plaint as a whole can be rejected against some of the defendants. The Learned Single Judge was therefore correct in holding that there is no legal embargo on rejecting the plaint as a whole against some of the defendants.
Whether the plaint does not disclose cause of action against Defendant Nos. 4 to 6 warranting rejection against them, in terms of Order VII Rule 11(a) of the Code? - HELD THAT:- What amounts to ‘cause of action’ is well settled by the Supreme Court in its various decisions. In this regard, we refer to the decision of the Supreme Court in the case of A.B.C. Laminart (P) Ltd. vs. A. P. Agencies [1989 (3) TMI 370 - SUPREME COURT], wherein the meaning of the expression “cause of action” is explained where it was held that Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.
The Plaint discloses sufficient cause of action against Defendant Nos. 4 to 6. The pleadings are not a mere illusion of a cause of action. The Plaintiffs have demonstrated that they have a right to sue Defendant Nos. 4 to 6 - Whether Defendant Nos. 4 to 6 can be held liable to pay damages will depend on the merits of the case. However, a bare reading of the Plaint conveys that damages are also claimed from Defendants Nos. 4 to 6, which is relevant.
Under the scheme of Order II Rule 2 of the Code, it is necessary that parties must claim all the reliefs as available to them at the time of filing of the suit. Any intentional omission debars a second suit on the same cause of action. A plaintiff is not required to file a separate suit for other reliefs, where the other reliefs flow from the same cause of action. The relief of specific performance and the alternative claim of refund of earnest amount emanate from the same cause of action, and therefore a second suit for recovery of money may be untenable if filed by the Plaintiffs against Defendant Nos. 4 to 6.
Thus, a plaint can be rejected as a whole against some of the defendants - the Plaint in the present Suit discloses sufficient cause of action against Defendant Nos. 4 to 6 in context of the Plaintiff’s alternate claim for refund of earnest amount - Notice of motion dismissed - appeal allowed.
-
2021 (6) TMI 1150 - ITAT AHMEDABAD
Assessment u/s 153A - Unexplained cash credits u/s 68 - whether incriminating material found during the course of search pertaining to investment made by various group members in share capital of the assessee company or receipt of cash/unaccounted money against sale of investments by the assessee company found? - HELD THAT:- Addition made u/s 68 cannot be upheld and are required to be deleted as no incriminating material found during the course of search.
Further additions made by Ld. A.O. by estimating unexplained expenditure as required to be deleted and held that these additions are beyond the scope of AO passed u/s 153A of the Act and finally addition made u/s 68 and unexplained expenditure for both the Assessment Years were deleted.
‘On-money’ receipt - Whether same will be taxed in the year in which sales are recognized in the books of account and that too at the rate are 17.5% of the ‘On-money’ receipt? - HELD THAT:- As settled law that on-money is required to be taxed in the year in which amount received through cheque is taxed. Addition on account of 22 unsold units have been offered in the year of sale in subsequent years hence addition of the same cannot be made considering that the assessee has made any unaccounted sale of such units during A.Y. 2014-15.
And further stated that similar units sold by other group cases being M/s. autocare Services, M/s. Sumangal Enterprise etc. which have filed Settlement Petition before Hon’ble Income Tax Settlement Commission, Mumbai has estimated net profit @ 17.5% being profit estimated on on-money as well as turnover shown in books of account. And further stated that it is settled legal law and entire on-money cannot be taxed but only profit embedded on alleged on-money can be taxed.
Additions made for 51 units in AY 2014-15, the amount worked (subject to verification by the AO) out above for 30 units only remains for A.Y. 2014-15, the amount to be worked out for 18 units and 2 units as discussed before are to be taxed in A.Y. 2015-16 and A.Y. 2016-17 respectively and the amount to be worked out for remaining/unsold 1 unit is to be taxed in the year when it may be sold.
-
2021 (6) TMI 1149 - MADRAS HIGH COURT
Seeking grant of Bail - Smuggling - prohibited goods - Bharath Jeera Goli Candy Mukh - prohibited goods or not - service of summons u/s 108 of Customs Act - HELD THAT:- Considering the gravity of offence committed by the petitioner and the quantity of contraband seized is very high and bail is prohibited u/s. 37 of NDPS Act, this Court is not inclined to grant bail to the petitioner.
Accordingly, this Criminal Original Petition is dismissed.
-
2021 (6) TMI 1148 - ITAT MUMBAI
Addition u/s 68 - unsecured loans and disallowance made on account of interest and commission - HELD THAT:- No good reason to interfere and reverse the findings of the CIT(A), especially when the facts being identical to the A.Y.2013-14 and A.Y.2014-15 wherein the Tribunal deleted the addition made u/s. 68 of the Act which order has been followed by the Ld.CIT(A). Thus, we do not find any infirmity in the order passed by the Ld.CIT(A). Grounds raised by the revenue are dismissed.
Penalty u/s. 271(1)(c) - addition u/s. 68 in assessment proceedings - HELD THAT:- we observe that the Tribunal has deleted the quantum addition made by the AO u/s. 68 of the Act. Since the quantum addition has been deleted by the Tribunal the Ld. Commissioner of Income-tax (Appeals) has rightly deleted the penalty as no penalty will survive. Decided against revenue.
-
2021 (6) TMI 1147 - AUTHORITY FOR ADVANCE RULINGS, CUSTOMS, NEW DELHI
Classification of goods proposed to be imported - Betel Nuts such as API Supari - Chikni Supari - unflavoured Supari - flavoured Supari - Boiled Supari (all packed in consumer packing and bulk packing) - to be classified under heading 080280 of the schedule to the Customs Tariff Act, 1975 or under Chapter heading 21069030 of the Customs Tariff.
HELD THAT:- The basic raw material for each of the five goods is raw betel nut, which is classifiable under Chapter 8, more specifically sub-heading 080280. It is noted that Chapter 8 covers only edible nuts; inedible nuts and fruits being excluded by virtue of Chapter Note l; and that betel nut/supari are masticatory. However, these items have been subjected to certain processes and added with certain materials, resulting in the question being posed whether the said processes and mixing/addition of certain materials are substantive enough to lead to the said five goods be considered as "preparation of betel nut" that would make them classifiable under Chapter 21 by virtue of Supplementary note 2 of Chapter 21. Alternatively, whether the processes carried out on the same for cleaning, preserving and making them more attractive to certain tastes/ preferences are too minor to fall short of rendering them as preparations of betel nuts. Further, it would be inadvisable and inappropriate to approach the issue of classification of the said five goods solely with the prism of the positive nature of Supplementary Note 2 to Chapter 21.
The processes to which raw betel nuts have been subjected to obtain API supari, Chikni supari, unflavoured supari and boiled supari are squarely in the nature of processes referred to in the Chapter Note 3 to Chapter 8 and HSN Note. Therefore, at the end of the said processes, the betel nuts retain the character of betel nut and do not qualify to be considered as "preparations" of betel nut, which is sine qua non for a good to be classifiable under Chapter 21.
Flavoured supari - whether the addition of special flavouring agents would render the betel nuts into preparations of betel nuts, classifiable under Chapter 21? - HELD THAT:- The judgment of the Hon’ble Supreme Court of India in the case of M/s Crane Betel Nut Powder Works [2007 (3) TMI 6 - SUPREME COURT] and of the CESTAT, Chennai in the case of M/s Azam Laminators Pvt. Ltd. [2019 (3) TMI 782 - CESTAT CHENNAI] [where scented betel nut was being manufactured by cracking of dried betel nut into small pieces, and thereafter, gently heating it with addition of vanaspati oil, sweetening and flavouring agents and marketed in small pouches as Nizam Pakku (in Tamil)/Betel Nut (in English), the Hon'ble CESTAT held the resultant product classifiable under sub-heading 08029019 of Central Excise Tariff and not under 21069030 as supari for period after 07.07.20091 are relevant. Put simply, these decisions clearly imply that addition of flavouring agents do not change the character of the good, meaning in the present case betel nut would continue to remain betel nut and not become preparation of betel nut.
In recent judgement of the CESTAT, Chennai, in the case of S. T. Enterprises [2021 (3) TMI 27 - CESTAT CHENNAI], the Hon'ble Tribunal has addressed the question whether by mere boiling and drying whole betel nut it would merit classification under 21069030 The Hon'ble Tribunal has held that since the import goods are betel nuts whole, these would merit classification under Chapter 8.
Thus, all the five goods placed before me for consideration, i.e., API supari, chikni supari, unflavoured supari, flavoured supari and boiled supari, merit classification under Chapter 8 of the First Schedule to the Customs Tariff Act, and more precisely, under the heading 0802. This is so in view of the fact that the processes to which raw green fresh betel nuts have been subjected to obtain the said five goods are squarely in the nature of processes mentioned in Note 3 to Chapter 8, and have not materially changed the essential character of betel nuts - Further, the said five goods are not classifiable under sub-heading 21069030, as contended by the applicant. since they have not attained the character of "preparations" of betel nut, which is sine qua non for a good to be so considered.
-
2021 (6) TMI 1146 - GAUHATI HIGH COURT
Prayer for vacation/modification and/or alteration of the interim order of stay passed on 19.11.2020 - fixation of tariff vis-a-vis entitlement as per the PPA - power to adjudicate and/or to refer any dispute for arbitration - Section 86(1)(f) of Electricity Act, 2003 - It is submitted that as a matter of abundant caution, the respondent no. 2 had approached this Court seeking permission to refer the matter to arbitration, which was permitted by this Court by the order dated 08.03.2017.
In light of the order dated 08.03.2017 passed by the coordinate Bench having attained finality whether and any interference with the impugned orders would have the effect of nullifying the said order? - HELD THAT:- There is nothing on record which shows that this Court had previously been called upon in W.P. (C) 4148/2016 and I.A. (C) 1784/2016 to decide whether the exercise of power under Section 86(1)(f) of the Electricity Act, 2003 was a adjudicatory function. Thus, in this case, the question of jurisdiction has been raised. Accordingly, the Court is of the considered opinion that as jurisdiction cannot be conferred by consent, notwithstanding that there was no objection by the petitioner when orders dated 20.07.2016 and 08.03.2017 were passed, notwithstanding that the said orders had attained finality, the question of jurisdiction can be entertained in this writ petition. Resultantly, the Court is of the considered opinion that interference, if any, with the impugned orders passed by the respondent no. 2 would not have the effect of nullifying the previous orders dated 20.07.2016 and 08.03.2017, as appointment or the Arbitral Tribunal, and rejection of petition for condonation of delay and resultant dismissal of the review petition were not the subject matter of challenge in the previous writ petition.
The question is answered in the negative and against the respondent no. 1 by holding that the instant order is not found to nullify the order dated 20.07.2016 passed in W.P. (C) 4148/2016 and order dated 08.03.2017 passed in I.A. (C) No. 1784/2016 in any manner whatsoever.
Whether the writ petition is barred under the principles of waiver, estoppel and acquiescence? - HELD THAT:- When orders dated 21.09.2018 and 06.10.2018 were passed by the respondent no. 2 Commission, the Supreme Court of India had already interpreted the scope of Section 86(1)(f) of the Electricity Act, 2003 in the case of Utility Users' Welfare Association [2018 (4) TMI 1945 - SUPREME COURT], that while exercising power under the said provision, the Commission was performing judicial function. Therefore, the petitioner has been able to demonstrate that in paragraph 116 of the case of Utility Users' Welfare Association - it has been held in the said case that "the absence of a member having knowledge of law would make the composition of the State Commission such as would make it incapable of performing the functions under Section 86(1)(f) of the said Act."
Under such circumstances, the Court is inclined to accept the submissions made by the learned counsel for the petitioner that in the light of the decision in the case of Utility Users' Welfare Association, the previous order dated 20.07.2016 passed in W.P. (C) 4148/2016 and order dated 08.03.2017 passed in I.A. (C) 1784/2016 would not constitute a binding precedent when orders dated 21.09.2018 and 06.10.2018 were passed by the respondent no. 2 Commission - The question is answered in the negative and in favour of the petitioner that the present writ petition is not barred under the principles of waiver, estoppel and acquiescence.
Whether the delay in making the challenge in fatal to the maintainability of the writ petition? - HELD THAT:- As the orders dated 21.09.2018 and 06.10.2018, suffer from the vice of coram non judice, the said orders are non est and therefore, under the facts unique to this case, the belated challenge by way of this writ petition is not found to be fatal to the instant writ petition.
Whether any adjudicatory process was involved in passing of the orders dated 21.09.2018 and 06.10.2018 by the respondent no. 2 Commission? - Whether the said two orders dated 21.09.2018 and 06.10.2018 along with the subsequent order dated 11.02.2020 passed by the respondent no. 2 Commission suffers from any jurisdictional error and warrants interference? - HELD THAT:- The Court is inclined to hold that adjudicatory process was indeed involved in passing of the orders dated 21.09.2018, 06.10.2018 and 11.02.2020 by the respondent no. 2 Commission. However, as there was no Judicial Member in the respondent no. 2 Commission, the said orders are found to be vitiated by principle of coram non judice - the said two orders dated 21.09.2018 and 06.10.2018 along with the subsequent order dated 11.02.2020 passed by the respondent no. 2 Commission suffers from any jurisdictional error and warrants interference by setting aside and quashing the said two orders.
Application disposed off.
-
2021 (6) TMI 1145 - ITAT KOLKATA
Addition u/s 69A - undisclosed and unexplained income of the assessee being Gold and Jewellery seized - presumption u/s 132(4A) r.w.s. 292C takes the AO to a conclusion that the gold in question belongs to the assessee, as it was seized from the assessee and as the assessee could not produce cogent material to rebut the aforesaid presumption the additions have been made - HELD THAT:- The original challans seized with the gold bullion and gold jewellery supported the claim of the assessee. In the statement recorded u/s 131 assessee reiterated this contention.
DDIT (Inv.), Kolkata and Investigation Wing at Chennai conducted verification with M/s. B.B. Jewellers and M/s Lalithaa Jewellery Mart Pvt. Ltd. The claim of the assessee has been supported and proved by the independent verification done by the Investigation Wing with the third party Jewellers in Chennai. Lack of distinctive identification numbers of the gold bullion on the challans seized, along with the gold from the assessee, was the grounds on which the AO made the addition - CIT(A) has rightly stated that this cannot be a basis of making this addition. Decided against revenue.
-
2021 (6) TMI 1144 - SECURITIES APPELLATE TRIBUNAL MUMBAI
Preferential allotments of shares - promoter related entities - price manipulation activities - LTCG in order to convert unaccounted income into accounted income with nil payment of tax as LTCG was exempt from tax -basis for holding the appellants guilty of Section 12A(a),(b) and (c) of the SEBI Act read with Regulation 3 and 4 PFUTP Regulations is, that a prudent investor would not have purchased the shares of a Company which had weak fundamentals and financials and that no one in their right mind would buy the shares unless there was a pre-existing arrangement of reaping in huge profits.
HELD THAT:- We are of the opinion that the role of the preferential allottees, exit providers and LTP contributors were far more serious than the role of the appellants. The role of the appellants in the instant case is, that they had purchased the shares off market from the six entities who in turn have purchased it from the promoter Company. Whereas, the preferential allottees have been let off, the appellants have been penalized only on the ground of being in proximity with the Company and its directors which finding is perverse in as much as we find that there is no direct connection of the appellants with the Company, its promoters, promoter company or noticees nos. 9 to 11, 75, 77 to 80 who were the main manipulators and the kingpin in the entire scheme.
The six entities are not promoter related entities. They have acquired the shares from the promoter Company but they do not become the promoters. The fact that they were de facto controlling the Company is not a relevant issue as it still does not make them promoters of the Company. Thus, merely because the appellants had purchased the shares through off market from the six entities does not and cannot lead to a conclusion that the appellants are connected with the Company or with noticee no. 9 or with promoter related entities or its directors. The finding that appellants were in close proximity or had a connection with the Company, directors etc. is patently erroneous.
The six entities had purchased the shares from a promoter Company, namely, noticees 15 to 19 and thereafter the six entities sold it to the appellants. Whereas the notices no. 15 to 19 have been exonerated by the impugned order, the appellants have been booked for having a close proximity with the Company. We find that the appellants have not purchased the shares from the Company.
The issue of weak fundamentals would equally apply to the preferential allottees who were allotted the shares at rate of Rs. 10/- per share but these preferential allottes have been let off. Therefore the standard of weak fundamentals cannot be applied in the case of the appellants especially when on the same footing the preferential allottees have been let off. We are of the opinion that it is business prudence to purchase at a lesser price and sell it at a higher price when the market is up thereby earning profits. Making profits in our opinion cannot be termed illegal or manipulative or fraudulent or violative of the PFUTP Regulations.
We are also find that the WTM has given a categorical finding that noticee no. 9 was the master mind who manipulated the price with Company and its directors and intermediaries for the benefit of the preferential allottees. These preferential allottees have been let off. We find that there is no direct connection of the appellants with noticee no. 9. There is no involvement of collusion or price manipulation of the appellants and thus there cannot be any violation of regulations 3 & 4 of the PFUTP Regulations.
Six entities had an active role to play in the management of the affairs of the Company from February / March - 2012 onwards. A direct connection has been established between the six entities and the Company and noticee no. 2. The six entities had also acquired the preferential shares of the promoters and therefore we are also of the opinion that the six entities were closely associated with the Company from February / March – 2012 onwards and throughout the period when the preferential allotments were made.
We are, thus, of the opinion that the six entities were closely connected with the Company and its directors and had a role to play in the formulation of the scheme of issuance of preferential allotment, pumping of the price through LTP contributors and providing an exit mechanism for the preferential allottee. Consequently, in our opinion, the order of the WTM insofar as the six entities are concerned does not suffer from any manifest error of law.
-
2021 (6) TMI 1143 - SC ORDER
Jurisdiction - levy of penalty - it was held by the High Court that it is clear and apparent that the impugned orders of penalty dated 30.1.2014, as contained in Annexure-12 to the writ applications, are actually the orders passed in review, in exercise of the powers under Section 9A (4) of the Act, read with Rules 14 (10 ) and (11) of the Rules, and these orders have been passed without any previous sanction in writing, of the Commissioner of Commercial Taxes, and have also been passed beyond the period of un-extendable limitation of one year.
HELD THAT:- There are no reason to interfere with the impugned judgment and order passed by the High Court.
SLP dismissed.
-
2021 (6) TMI 1142 - ITAT HYDERABAD
ESI/PF disallowance - Assessee’s and revenue’s plea that the same has been paid before the due date of filing sec. 139(1) return and after the due date prescribed in the corresponding statutes; respectively - HELD THAT:- Legislature has not only incorporated necessary amendments in Sections 36(va) as well as 43B vide Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 1.4.2021 only. It is further not an issue that the foregoing legislative amendments have proposed employer’s contribution; disallowance u/s 43B as against employee’s contribution u/s 36 (va) respectively.
Keeping in mind the fact that the same has been clarified to be applicable only with prospective effect from 1.4.2021, we hold that the impugned disallowance is not sustainable.
The impugned ESI/PF disallowance is directed to be deleted therefore. Decided in favour of assessee.
-
2021 (6) TMI 1141 - KARNATAKA HIGH COURT
Directing an investigation under Section 26(1) of the Competition Act, 2002 - contravention of Section 3(1) read with Section 3(4) and Section 4(1) and 4(2) of the Competition Act - nature of the impugned order passed under Section 26(1) of the Act - Administrative order or not - prior notice and opportunity of hearing is mandatory at the stage of issuing direction to the Director General to hold inquiry under Section 26(1) of the Act or not - HELD THAT:- An order under Section 26(1) of the Act passed by the Commission is an 'administrative direction' to one of its wings departmentally and without entering upon any adjudicatory process - Section 26(1) of the Act does not mention about issuance of any notice to any party before or at the time of formation of an opinion by the Commission on the basis of information received by it.
Whether the Commission has acted in consonance with the settled law? - HELD THAT:- In the case on hand, the informant has filed information and appended material papers, which according to the informant support its allegations. It was submitted by the learned Additional Solicitor General that the Commission has also called upon the informant to file a Certificate under Section 65B of the Indian Evidence Act and the penalty for incorrect information is upto Rs. One Crore under Section 44 of the Competition Act - It is expected that an order directing investigation be supported by 'some reasoning' which the Commission has fulfilled. Therefore, it would be unwise to prejudge the issues raised by the petitioners in these writ petitions at this stage and scuttle the investigation. Therefore, the impugned order does not call for any interference.
Petition dismissed.
-
2021 (6) TMI 1140 - SUPREME COURT
Partition of joint family property - Maintainability of application - whether Suit No. 1101 of 1997 filed by the plaintiff Somasundaram challenging the compromise decree dated 06.08.1984 was barred under Order XXIII Rule 3A? - compromise decree questioned by High Court - HELD THAT:- A party to a consent decree based on a compromise to challenge the compromise decree on the ground that the decree was not lawful, i.e., it was void or voidable has to approach the same court, which recorded the compromise and a separate suit challenging the consent decree has been held to be not maintainable. In Suit No.1101 of 1987, the plaintiff prayed for a declaration declaring that the decree passed in O.S. No. 37 of 1984 is sham and nominal, ultravires, collusive, unsustainable invalid, unenforceable and not binding on the plaintiffs - On the basis of grounds which have been taken by the plaintiff in Suit No.1101 of 1987, the only remedy available to the plaintiff was to approach the court in the same case and satisfy the court that compromise was not lawful. Rule 3A was specifically added by the amendment to bar separate suit to challenge the compromise decree which according to legislative intent to arrest the multiplicity of proceedings. We, thus, do not find any error in the judgment of trial court and High Court holding that Suit No.1101 of 1987 was barred under Order XXIII Rule 3A.
We having found that Suit No.1101 of 1987 being barred under Order XXIII Rule 3A, it is not necessary for us to enter into correctness or otherwise of the grounds taken in the plaint for questioning the compromise decree dated 06.08.1984. The compromise decree dated 06.08.1984, thus, could not have been questioned in Suit No. 1101 of 1987.
Partition of joint family of three branches - main plank of submission on behalf of respondent No.1 is that after the partition dated 07.11.1960, the three branches had separated and joint family status came to end - HELD THAT:- In Bhagwan Dayal Vs. Reoti Devi, [[1961 (9) TMI 90 - SUPREME COURT]], this Court examined the principles of Hindu Law and principles of Hindu Joint Family. In paragraph 16, it was held that the general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct.
It is the case of the defendant No.1 that the compromise decree dated 06.08.1984 is nothing but implementation of agreement dated 08.03.1981. It is, thus, clear that the case of D-1 is that there was partition of all properties standing in the names of three branches and allocated to different branches on 08.03.1981, which has been subsequently implemented by consent decree dated 06.08.1984. As per the case of defendant, the Vasudeva Textiles Mills was given to the branch of Rangasamy, property at Coonoor was taken by D-1 and properties at Somnur by D-4 - When the D-1 comes with the case that there was partition on 08.03.1981 of all immovable properties standing in the names of three branches, which was implemented on 06.08.1984, the conclusion is irresistible that family was joint and had the three branches were not part of joint Hindu family, there was no occasion for attempting any partition on 08.03.1981 as claimed by D-1. The fact that defendant No.1 is coming with the case that there was partition on 18.03.1981 itself proves that three branches were joint till then as per case of D-1 himself.
It is concluded that all three branches have equal share in the Tatabad residential property, i.e., Item No.X of Schedule 'B' of plaint in Original Suit No.1101 of 1987. This residential property being not a part of O.S.No.37 of 1984, there is no bar in seeking partition of the said property by the plaintiff. Accordingly we declare that plaintiff/defendant No.7, defendant No.1 and defendant No.4 are entitled to 1/3rd share jointly in the aforesaid Item No.X of Schedule 'B' of the suit property ( 1/3rd share each to K. Rangasamy branch, S.K. Kumarasamy branch and S.K. Chinnasamy branch). Accordingly, a preliminary decree for partition shall be drawn for the aforesaid property.
Civil appeal partly allowed.
-
2021 (6) TMI 1139 - GOVERNMENT OF INDIA
Duty drawback - demand on the grounds that the Applicant did not receive the export proceed against the 02 Shipping Bills within specified period and in the remaining Shipping Bills, the export proceeds were not realized in full - whether the recovery of proportionate drawback amount from the Applicant in respect of the remaining 174 Shipping Bills on account of shortfall in realization of export proceeds is valid?
HELD THAT:- Application has contended that export proceeds in respect of the remaining 174 Shipping Bills were fully realized, however, the Bank has deducted some amount on account of Bank charges. Government observes that the issue of Bank charges was also raised by the Applicant before the original authority but the same was not considered. Central Board of Indirect taxes & Customs, vide Circular No. 33/2019- Customs (issued vide F. No. 609/19/2019-DBK) dated 19.09.2019, has clarified that duty drawback is not recoverable where the export proceeds realized are short on account of bank charges deducted by foreign banks. The said instructions are clarificatory in nature. Thus, Government holds that the entire matter pertaining to the deduction of bank chargers and recovery of proportionate drawback amount corresponding thereto needs to be relooked.
It would be in the interest of justice that the matter is remanded back to the original authority with the direction to decide the matter afresh, on merits, as far as it pertains to the deduction of bank charges and recovery of proportionate drawback amount on account thereof, keeping in view the instructions contained in Board’s Circular dated 19.09.2019 - Revision application disposed off.
-
2021 (6) TMI 1138 - MADRAS HIGH COURT
Maintainability of petition - availability of appellate remedy - Validity of assessment order - erroneous application (exercise of Jurisdiction) of provisions of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- As far as the judgment of the Hon'ble Supreme Court of India in the case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT] is concerned, as rightly pointed out by the learned Government Advocate appearing on behalf of the respondents, the matter went to the Hon'ble Apex Court by way of regular appeal and the Hon'ble Supreme Court of India, while adjudicating the final orders passed by the Appellate Tribunal, formed an opinion that the issuance of show cause notice itself was by an improper authority. Thus, by citing the said finding, the appellate remedy otherwise provided under the Statute cannot be dispensed with, and in the event of accepting the said contention, in all such cases, every litigant will approach the High Court by way of writ petition bypassing the appellate remedy, which is not desirable and cannot be accepted.
Jurisdictional error should not result in exoneration of liability. Jurisdictional error, if any committed, is technical, and thus, rectifiable. In such circumstances, the Courts are expected to quash the order passed by an incompetent authority and remand the matter back for fresh adjudication. Contrarily, if an assessee is exonerated from liability, undoubtedly, the purpose and object of the Act is defeated.
The growing practice in the High Court is to file writ petitions under Article 226 of the Constitution of India without exhausting the statutory remedies provided under the Act. The points raised in this regard are statutory violations. However, even such statutory violations can be dealt with by the Appellate authorities or the Appellate Tribunals. This apart, in a writ petition, if such orders are passed with jurisdictional errors and quashed without any remand, then an injustice would be caused to the very spirit of the statute enacted for the benefit of the public at large. Thus, Courts are expected to be cautious, while granting exoneration of liability merely on the ground of jurisdictional errors, if any committed by the authorities competent - the authorities competent are not expected to commit such jurisdictional errors in a routine manner. In these circumstances, review of such orders by the higher authorities are imminent to form an opinion that there is willful or intentional act for commission of such jurisdictional errors, enabling the assesses to get exonerated from the liability. Liability and jurisdictional errors are distinct factors, and therefore, Courts are expected to provide an opportunity to the Department to decide the liability on merits and in accordance with law with reference to the provisions of the Act and Rules and guidelines issued by the Department.
Large number of writ petitions are filed without exhausting the statutory appeal remedies and High Court is also entertaining such writ petitions in a routine manner. Keeping such writ petitions pending for long time would cause prejudice to the interest of the assessee also. Thus, such statutory provisions regarding the appeal are to be decided at the first instance, enabling the litigants to avail the remedy by following the procedures as contemplated under law. Such writ petitions are filed may be on the ground of jurisdiction or otherwise. However, the Courts are expected to ensure that all such legal grounds available to the parties are adjudicated before the proper forum and only after exhausting the statutory remedies, writ petitions are to be entertained.
This Court has no hesitation in arriving a conclusion that the petitioners are bound to exhaust the statutory appellate remedy as contemplated under the provisions of the TNVAT Act. Thus, the petitioners are at liberty to approach the appellate authority by filing appeal/revision and by following the procedures contemplated. The delay, if any occurred, for filing the appeal, shall be condoned by the appellate authority and the appeal shall be taken on file to be adjudicated on merits and in accordance with law and by affording opportunity to all the parties concerned.
The writ petition disposed off.
-
2021 (6) TMI 1137 - KERALA HIGH COURT
Dishonour of Cheque - insufficiency of funds - legally enforceable debt - discharge of burden of prove - rebuttal of presumption under Sections 118 and 139 of the N.I. Act - whether an authorised signatory of a company or firm would be liable for prosecution under S. 138 of the N.I. Act without the company being arrayed as an accused? - HELD THAT:- The liability of the revision petitioner is only statutory because of his legal status as the Managing Partner of the firm. Every person signing the cheque on behalf of the firm/company on whose account a cheque is drawn does not become the drawer of the cheque. Such a signatory is only a person duly authorised to sigh the cheque on behalf of the firm/company.
It is clear from Section 138 of the N.I. Act that in spite of the demand notice referred to above, the drawer of the cheque failed to make payment within 15 days from the date of receipt of notice. Admittedly, no notice was issued to the firm as contemplated under the Act before lodging the complaint - Hence the firm cannot be held liable at this stage. Since no statutory notice was issued against the firm within the time prescribed, the respondent has no sufficient cause for invoking the jurisdiction of this court to implead the firm as an accused in exercise of powers under Section 142 of the N.I. Act.
There can be no vicarious liability unless there is a prosecution against the firm. The vicarious liability gets attracted when the condition precedent laid down in Section 141 of the N.I. Act can satisfy. Thus, it can be safely concluded that if the prosecution proceedings against the firm were not taken by the complainant for the offence under Section 138 of the N.I. Act, it is certainly a bar for proceeding against the other person coming within the ambit of sub-sections (1) and (2) of Section 141 of the N.I. Act. In view of the above reasoning and discussion, the conviction and sentence concurrently passed by the two courts below are contrary to the dictum laid down by the Apex Court in Aneeta Hada [2012 (5) TMI 83 - SUPREME COURT] and, therefore, cannot be sustained. The conviction and sentence are, accordingly, set aside.
The conviction and sentence are, accordingly, set aside. The Crl.R.P. is allowed. The revision Petitioner is found not guilty of the offence under Section 138 of the N.I. Act and he is acquitted of the said offence.
-
2021 (6) TMI 1136 - ITAT BANGALORE
TP Adjustment - comparable selection - Functional dissimilarity - HELD THAT:- Companies need to be rejected as comparable as functionally not comparable with captive service provider like assessee - we direct Infosys BPO to be excluded from the list of comparables and remand Universal Paint to Ld.AO/TPO for fresh consideration.
TCS e-Serve Ltd - company is into high-end KPO services and an assessee rendering low end BPO services cannot be compared with it. Further, this company has been excluded due to absence of segmental information - we direct Ld.TPO to exclude this company from the list of comparables.
BNR Udyog Ltd. (segmental) - As observed from annual report placed this company has segmental information of medical transcription and revenue earned under this segment is Rs.147.40 Lacs. It is also been observed that various other decisions by co-ordinate Benches of this Tribunal has remanded this comparable back to Ld.TPO, for proper analysis and fresh consideration. See Indegene (P) Ltd vs ACIT [2017 (8) TMI 1576 - ITAT BANGALORE] Thus we set aside this comparable back to Ld.TPO for considering it afresh.
Excel Infoways Ltd. (segmental) - Objection raised by Ld.CIT DR stands clarified, as this company for year under consideration made a statement under 133 (6) regarding allocating entire employee cost to IT-BPO segment, with no allocation to other segment, which amounts to almost 49% of its total revenue during the year under consideration - We therefore agree with contention raised by assessee regarding this comparable not satisfying employee cost filter.
Acropetal Technologies Ltd - We direct the Ld.AO/TPO to correct the margins in respect of Acropetal Technologies Ltd.
Consider Accentia Technologies Ltd., Informed Technologies Ltd., and Jindal Intellicon Ltd., these comparables in the final list of comparables in accordance with law.
Computing negative working capital adjustment - We find that in the case of Lam Research India (P.) Ltd. [2021 (2) TMI 183 - ITAT BANGALORE] and Software AG Bangalore Technologies (P.) Ltd. [2016 (3) TMI 1384 - ITAT BANGALORE] passed by this Tribunal, it has been held that negative working capital adjustment shall not be made in case of a captive service provider as there is no risk and it is compensated on a total cost plus basis. We therefore direct Ld.TPO to compute the ALP in accordance with the directions contained in this order
-
2021 (6) TMI 1135 - ITAT HYDERABAD
Dismissal of appeal by CIT-A as non effective - CIT-A held appeal filed by the appellant as not maintainable - applicability of the provisions of section 249(4)(b) - CIT (A) ought to have given the assessee an opportunity to explain her case - Whether Commissioner of Income-Tax (Appeals) erred in holding that the appellant is liable to pay any advance tax and that there was failure as mentioned in Sec.249(4)(b) - HELD THAT:- We find that the provisions of section 249(4)(b) are applicable to the case on hand since the assessee has not filed the return of income, nor has paid the advance tax payable by her. Therefore, she ought to have filed an application under the proviso to section 249(4)(b) of the Act for exemption from the application of section 249(4)(b) of the Act. In such circumstances, The CIT (A) had no choice but to dismiss the appeal as it was defective.
Purely in the interest of justice and taking the prayer of the assessee into consideration, we set aside the issue to the file of the CIT (A) with a direction to the assessee to file the application under the proviso to section 249(4)(b) of the Act within a period of one month from the date of receipt of this order and thereafter, the CIT (A) shall dispose of such application of the assessee and decide on the issue of exemption from the application of the provisions of section 249(4)(b) and thereafter, the CIT (A) shall also decide the appeal on merits. Needless to mention that the assessee shall be given a fair opportunity of hearing. Assessee’s appeal is treated as allowed for statistical purposes.
-
2021 (6) TMI 1134 - ITAT BANGALORE
TP Adjustment - MAM selection - authorities below while adopting the TNMM Method by making an adjustment u/s. 92CA of the Act on the whole Operating Cost incurred by the eligible Assessee - HELD THAT:- The contention of the assessee is primarily acceptable and the decision cited by the learned AR in respect of the assessee’s contention is supportive of such conclusion. However, the learned DRP has given a finding that the figures as given by the assessee needs to be verified. According to the DRP, the assesseee has not maintained separate segmental details and the claim has been based only on internal reports without any certificate from the auditor.
In such an event the DRP should have called upon the Assessee to furnish the required details. When in principle adjustment cannot be made in respect of transaction with unrelated parties u/s.92 of the Act, the DRP should have called for the required details, rather than not adjudicating even on the principle. We are therefore of the view that in principle we agree to the proposition put forward by the assessee in ground No.6. We, however, remand the issue to the AO/TPO to call upon the assessee to given the correct figures based on certificate from the auditor and thereafter make adjustment in respect of ALP only in respect of transactions with AE. Thus, the ground of appeal is treated as allowed for statistical purposes.
Computing the arm's length price of the international transactions - TPO treating the Exchange fluctuation gain as non-operating in nature and excluded the same from computation of Operating margins of the eligible Assessee while computing the arm's length price of the international transactions - HELD THAT:- Foreign exchange has been treated as the part of the operating profits, if they are integral to the process of the export of the software or if they arise out of operating income of the assessee. In view of the aforesaid decision SAP LABS INDIA (P.) LTD. [2010 (8) TMI 676 - ITAT, BANGALORE], ELECTRONICS FOR IMAGING INDIA PVT. LTD. [2016 (2) TMI 1123 - ITAT BANGALORE] AND M/S. KHF COMPONENTS PVT. LTD. [2016 (7) TMI 811 - ITAT BANGALORE] we are of the view that the foreign exchange gain has to be treated as part of the operating profit of the assessee. We hold and direct accordingly.
-
2021 (6) TMI 1133 - ITAT BANGALORE
TP Adjustment - Comparable selection - HELD THAT:- Companies functionally dissimilar with that of assessee need to be deselected from final list on the basis of turnover and size.
Negative working capital - We find that in the case of Software AG Bangalore Technologies (P.) Ltd. [2016 (3) TMI 1384 - ITAT BANGALORE] passed by this Tribunal, it has been held that negative working capital adjustment shall not be made in case of a captive service provider as there is no risk and it is compensated on a total cost plus basis. We therefore direct Ld.TPO to compute the ALP in accordance with the directions contained in this order after affording assessee opportunity of being heard.
Disallowance of deduction of ESOP expenses - HELD THAT:- We hold it to be revenue expenditure, eligible to be allowed under section 37.
........
|
