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Showing 41 to 60 of 744 Records
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2020 (5) TMI 704 - ITAT DELHI
TP Adjustment to the transaction of software development services - exclusion of comparable namely M/s Infosys Ltd. - HELD THAT:- Respectfully, following the view taken by the Coordinate bench in assessment year 2008-09, we direct the Ld AO/TPO to exclude M/s Infosys Technologies Ltd. from the final set of the comparables. The ground No. 1 to 10 of the appeal of the assessee are accordingly allowed.
TDS u/s 195 - Disallowance of the export commission on account of non-deduction of the tax at source - disallowance u/s 40(a)(i) - AO concluded that there existed a business connection between G&D Egypt and G & D India - HELD THAT:-
We find that for having business connection in India the business operations carried out side India and inside India must have relationship as to contribute the business operations as a whole.
In the instant case, M/s GD Egypt is responsible for marketing and sales for assessee in the region of middle east and north Africa and has procured sales for the assessee. The business operation of the M/s GD Egypt of procuring sales order for the assessee and its entire activity has been carried out from outside India and no part of the business activity has been carried out in the India by M/s GD Egypt. The business connection has to be looked into the business operations of M/s GD Egypt in India and not business connection between the operation of the GD Egpyt and business of the assessee in India, because any workfor which the assessee is making payment will always be associated and part of the business of the assessee. Obviously, in the instant case no business connection exist and thus the finding of the learned DRP on the issue is set aside.
DRP has held that the services rendered by M/s GD Egypt require expertise and knowledge in the specific area of work and such expertise cannot be developed overnight, but it is the result of long period of the work in this line of activities coupled with accumulated experience of operations and therefore the payment made by the assessee to GD Egypt partakes the character of the FTS under domestic law.
In the instant case, the assessee has not invoked any Double Taxation Avoidance Agreement (DTAA) and therefore we are examining only the FTS under domestic law - As decided in M/S. EVERGREEN INTERNATIONAL LTD. [2018 (4) TMI 81 - ITAT DELHI] payment made for procuring of export sale order for Indian taxpayer by any foreign entities from outside India cannot be held as Fee for Technical Services.
In view of holding that payment for services of GD Egypt are not in the nature of Fee for Technical Services (FTS) , the other finding of the learned DRP of the applicability of explanation below section 9(2) i.e. there is no requirement of rendering services in India for income deemed to accrue or arise in India as per section 9(1)(vii) of the act, are rendered merely academic, and we are not required to examine applicability of the same in the year under consideration.
The payment made by the assessee is not chargeable under the provisions of the Act in the hands of GD Egypt, no tax is required to be deducted in terms of section 195 of the Act and consequently no disallowance could be made under section 40(a)(i) of the Act for non-deduction of the tax at source.- Decided in favour of assessee.
Disallowance of bad debt written off - HELD THAT:- No documentary evidence in support of the claim that income pertaining to such write off had been offered to tax as required under the provisions of the Act. In view of the above circumstances, we feel it appropriate to restore this issue back to the file of the learned Assessing Officer with the direction to the assessee to produce all necessary documents in support of its claim before the Assessing Officer, who then will decide the issue in accordance with law. It is needless to mention that the assessee shall be afforded adequate opportunity of being heard.
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2020 (5) TMI 703 - NATIONAL COMPANY LAW TRIBUNAL, SPECIAL BENCH, CHENNAI
Violation of Section 14 of the Insolvency and Bankruptcy Code, 2016 during the moratorium period by one of the Financial Creditors (Punjab National Bank) - Financial Creditors (Punjab National Bank) is holding voting share of 0.58% in the CoC - HELD THAT:- Upon perusing the material and documents placed before this Bench, it is seen that the Respondent-Financial Creditor (Punjab National Bank) admits that an amount of ₹ 1.87 crores lying in the CC account (as on 22.05.2019) was further debited for the LC payment; during the CIRP period, the Respondent-Bank issued fresh LC of ₹ 2,38,46,467/- on 01.06.2019 considering the urgency of business commitment of Corporate Debtor Company after obtaining approval from the IRP. It is pertinent to mention here that in the 4th CoC meeting held on 07.0 1.2020, the members from SBI (consortium of Banks) holding 32,59% voting share pointed out that the issue relates to accounting treatment, the amount as claimed by the Applicant/Corporate Debtor could be reversed with the approval of appropriate authority.
The Respondent-Bank has, in violation of the provisions under Section 14 of the IBC, unilaterally appropriated the amount due on LCs which is an amount distributable among all creditors after the conclusion of CIRP. (details of dates of LC and date if appropriate of the amount are given in Page.28 of the application). Further, no records could be found to ensure that the Respondent Bank has included the claim of LC in the outstanding credit prior to CIRP.
The Respondent-Bank (Punjab National Bank) is required to credit to the Corporate Debtor’s Account the amount of ₹ 17,95,04,271.79 (₹ 1,87,39,588.90 presently operated by the RP; ₹ 14,57,64,682,89 from the LC honored before CIRP and appropriated after CIRP and also GST refund of ₹ 1,50,000/- received during the CIRP period) which were meant to settle the liability on account of the LCs opened during pre-CIRP period.
Application is allowed to the extent of amounts debited to the Corporate Debtor’s account during the CIRP for having honored pre-CIRP LCs opened by the Corporate Debtor.
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2020 (5) TMI 702 - SUPREME COURT
Murder - two sadhus were brutally killed by a mob, allegedly in the presence of the police and forest guard personnel - offence under 153, 153A, 153B, 295A, 298, 500, 504 and 506 of the Indian Penal Code - HELD THAT:- The fundamental basis on which the jurisdiction of this Court has been invoked Under Article 32 is the filing of multiple FIRs and complaints in various States arising from the same cause of action. The cause of action was founded on a programme which was telecast on R Bharat on 21 April 2020. FIRs and criminal complaints were lodged against the Petitioner in the States of Maharashtra, Rajasthan, Madhya Pradesh, Telangana and Jharkhand besides the Union Territories of Jammu and Kashmir.
In the present case, all the FIRs or complaints which have been lodged in diverse jurisdictions arise out of one and the same incident-the broadcast by the Petitioner on 21 April 2020 on R Bharat. The broadcast is the foundation of the allegation that offences have been committed under the provisions of Sections 153, 153A, 153B, 295A, 298, 500, 504 and 506 of the Indian Penal Code - The manner in which the Petitioner has been subjected to numerous FIRs in several States, besides the Union Territories of Jammu and Kashmir on the basis of identical allegations arising out of the same television show would leave no manner of doubt that the intervention of this Court is necessary to protect the rights of the Petitioner as a citizen and as a journalist to fair treatment (guaranteed by Article 14) and the liberty to conduct an independent portrayal of views. In such a situation to require the Petitioner to approach the respective High Courts having jurisdiction for quashing would result into a multiplicity of proceedings and unnecessary harassment to the Petitioner, who is a journalist.
The transfer of an investigation to the CBI is not a matter of routine. The precedents of this Court emphasise that this is an "extraordinary power" to be used "sparingly" and "in exceptional circumstances" - The principle of law that emerges from the precedents of this Court is that the power to transfer an investigation must be used "sparingly" and only "in exceptional circumstances". In assessing the plea urged by the Petitioner that the investigation must be transferred to the CBI, we are guided by the parameters laid down by this Court for the exercise of that extraordinary power. It is necessary to address the grounds on which the Petitioner seeks a transfer of the investigation.
The contention of the Petitioner that the length of the investigation or the nature of the questions addressed to him and the CFO during the interrogation must weigh in transferring the investigation cannot be accepted. The investigating agency is entitled to determine the nature of the questions and the period of questioning - the allegation of the Petitioner that there is a conflict of interest arising out of the criticism by him of the alleged failure of the State government to adequately probe the incident at Palghar is not valid. The investigation of the Palghar incident is beyond the territorial jurisdiction of the Mumbai police.
The interview given by the complainant to a representative of R Bharat does not furnish a valid basis in law for an inference that the investigation is tainted or as warranting a transfer of investigation to the CBI. The Government of Maharashtra has moved an application before this Court (affirmed by the DCP, Zone-3) seeking appropriate directions to insulate the investigating agency "from any pressure, threat or coercion from the Petitioner" and to enable it to discharge its lawful duties in a fair and transparent manner - The investigating agency has placed on the record what it believes is an attempt by the Petitioner to discredit the investigation by taking recourse to the social media and by utilizing the news channels which he operates. Social media has become an overarching presence in society.
An individual under investigation has a legitimate expectation of a fair process which accords with law. The displeasure of an Accused person about the manner in which the investigation proceeds or an unsubstantiated allegation (as in the present case) of a conflict of interest against the police conducting the investigation must not derail the legitimate course of law and warrant the invocation of the extraordinary power of this Court to transfer an investigation to the CBI. Courts assume the extraordinary jurisdiction to transfer an investigation in exceptional situations to ensure that the sanctity of the administration of criminal justice is preserved - Petition disposed off.
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2020 (5) TMI 701 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI
Seeking restoration of name of the company in the register of ROC - Section 252 of the Companies Act, 2013 - HELD THAT:- Upon perusal of the Income Tax acknowledgement which is filed along with the petition, would prove the fact that eventhough the Company has been active during the period under scrutiny filing returns with Income Tax, however had failed to file the same with the Respondent of any statutory retunes. Further from the documents submitted by the Appellant, it is evident upon its bare perusal which would prove that the company was not doing any business and remains to be dormant - after conscientious perusal of the documents filed by the Applicant Company, this Tribunal is satisfied that the Applicant Company is not carrying on its business during the time when the Company was struck off from the Register maintained by the Respondent and also no cogent reasons or any documents are produced before this Tribunal in order to substantiate that the Company was carrying on its business or it is just to revive/restore the name of the Company to the Register as maintained by the Respondent.
Application dismissed.
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2020 (5) TMI 700 - SUPREME COURT
Seeking direction to the Appellant-Bank to pay his lawful admitted claims in terms of agreement - seeking also to deposit the income-tax papers with immediate effect - HELD THAT:- The case set up by the Respondent No. 1 in the writ petition is neither an admitted position nor is it possible to even remotely suggest that it is indisputable, so as to bind the Appellant-Bank on that basis. Moreover, from the narration of facts, it is more than clear that it would involve scrutiny of complex matters and issues including about the existence of the very agreement, which is the foundational evidence for seeking relief as prayed in the writ petition. In that, the genuineness and existence of the stated agreement has been put in issue by the Appellant-Bank and which is made good on the basis of affidavits of concerned Bank officials and even supported by the report of the District Magistrate referred to in his affidavit dated 5.5.2016.
In the facts of the present case, the High Court should have been loath to entertain the writ petition filed by the Respondent No. 1 and should have relegated the Respondent No. 1 to appropriate remedy for adjudication of all contentious issues between the parties.
Appeal allowed.
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2020 (5) TMI 699 - RAJASTHAN HIGH COURT
Seeking grant of bail - as per Section 12 of Juvenile Justice Act, 2015, the Board is not required to mechanically release a juvenile or grant him bail as a matter of course, merely because the accused before it is a juvenile - HELD THAT:- There is no reason or material to interfere with the finding recorded by the Board and affirmed by the appellate Court, holding that if the present petitioner – a child in conflict with law is released, there is every likelihood that he will mingle in the company of violators of law and prodded or prompted to commit similar offences - As per the scheme of the JJ Act, more particularly Section 12 thereof, a child in conflict with law is to be given benefit of bail. Such benefit can be denied only upon recording a finding that there appears reasonable belief that such release is likely to bring the person into association of any known criminal or expose him to more physical or psychological danger.
There is no gainsaying the fact that two more cases of like nature are pending against him. Considering the nature of allegation against the petitioner, the Board and appellate Court were justified in concluding that if he is handed over to the guardian or released on bail, he is likely to go in company or in association of known criminals and the same would expose him to crimes of like nature - It is more or less trite that in case charge-sheet is not filed within 60 days or 90 days, as the case may be, an accused is entitled for bail by virtue of first proviso to sub-section (2) of Section 167 the Code.
The government has come out with the taxation and other laws (Relaxation of Certain Provision) Ordinance, 2020. By virtue of the provisions contained in this Ordinance, the limitation or outer limit for compliance or actions/orders under various enactments has been extended. Concededly, no amendment has been introduced in the Code, particularly in Section 167(2) - In absence of any amendment in the statute and without there being any remote reference of investigation or provisions of the Code in the order of Supreme Court, taking shield of the Supreme Court’s order to take away the vested right of an accused, is nothing short of violating his right of liberty guaranteed under Article 21 of the Constitution.
It is directed that the petitioner – Pankaj S/o Late Lalshankar Meena shall be released on bail on furnishing a personal bond by his natural guardian Ramesh S/o Dhanji Meena (Uncle) in the sum of ₹ 50,000/- and two sureties of ₹ 25,000/- each to the satisfaction of the Juvenile Justice Board, Udaipur with the stipulation that on all subsequent dates of hearing he shall produce the petitioner before the said Board or any other Court during pendency of the inquiry in the case and that his guardian shall keep proper look after of the petitioner and keep him away from the company of known criminals - revision allowed.
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2020 (5) TMI 698 - KERALA HIGH COURT
Seeking grant of Bail - time limitation - due to lockdown imposed consequent to SARS COVID 19 Pandemic, the investigating officer was not in a position to submit the final report within the statutory period - HELD THAT:- Coming to the object and scope of Section 167 it is well settled that it is supplementary to Section 57 of the Code. Section 57 of the Code provides that the investigation should be completed in the first instance within 24 hours; if not the arrested person should be brought by the police before a Magistrate as provided under Section 167. Such Magistrate may or may not have jurisdiction to try the case. The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody, i.e. either police or judicial from time to time but the total period of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa.
The significance of the period of 60 days or 90 days, as the case may be , is that if the investigation is not completed within that period then the accused, who is in custody, is entitled to “default bail” if no charge-sheet or challan is filed on the 60th or 90th day as the case may be, subject of course, to the condition that the accused applies for “default bail” and is prepared to and does furnish bail for release.
In the case on hand, the petitioner herein was remanded to judicial custody on 17.1.2020. The period of 90 days had expired on 16.4.2020. His bail application was taken up for consideration by the learned Special Judge on 6.5.2020. It is clear from the order that even on that day, the final report had not been submitted before the jurisdictional court. In the light of the above settled precedents, the petitioner has to be held entitled to the grant of default bail. The situation would not change even if after the dismissal of the application by the Special Judge, the final report was laid.
Whether the period for submitting the final report can be taken to be extended as contended by the learned Public Prosecutor? - HELD THAT:- If Section 167 of the Cr.P.C. is analysed, it is luculent that the said provision does not provide any outer limit for the period of completion of investigation. It only interdicts the Magistrate from authorising detention of the accused person other than in the custody of the police for the statutory period. However, the police can continue with the investigation and take their own sweet time to conclude the same and file a final report. This provision is unlike Section 468 of the Cr.P.C., which provides for limitations for taking cognizance of certain offences - Right of personal liberty is not only a legal right but it is a human right which is inherent in every citizen of any civilized society. Article 21 only recognizes this right. Section 57 and 167 are the provisions in the Code which provides for procedure established by law which curtails this right. Such provisions which provide for the procedure to keep an accused under prolonged incarceration will have to be interpreted keeping in mind the constitutional rights of the accused.
Default bail is granted to the petitioner - petitioner shall be released on bail on his executing a bond for ₹ 50,000/- with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction - application allowed.
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2020 (5) TMI 697 - UTTARAKHAND HIGH COURT
Grant of Default Bail - denial of bail relying on the decision in IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION [2020 (5) TMI 418 - SC ORDER] - Extension of period of limitation prescribed under the general law or Special Laws - prevailing Covid-19 Virus pandemic situation in India - HELD THAT:- On 06.05.2020, the Hon’ble Supreme Court had passed an Order in the very same Suo Motu Writ Petition IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION [2020 (5) TMI 418 - SC ORDER] and extended the limitation period for statutory provisions under Section 138 of the Negotiable Instruments Act and the Arbitration and Conciliation Act with effect from March 15, 2020 till further order - The Hon’ble Supreme Court has not mentioned in the said Orders that investigation will be covered under these Orders. The Orders of the Hon’ble Supreme Court are binding on all the courts including High Courts. No court has the right to interpret the Orders passed by the Hon’ble Apex Court. Therefore, the police investigation is not covered under the Orders of the Hon’ble Supreme Court.
Personal liberty of the individual, guaranteed under Article 21 of the Constitution of India, is very precious fundamental right and it should be curtailed only according to law - It is admitted fact between the parties that the investigation is going on and the applicant is in judicial custody since 23.01.2020.
This Court is of the view that the applicant is entitled for default bail - let the applicant be released on bail on his executing a personal bond and furnishing two reliable sureties, each in the like amount, to the satisfaction of the court concerned subject to the conditions imposed.
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2020 (5) TMI 696 - RAJASTHAN HIGH COURT
Seeking to incorporate directions in the SOP for jails for the purpose of the present COVID pandemic - HELD THAT:- For ascertaining whether the directions/suggestions are being complied with or not and to what extent, we direct the committees to be formed consisting of the (i) Secretary, DLSA or TLSA, (ii) CMHO and/or its representative and (iii) President or Secretary of the local Bar Association. This team shall visit each jail within their respective districts, Central Jail/District Jail/ Sub Jail and they shall check and verify the status of each jail vis-a-vis parameters set up by the Union of India, the State of Rajasthan as well as in the publication made by the RSLSA, in particular all suggestions regarding public health within the jail premises. Such committees formed for each jail i.e. Central Jail, District Jail and/or Sub Jail, shall visit in their respective districts/Sub Division and reports by them regarding status, shall be submitted before the Member Secretary, RSLSA on or before 22.05.2020.
The Member Secretary, RSLSA and Ms. Smita Chakraborty are requested to collate all such reports and present the same in a concise manner with their suggestions, if any, before this Court by 26.05.2020 with copies to the learned Advocate General, Additional Chief Secretary (Home) and Director General (Prisons), Rajasthan - The matter shall be next listed on 27.05.2020.
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2020 (5) TMI 695 - ITAT MUMBAI
Estimation of income - Bogus purchases - CIT(A) has sustained the addition made by the AO on estimating @ 16% of the alleged bogus purchases - HELD THAT:- ITAT Mumbai Bench in the case of Heeramaneck & Son [2018 (12) TMI 1830 - ITAT MUMBAI] complete onus to prove the purchases conclusively was on assessee, which has remained un-discharged. In such a scenario, the addition, which could be made, was to account for profit element embedded in these purchase transactions to factorize for profit element earned by assessee against possible purchase of material in the grey market and undue benefit of VAT against alleged bogus purchases, which lower authorities have rightly done. However, considering GP rate of 10.59% already reflected by the assessee as well as VAT rate applicable to the goods being dealt with by the assessee, we find the estimation to be on the higher side and therefore, we restrict the same to 3% of alleged bogus purchases.
Thus as assessee has already declared GP ratio from the purchases made from Om Corporation and others respectively. We notice from the financial statement that assessee has declared GP of 15.60% and we do not know how much GP, assessee has earned out of the disputed purchases. Therefore, we are inclined to direct the AO to estimate the income @ 3% of the alleged purchases. Accordingly, we direct the AO to estimate the income of the assessee @ 3% of the alleged purchases. - Decided partly in favour of assessee.
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2020 (5) TMI 694 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
Liquidation of the Corporate Debtor - Section 33 (2) of the IBC, 2016 - HELD THAT:- Taking into consideration the provisions of Section 33 of IBC,2016 and in the absence of any opposition to the Application from the Promoters of the Corporate Debtor and also guided by the decision of the Hon’ble Supreme Court in the matter of Mr. K. Sasidharan -Vs-- Indian Overseas Bank [2019 (2) TMI 1043 - SUPREME COURT], this Tribunal orders for the liquidation of the Corporate Debtor.
Mr. K.C.Senthilkumar is appointed as the Liquidator of the Corporate Debtor to carry out the liquidation process subject to the terms of the directions imposed - application allowed.
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2020 (5) TMI 693 - ITAT MUMBAI
Penalty u/s 271(1)(c) - Defective notice u/s 274 - non striking off the irrelevant/ inapplicable portion on the standard format - whether penalty proceedings were to be initiated for furnishing of inaccurate particulars of income or concealment of income? - HELD THAT:- AO had issued the notice u/s 274 r.w.s. 271 (1) (c) of the Act without striking off the irrelevant/ inapplicable portion on the standard format. As pointed out by the Ld. counsel, the AO can initiate penalty proceedings against the assessee once he is satisfied that there is concealment of income or furnishing of inaccurate particulars of income or both - as held in the case of CIT vs. Samson Perinchery [2017 (1) TMI 1292 - BOMBAY HIGH COURT] that concealment of income and furnishing inaccurate particulars of income carry different connotations, therefore, the order imposing penalty has to be made only on ground on which penalty proceedings have been initiated
Since the AO has issued the notice u/s 274 r.w.s. 271 of the Act in a mechanical manner without striking off the inapplicable portion of the notice printed on standard format, the impugned order passed by the Ld. CIT(A) is not sustainable in law. Hence, we find merit in the contention of the Ld. counsel - Decided in favour of assessee.
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2020 (5) TMI 692 - MADRAS HIGH COURT
Grant of default bail - Robbery of Gold chain - entitlement to default bail when final report has not been filed within the mandatory time limit - HELD THAT:- It has been held in Achpal v. State of Rajasthan [2018 (9) TMI 1863 - SUPREME COURT] that the provisions of the Code do not empower any one to extend the period within which the investigation must be completed. If on the expiry of the period aforesaid mentioned, the accused applies for bail and is ready to furnish sureties, an indefeasible right would accrue in his favour - The Hon'ble Supreme Court taking note of the extraordinary situation obtaining in the country has ordered as mentioned above that the period of limitation shall stand extended until further orders. This was to obviate the difficulties faced by the litigants and to ensure that they and their lawyers do not have to come physically to file in the respective Courts and Tribunals. The Hon'ble Supreme Court has not mentioned that police investigations would also be covered by the said order.
The limitation barrier prescribed for institution of suits is impregnable and cannot be breached. However, Section 5 of the Limitation Act provides for extension of prescribed period in certain cases. If Section 5 of the Limitation Act is not excluded either expressly or by implication, the power to condone delay in filing the appeal or application can always be invoked. The special laws also contain special periods of limitation with or without power to condone delay - The expiry of the period results in accrual of right in favour of the accused. Even though this time limit is referred to as period of limitation, technically it is not. It is only Chapter XXXVI of Cr.Pc that deals with limitation for taking cognizance of certain offences. Even Section 167 (5) of Cr.Pc has been interpreted to mean that the magistrate shall only make a direction for stopping further investigation in a summons case if it is not concluded within the period of six months and the said period has not been extended and it does not bar the magistrate from taking cognizance based on the final report filed thereafter. Hence, Section 167 of Cr.PC cannot be construed as containing the period of limitation for filing of final reports.
Personal liberty is too precious a fundamental right. Article 21 states that no person shall be deprived of his personal liberty except according to procedure established by law - the prosecution has a right to apply for extension of time.
The petitioner is entitled to default bail - Petition allowed.
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2020 (5) TMI 691 - KERALA HIGH COURT
Denial of Predominance over the statutory charge due to Government - Whether a secured creditor can claim priority for sale and payment over statutory charge holders, due under State enactment? - SARFAESI Act and the RDB Act - HELD THAT:- The SARFAESI Act and the RDB Act are Central enactments while the KVAT Act is a State enactment. The effect of inconsistency between a Central enactment and State enactment is resolved by recourse to Art. 254(1) and Art. 246 of the Constitution of India. Art. 254(1) deals with the Parliamentary supremacy in matters in which Parliament is competent to enact. Competence to enact a law is as specified under Art. 246. Supremacy of Parliament will be maintained irrespective of any conflict between matters in which both Centre and the State can enact on a subject matter - as per Article 254, the Central law will prevail, subject of course to the provisions in Art. 254(2). If a provision of law contained in the Concurrent list is made by the State legislature and receives assent of the President, then such a State enactment will prevail. The intention of the Constitution makers is evident that there must be uniform application of laws throughout the territory of India and in the event of any inconsistency between the Central law and the State law, the former alone shall be operative.
When the inconsistency between the provisions of a Central Act and a State Act is of such a nature that they come into direct collision with each other, and it is impossible to comply with one without disobeying the other, a clear case of repugnancy arises. Repugnancy may also arise between the two enactments, even though obedience to each of them is possible without disobeying the other, if the competent Legislature of superior efficacy, expressly or impliedly evinces by the legislation, a clear intention to cover the whole field - it can safely be concluded that the provisions of SARFAESI Act and RDB Act (as amended) containing provisions commencing with non-obstante clauses and giving specific priority to secured creditors even over the taxes due from the Governments, will prevail over the KVAT Act.
The sale carried out either under the SARFAESI Act or under the RDB Act takes precedence over the statutory charges due to the Government created under KVAT Act or under other State Enactments after the Amendment Act of 2016. A secured creditor in whose favour a security interest has been created thus has priority in sale and payment over all other statutory charge holders.
The 2nd respondent Sub Registrar, Kottarakkara is directed to register the original of Annexure-A4 sale certificate as and when the same is presented for registration - Application allowed.
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2020 (5) TMI 690 - ITAT BANGALORE
Addition relating to suppression of fee receipts of Management/NRI quota - addition based on document seized from the residence of the Chairman Shri P L Nanjundaswamy - contention of the assessee is that it is not aware of existence of any such document and accordingly it has disowned the same - HELD THAT:- In the instant case, the AO’s case is that the assessee has suppressed the fees received by it for giving admission under management/NRI quota. AO did not accept the explanations of the assessee in this regard. However, he did not bring any material on record to show that the assessee, indeed, collected fees over and above that were accounted for in the books of account. AO did not reveal/discuss the result of enquiry conducted by him by issuing notices u/s 133(6) of the Act. Hence the assessee has contended that the assessing officer did not receive any adverse reply from the students. Even though the AO has observed that huge cash was seized during the course of search, yet it was shown by the assessee that all those cash are accounted for in the books of accounts.
As noticed that the Ld CIT(A) has agreed with the inferences drawn by the AO. The discussions made in the preceding paragraph would also show that the assessing officer has only drawn certain inferences on surmises and conjectures. Hence we are unable to sustain the view taken by Ld CIT(A) on this issue. Accordingly, we set aside the order passed by Ld CIT(A) on this issue and direct the AO to delete the addition made in AY 2009-10 towards suppression of fee on MBBS Management Quota. - Decided in favour of assessee.
Addition towards suppression of fees under P.G admission - suppression of fee receipts of Post graduate seats - AO has made this addition on the basis of certain documents pertaining to the AY 2009-10 and 2014-15 - HELD THAT:- AO did not conduct any independent enquiry either with the students or their parents or with any other person related to those students in order to find out the truth. He also not brought any material on record to show that the explanations given by the assessee were not correct. Hence, we are of the view that the assessing officer should not have drawn presumptions without conducting proper enquiry. The assessee has stated that the fee is not fixed uniformly for management quota seats and the same is finalized by the chairman on case to case basis. It is also undisputed fact that the revenue did not unearth any material with regard to the remaining four seats. Under these set of facts, it may not be correct on the part of the AO to presume that the assessee would have collected more fees in respect of remaining four seats.
Though the AO has taken support of the diary relating to AY 2014-15 to entertain presumption that the assessee has been suppressing the fees, in our considered view, it may not be right to presume that the circumstances prevailing in one year existed in other years also. In any case, the assessee was not given opportunity to examine Mr. Manjunatha, who had maintained the diary. Accordingly, we are of the view that the ld CIT(A) was not justified in confirming this addition.Decision rendered in the case of Balaji Educational & Charitable Public Trust [2015 (4) TMI 342 - MADRAS HIGH COURT] would apply to this addition also. Accordingly, we set aside the order passed by Ld CIT(A) on this issue in AY 2009-10 and direct the AO to delete the addition.- Decided in favour of assessee.
Addition relating to suppression of fees of COMED-K candidates - As noticed earlier that 40% of the MBBS seats are filled up on the basis of common entrance test conducted by the association or body of professional colleges - CIT(A) deleted this addition and hence the revenue has filed this appeal - HELD THAT:- There is no dispute that the fee structure under this category is lower than the fees applicable for management quota. In this kind of situation, if any student has qualified under entrance examination conducted for COMED-K category and admission is also made out of the rank list of that examination, then no one will agree to pay higher fees than that prescribed for COMED-K category. If anybody agrees to pay, the same would be against human probabilities. If the assessee had demanded higher fees, then the concerned student had right to lodge a complaint with the State Government, as it violative of the consensual agreement entered between the Association and Government. AO has not shown that any such complaint was received against the assessee by the State Government or Association.
Assessee has explained that the letters issued to the prospective students, which were seized by the revenue, pertained to management quota seats. The revenue has seized letters issued to four students, out of which only two students have joined under COMED-K category. The assessee has furnished confirmation letters obtained from those two students confirming that they have paid only prescribed fees. We notice that the AO did not disprove the contents of the confirmation letters. In any case, those letters pertained to AY 2014-15 and not to the assessment year 2009-10, which is under consideration.
AO has not conducted any enquiry with any of the students or their parents or any other person to support the inference drawn by him that the fees applicable to management quota seats were collected from the students admitted under cancelled seats of COMED-K category. The detailed discussions made by the Ld CIT(A) would show that the assessee has answered all the queries raised by the AO in this regard and none of the said explanations have been proved to be wrong by the assessing officer. No infirmity in the decision taken by Ld CIT(A) on this issue and accordingly confirm the deletion. - Decided against revenue.
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2020 (5) TMI 689 - SC ORDER
Maintainability of application - Jurisdiction to entertain application - Approval of Resolution Plan - Section 31 of the Insolvency and Bankruptcy Code, 2016 - refund of forfeiture of the Bid Bond Guarantee - HELD THAT:- Issue notice.
Until further orders, the parties are directed to maintain status quo, as on today, with respect to liquidation. Reply, if any, be filed within four weeks.
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2020 (5) TMI 688 - NATIONAL COMPANY LAW TRIBUNAL SPECIAL BENCH, MUMBAI
Composite Scheme of Amalgamation and Plan of Merger (Scheme) - sections 230 to 232 read with section 234 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- Various directions regarding holding, convening and dispensation of various meetings issued - directions regarding issuance of various notices issued.
The scheme is approved - application allowed.
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2020 (5) TMI 687 - ANDHRA PRADESH HIGH COURT
Levy of GST - demand of tax at 18% - monthly licence fee collected from the petitioner for the work of contract of maintenance of toilets in addition to the monthly licence fee - N/N. 12/2017-Central Tax (Rate), dated 28.06.2017 and G.O.Ms.No.588, dated 12.12.2017 issued by Revenue (Commercial Taxes-II) Department, Government of Andhra Pradesh - HELD THAT:- The work contract of maintenance of toilet blocks at the 4th respondent Depot awarded to the petitioner comes within the purview of the exemption granted by the Central Government as well as the State Government. The said notification and the G.O. prevail over the terms and conditions of the licence deed. On perusal of the impugned proceedings dated 28.12.2019, this court found that the 3rd respondent issued the said proceedings only based on the licence deed and without reference to the Notification and the G.O. It is well settled that the clauses and the terms in the agreement or licence deed, which are contrary to the provisions of law and the notifications issued by the Governments, could not bind the parties to the agreement. Therefore, the action of the respondents in insisting payment of GST as per clause 47 of the licence deed is found to be illegal, arbitrary and contrary to the Notification and the G.O.
The 3rd respondent being the class-I officer of the respondent Corporation is under obligation to consider the purport of the notifications and the orders issued by the competent authority granting exemptions from payment of GST for the services rendered by the petitioner, as he is supported by well competent legal department and legal advisors, instead of driving the petitioner to this court.
The writ petition is allowed by setting aside the proceedings, with costs of ₹ 5,000/- payable by the 3rd respondent to the Andhra Pradesh State Legal Services Authority, within a period of four weeks from the date of receipt of a copy of the order.
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2020 (5) TMI 686 - ANDHRA PRADESH HIGH COURT
Levy of GST in addition to licence fee - business for the work of contract of maintenance of toilets in the Bus Station, Guntur, including all offices of the Bus Station on a monthly licence fee - HELD THAT:- The petitioner was entrusted with the work contract of maintenance of toilets in the Bus Station, Guntur by licence deed dated 19.02.2017 from 19.02.2017 to 18.02.2019 extendable to one year subject to satisfactory performance of the contract by the petitioner on a monthly enhanced licence fee payable to the Corporation by collecting user charges from the toilet users.
As per clause 43 of the licence deed, the petitioner is liable to pay 18% towards GST (9% of Central GST and 9% of State GST) in addition to the licence fee. But, as per Notification No.12/2017- Central Tax (Rate), dated 28-06-2017 issued by the Central Government and G.O.Ms.No.588, Revenue (Commercial Taxes-II) Department, dated 12-12-2017 issued by the Government of Andhra Pradesh - On perusal of the impugned proceedings dated 19.01.2019, this court found that the 3rd respondent issued the said proceedings only based on the licence deed and without reference to the Notification and the G.O. It is well settled that any clauses and the terms and conditions in the agreement or licence deed, which are contrary to the provisions of law and the notifications issued by the Governments, could not bind the parties to the agreement. Therefore, the action of the respondents in insisting payment of GST as per clause 43 of the licence deed is found to be illegal, arbitrary and contrary to the Notification and the G.O.
The 3rd respondent being the class-I officer of the respondent Corporation is under obligation to consider the purport of the notifications and the orders issued by the competent authority granting exemptions from payment of GST by the petitioner as he is supported by well competent legal department and legal advisors, instead of driving the petitioner to this court - the impugned proceedings issued by the 3rd respondent are liable to be set aside - Petition allowed.
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2020 (5) TMI 685 - NATIONAL COMPANY LAW TRIBUNAL, DIVISION BENCH - I, CHENNAI
Seeking admission and for fixing a date of hearing of the main Company Petition as well as for a direction in relation to publication in press to be effected and notices to be issued to the authorities concerned - Sections 230-232 of the Companies Act, 2013 - HELD THAT:- This petition on second motion filed on 30.07.2019 is coming up before us for fixing a date of hearing as well as for other consequential directions in terms of provisions of Sections 230 to 232 of Companies Act, 2013 read with Rule 16 of the Companies (Compromise, Arrangements and Amalgamation) Rules, 2016, brought into effect and on and from 15.12.2016.
The date of hearing of the Petition filed by the Petitioner for the sanction of the Scheme is fixed on 11™ June 2020 - The next date of hearing of the Petition shall be on 11th June2020 for the consideration of the approval of the Scheme as contemplated among the Petitioner Companies.
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