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Showing 61 to 80 of 2052 Records
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2019 (3) TMI 1999 - ITAT KOLKATA
TP Adjustment - interest by treating the investment made by the assessee in the share capital of Associated Enterprises - HELD THAT:- It is clear from a reading of para 'e' of the Cabinet Press release that, computation of ALP will arise income arises from an International transaction between AEs. It does not warrant determination or re-computation of a consideration received / given on capital account. Thus, going by the above, the transaction of investment in shares being payment on capital account falls outside the purview.
The aforesaid decision rendered for A.Y. 2010-11 [2017 (11) TMI 1443 - ITAT KOLKATA] has subsequently been followed by the Tribunal in A.Y. 2011-12 & 2012-13 [2017 (11) TMI 1901 - ITAT KOLKATA] to decide the similar issue in favour of the assesese.
Transfer Pricing Adjustment made on account of Guarantee fees - Since the issue involved in the year under consideration as well as all the material facts relevant thereto are similar to that of A.Ys. 2010-11 [2017 (11) TMI 1443 - ITAT KOLKATA] 2011-12 and 2012-13 [2017 (11) TMI 1901 - ITAT KOLKATA] we respectfully follow the orders of the Coordinate Bench of this Tribunal and delete the addition relating to the Transfer Pricing Adjustment made on account of Guarantee fees charged to the Associated Enterprises. Ground No. 3 of the assessee’s appeal is accordingly allowed.
Disallowance u/s 14A - HELD THAT:- Disallowance under section 14A is also covered by the order of the Tribunal [2017 (11) TMI 1901 - ITAT KOLKATA] wherein the disallowance made under section 14A was deleted by the Tribunal on the ground that there was no exempt income actually earned by the assessee during the relevant previous year. To arrive at this conclusion, the Tribunal relied on the decision of Cheminvest Limited [2009 (8) TMI 126 - ITAT DELHI-B] As submitted by the ld. Counsel for the assessee, no exempt income was earned by the assessee even during the year under consideration and keeping in view this undisputed factual position, we delete the disallowance made by the Assessing Officer under section 14A by following the decision of the Tribunal in assessee’s own case Ground No. 4 is accordingly dismissed.
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2019 (3) TMI 1998 - CESTAT MUMBAI
Classification of imported goods - removable or exchangeable disc drives - classifiable under heading no. 84717020 of the First Schedule to Customs Tariff Act, 1975 to was revised to heading no. 84717030 of First Schedule to Customs Tariff Act, 1975? - N/N. 06/2006-CE dated 1st March 2006 and N/N. 12/2012-CE dated 17th March 2012 - demand of differential duty - HELD THAT:- It was held in the case of COMMISSIONER OF CUSTOMS, NEW DELHI VERSUS SUPERTRON ELECTRONICS P. LTD. [2017 (1) TMI 1529 - CESTAT NEW DELHI] that Admittedly, the imported items are hard disk drive and are meant for external use with computer or lap-top as plug-in device. They are portable hard disk drive. The contention of the Revenue that they are only removable or exchangeable disk drive, is not factually or technically correct.
The classification of the impugned goods as in SUPERTRON ELECTRONICS P. LTD. decided in cannot be deviated from - Appeal allowed - decided in favor of appellant.
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2019 (3) TMI 1997 - BOMBAY HIGH COURT
Preventive Detention order - illegal business of money lending - dangerous person within the meaning of Section 2(b1) of the MPDA - infringement of fundamental right guaranteed under Article 22(5) of the Constitution of India - HELD THAT:- Admittedly, the representation of the detenu was received by the State Government after the matter was referred to the Advisory Board. The representation was kept pending and it was considered only after the receipt of the report of the Advisory Board. In the light of the discussion in the Judgments referred to hereinabove this course was impermissible and it violated the mandate of section 22(5) of the Constitution of India and thereby infringed the detenu’s right to make his representation at the earliest for its expeditious consideration.
The representation made to the State Government dated 15/11/2018 was received by the State Government on 17/11/2018 and it was kept pending till the receipt of the report of the Advisory Board which was received only on 04/12/2018. The representation, thereafter, was rejected on 04/12/2018 as on the same day, the order of detention was also confirmed - One of the major requirements of Article 22(5) is that the detenu must be afforded the earliest opportunity of making a representation against the order. This requirement will not be effective if such a representation is not decided at the earliest. Affording the detenu the earliest opportunity of making a representation is meaningless unless such representation is considered and decided at the earliest.
In the instant case, admittedly, the representation was received by the State Government on 17/11/2018 and was decided only on 04/12/2018. It was kept pending for receipt of report of the Advisory Board. This course of inaction was directly contrary to the letter and spirit of Article 22(5) of the Constitution of India. In the instant case, there is clear violation of the constitutional rights of the Petitioner - the detention order is liable to be set aside.
The detention order passed by the Respondent No.1 and confirmed by the Respondent No.2, is set aside - The Petitioner be released from his detention forthwith, if he is not required in any other case.
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2019 (3) TMI 1996 - ORISSA HIGH COURT
Validity of assessment passed by raising an extra demand to be illegal, without jurisdiction and violative of natural justice - notice issued by Assistant Commissioner of Income Tax, Corporate Circle-1(2), Bhubaneswar - HELD THAT:- As established that the jurisdiction is with the Commissioner of Income Tax (OSD) (Exemption). Therefore, the notice under Annexure-13 issued by the Assistant Commissioner of Income Tax, Corporate Circle-1(2), Bhubaneswar, is without jurisdiction. However, we are not expressing our opinion on Annexures-1 and 2, since those are appealable orders.
Accordingly, the notice under Annexure-13 is quashed/set aside. Further, it is open for the competent authority to issue appropriate notice to the petitioner in accordance with law. The writ petition is allowed to the extent indicated above.
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2019 (3) TMI 1995 - SUPREME COURT
Preventive detention - HELD THAT:- The lethargy in approaching this Court has made this position practically infructuous though we would have some reservations on the principles sought to be pronounced vide the impugned order - this special leave petition not entertained, but it is made clear that the impugned judgment would not be treated as a precedent setting out any proposition of law.
SLP disposed off.
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2019 (3) TMI 1994 - SUPREME COURT
Refund of amount paid in a real estate project - HELD THAT:- The matter is being disposed of today as it is clear that the appellant is an allottee in the real estate project of the Respondent No.3. As an allottee, it has either a right to get possession of the flat or to claim refund. It has been argued before us that the appellant has been offered possession but has declined.
In this event, it is clear that the appellant is entitled to refund of monies that it has paid. This refund will be made by Respondent No.3 within a period of four weeks from today with 10.7% interest - It is made clear that this order is not to be treated as a precedent.
Appeal disposed off.
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2019 (3) TMI 1993 - ITAT JAIPUR
Addition on account of Client Code punching error - CIT-A deleted the addition - as per the investigation carried by Directorate I & CI Mumbai and by Directorate of Investigation Ahmedabad it was found that fictitious profits and losses were created by some brokers by misusing the client code modification facility in F&O segment on National Stock Exchange (NSE) - HELD THAT:- The facts for the year consideration are an identical to the fact for A.Y. 2009-10 and the AO has selected only those transactions which would result shifting the profit from the account of the assessee and ignored the other instances of mistakes of client code where the loss is shifted from the account of the assessee. Following the earlier order of this Tribunal and having regard to the facts that the error in the client code modification is only 0.11% for this year in comparison to permissible error of 5% we do not find any error or illegality in the impugned order of the ld. CIT(A) qua this issue.
Disallowance u/s 14A - addition restricted by the ld. CIT(A) to @ 0.5% of the average investment - HELD THAT:- It is a clear that the ld. CIT(A) has applied correct rate as applicable for the year under consideration whereas the AO has applied amended rule which was not applicable for the year under consideration. Accordingly, in view of the facts that as per the formula given in Rule 8Dthe disallowance @ 0.5% of the average investment was to be calculated on account of administrative expenditure. Hence, we do not find any error or illegality in the impugned order of the ld. CIT(A) qua this issue.
Reopening of assessment u/s 147 - HELD THAT:- The report of the investigation received by the AO in respect of the alleged misuse of client code modification facility for shifting of profit along with the order passed U/s 143(3) r.w.s. 147 for the assessment year 2009-10 constitute a tangible material for forming the belief that income assessable to tax has escaped assessment. We further note that the Assessing Officer had already passed the order U/s 143(3) r.w.s. 147 of the Act for the assessment year 2009-10 and concluded that the assessee has shifted profit in the garb of client code modification facility. Thus, the reassessment order passed for the A.Y. 2009-10 constitutes a tangible material for the AO to form the belief that the income assessable to tax has escaped assessment for the year under consideration and accordingly, the AO issued a notice U/s 148 of the Act on 15.03.2017. Hence, in view of the facts that reopening in the case of the assessee is after the reassessment order passed by the AO for the A.Y. 2009-10 the reopening cannot be held to be based on change of opinion or borrowed satisfaction. Further, the proviso to Section 147 of the Act cannot be invoked for the year under consideration when there is no original assessment U/s 143(3) of the Act. Accordingly, we do not find any error or illegality in the impugned order of the ld. CIT(A) qua this issue.
Addition u/s 14A r.w.r. 8D - HELD THAT:- AO noted that the assessee has made huge investment and earned exempt income. It is not a case of isolated instance of investment made by the assessee but the assessee is involved in regular activity of investment and therefore, indirect administrative expenditure for earning the exempt income has to be computed as per Rule 8D of the Income Tax Rules. The assessee is otherwise engaged in the regular activity of trading in the NSE and therefore, the investment made by the assessee necessarily involved its managerial establishment, clerical staff etc. Accordingly, we do not find any merits or substance in the addition of the assessee when the AO has specifically pointed out that the huge expenditure incurred by the assessee in respect of his office staff. Accordingly, the addition sustained by the ld. CIT(A) is upheld.
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2019 (3) TMI 1992 - CESTAT DELHI
CENVAT Credit - input services - sales commission paid to their sale agents - difference of opinion of different courts on the issue - HELD THAT:- The Hon’ble High Court Gujarat in ASTIK DYESTUFF PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS [2014 (1) TMI 776 - GUJARAT HIGH COURT] has relied upon COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD – II VERSUS M/S CADILA HEALTH CARE LTD. [2013 (1) TMI 304 - GUJARAT HIGH COURT] however Hon’ble High Court of Punjab and Haryana in the case COMMISSIONER OF CENTRAL EXCISE, LUDHIANA VERSUS AMBIKA OVERSEAS [2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT] had given a contradictory decision - It is thereafter that the matter was referred to Hon’ble Supreme Court. Subsequent thereto there has been a CBEC Circular No. 934/4/2011 dated 29.04.2011 vide which the scope of sales promotion activities as mentioned in explanation to Rule 2(l) of Cenvat Credit Rules, 2004 (as was inserted vide Notification No. 2/2016 dated 03.02.2016) was considered.
The said clarificatory Circular was issued by the Department with a view to resolve the confusion prevalent due to the different views of the different High Courts - It was clarified therein that an explanation inserted in a Section/ Rule is generally to explain the meaning and intendments of the said Section/ Rule. Sometimes when the explanation is inserted to clarify a doubtful point of law it would be effectively retrospective in nature. While relying upon the said Circular, this Tribunal in M/S ESSAR STEEL INDIA LTD. VERSUS COMMISSIONER OF C. EX. & SERVICE TAX, SURAT-I [2016 (4) TMI 232 - CESTAT AHMEDABAD] case has held the Commission paid to the agents is a sales promotion activity.
Keeping in view the same and the fact that the matter is still subjudice before the Apex Court, due to the contrary decisions from two different High Courts, but that the Department has subsequently tried to resolve the confusion, Order is hereby set aside - Appeal dismissed.
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2019 (3) TMI 1991 - CALCUTTA HIGH COURT
Admissibility of appeal in High court - Question of law or question of fact - commission of accommodation entries - HELD THAT:- As in the present case the assessee itself offered profit rate at 0.26%, accepted by the revenue for the A.Y. 2011-12 and which is more than in the case of M/s. Mercantile Pvt. Ltd., which was also related to Badalia Group of cases. In view of the same, we find that the CIT-A was correct in directing the AO to reduce the addition - peal of the revenue is dismissed - no reason to admit the appeal.
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2019 (3) TMI 1990 - ITAT MUMBAI
Applicability of provisions of section 115 JC - assessee claimed deduction u/s 80IB - As argued housing project undertaken by the assessee has been approved prior to the date of introduction of the provisions of section 115 JC and also completion of the project - HELD THAT:- The housing project undertaken by the assessee was approved by the competent authority and accordingly, assessee claimed deduction under section 80IB of the Act of 100% of the profit from the housing project. We noted that Chapter XII BA i.e. special provisions relating to certain persons other than a company was introduced by the Finance Act 2011 w.e.f. 1.4.2012 and made applicable for and from A.Y. 2012-13 in respect of limited liability partnerships. This provision was made applicable to other categories of persons other than a company with effect from 1.4.2013 by the Finance Act, 2012.
Accordingly, the provisions of section 115JC of the Act was made applicable to profit from housing projects deductible under section.80IB(10) of the Act only in respect of housing projects approved by the competent authority on or after 1.4.2013. Similar case was dealt with by co-ordinate bench of this Tribunal in the case of Neha Home Builders Pvt Ltd. [2018 (4) TMI 860 - ITAT MUMBAI], wherein, it is held that the assessee was entitled to claim of deduction under section,80IB(10) of the Act while computing book profit u/s.115JB of the Act in respect to the profit of the housing project.
As gone through the case law of Hon’ble Supreme Court in the case of Sarkar Builders [2015 (5) TMI 555 - SUPREME COURT] wherein, Hon’ble Supreme court has considered the provisions of section 6 of General clauses Act 1897 and also considered the saving provisions in the repealing statute which is not exhaustive of the rights and which are saved or which survive the repeal of the statute under which such right had accrued.
Hon’ble Supreme Court has considered whatever rights are expressly saved by the saving provisions stand saved but that does not mean rights which are not saved by the saving provisions are extinguished or stand ipso facto terminated by the mere fact that a new statue repealing the old statute is enacted. Even Hon’ble Supreme Court in the case of Vatika Township P Ltd [2014 (9) TMI 576 - SUPREME COURT] has considered the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. One principle of law is known as lex prospicit non respicit law looks forward not backward - a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.
The provisions of section 115JC of the Act as brought in the statute by the Finance Act (No.2) w.e.f. 1.4.13 will apply prospectively and to the projects claiming deduction under section 80IB(10) of the Act, which have come or approved on or after that date. Accordingly, this provision cannot be applied to the projects completed or approved retrospectively upto 31.3.2012. Hence, we allow the appeal of the assessee
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2019 (3) TMI 1989 - DELHI HIGH COURT
Disallowance of Employees Stock Option Plan (‘ESOP’) - HELD THAT:- As pointed out by Assessee that the issue stands covered in favour of the Assessee and against the Revenue by the order of this Court in Commissioner of Income Tax v. Lemon Tree Hotels [2015 (11) TMI 404 - DELHI HIGH COURT] - The Court had affirmed the order of the ITAT in M/S. BIOCON LIMITED [2013 (8) TMI 629 - ITAT BANGALORE] deciding the issue in favour of the Assessee in the said case where the addition made by the AO by way of disallowance of the expenses debited as cost of ESOP in profit and loss account was deleted by the ITAT.
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2019 (3) TMI 1988 - PUNJAB & HARYANA HIGH COURT
FEMA - Offences committed under the repealed Act - HELD THAT:- Section 49 of the FEMA deals with repeal and saving of the Act and the Appellate Board constituted under the Act was dissolved. Sub-section (4) of Section 49 of FEMA made a provision as to how offence committed under the repealed Act shall be governed by and in clause (b) of sub-section (5) of Section 49 a provision is made as to who would be competent to dispose of the appeals pending before the Appellate Board constituted under the Act and the pending appeals were ordered to be transferred for disposal to the Appellate Tribunal constituted under FEMA. There is no provision under Section 49 that if a person feels aggrieved by an order passed in respect of offence committed under the repealed Act, he would be entitle to file an appeal before the Appellate Tribunal constituted under FEMA. That being so, the mere fact that the Adjudicating Authority in order dated 30-3-2017 has prescribed that an appeal shall lie to the Appellate Tribunal for Foreign Exchange or an interim order has been passed by the said Tribunal staying recovery of penalty subject to payment/deposit of 20% of the amount would not enure to benefit of the appellants to assert their claim that the appeal is maintainable before the Appellate Tribunal under SAFEMA, FEMA, PMLA, NDPS, PBPT Act.
We do not find an error much less illegality in the order impugned dated 6-2-2019. So far as challenge to the order dated 30-3-2017 passed by the Deputy Director, Directorate of Enforcement Jalandhar is concerned, the same cannot be challenged before this Court by filing an appeal against first order.
In view of what has been discussed hereinbefore, finding no merit, the appeal fails and is accordingly dismissed in limine. However, nothing stated hereinbefore shall cause prejudice to the appellants to avail appropriate remedy, in accordance with law. In case the appellants prefer an appeal before a Competent Authority/Fora and law prescribes limitation for preferring such an appeal, the appellants would always be at liberty to raise a plea that as they had been pursuing their remedy before the Appellate Tribunal, delay in filing the appeal may be condoned.
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2019 (3) TMI 1987 - APPELLATE AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH
Exemption from GST - course Executive Post Graduate Programme in Management (EPGP) - eligibility for exemption after enactment of JIM Act, 2017 notified w.e.f. 31-01-2018 - HELD THAT:- At present, Indian Institutes of Managements are providing various long duration programs (one year or more) for which they award diploma/degree certificate duly recommended by Board of Governors as per the power vested in them under the IIM Act, 2017. Therefore, it is clarified that services provided by Indian Institutes of Managements to their students- in all such long duration programs (one year or more) are exempt from levy of GST. As per information received from IIM Ahmedabad, annexure 1 to this circular provides a sample list of programmes which are of long duration (one year or more), recognized by law and are exempt from GST.
For the period from 1st July, 2017 to 30th January, 2018, IIMs were not covered by the definition of educational institutions as given in notification No. 12/2107-Central Tax (Rate) dated 28-06-2017. Thus, they were not entitled to exemption under Sl. No. 66 of the said notification - for the period from 1st July, 2017 to 30th January, 2018, GST exemption would be available only to three long duration programs.
Indian Institutes of Managements also provide various short duration/short term programs for which they award participation certificate to the executives/professional as they are considered as “participants” of the said programmes. These participation certificates are not any qualification recognized by law. Such participants are also not considered as students of Indian Institutes of Management. Services provided by IIMs as an educational institution to such participants is not exempt from GST. Such short duration executive programs attract standard rate of GST@18%.
Thus, it is crystal clear that from 31st January, 2018 onwards all long duration programs (one year or more) conferring degree/diploma as recommended by Board of Governors as per the power vested in them under the IIM Act, 2017 including one-year Post Graduate Programs for executives, are exempt from GST.
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2019 (3) TMI 1986 - SUPREME COURT
Initiation of Sunset Review - ADD on Ductile Iron Pipes - import from Peoples Republic of China - Rule 23 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Articles for Determination of Injury) Rules, 1995 - extension of ADD for a further period - HELD THAT:- Issue notice on the prayer for interim relief as well as Special Leave Petition, returnable on 01.04.2019.
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2019 (3) TMI 1985 - MADRAS HIGH COURT
Offence punishable u/s 277 - as alleged petitioner did not disclose his money lending and chit business in his returns of income and declared false statement of returns of income filed in his individual capacity and wilfully under reported the income earned by the petitioner - HELD THAT:- The concept of mens rea is integral to criminal jurisprudence and offence cannot be committed intentionally. Section 278 (E) of the Taxation Laws places burden of proving the option of mens rea upon the accused and also provides that such absence need to be proved not only to the basic threshold of “preponderance of possibility” but beyond reasonable doubt. In every prosecution case, the court shall always presume culpable mental state and it is for the accused to prove the contrary beyond reasonable doubt.
In the present case, it is evident from the complaint that the petitioner did not disclose his income to the tune of Rs.35 crores for the assessment years 2009-2010, 2010-2011, 2011-12, 2012-2013, 2013- 2014 and 2014-2015. The petitioner wilfully made false statement of return of income and wilfully under reported the income earned. Therefore, the entire proceedings cannot be quashed on the grounds raised by the petitioner as stated supra. The petitioner has to prove the contrary beyond reasonable doubt before the trial court and the trial court has to enquire the complaint independently on the basis of the evidence as such these petitions are liable to be dismissed.
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2019 (3) TMI 1983 - ITAT DELHI
Disallowance of depreciation on buildings - scope of rule of consistency - HELD THAT:- Revenue Authorities continuously allowed depreciation on building in earlier Assessment Years 2009-10, 2010-11, 2012-13 & 2014-15 but specifically change its stand in this particular year as well as in Assessment Year 2013-14 without giving proper reasoning towards the same. Thus, following Rule of Consistency, Ground No.1 is allowed.
Depreciation on building pertaining to rental portion of buildings - HELD THAT:- As from the records it can be perused that the assessee purchased the fully constructed building i.e. industrial built up factory and not the land. Therefore, bifurcating the value of land by the Registrar does not specify the value of land and building separately. Therefore, in light of the decision in case of Oswal Agro Mills Ltd. (2010 (12) TMI 947 - DELHI HIGH COURT] wherein it is held that it is difficult to maintain the details of each assets separately in respect of the land and building constructions and the same will frustrate the very purpose of the provisions if it is done so. The Hon'ble High Court further held that it is also essential to point that the Revenue is not put to any loss by adopting such method and allowing depreciation as the same forms part of the block of assets even when that particular asset is not in use in the relevant Assessment - Ground No.2 is allowed.
Disallowance at 10% of Vehicle Maintenance - HELD THAT:- The details of expenses were given to the Assessing Officer by the assessee during the assessment proceedings which was not considered by the Assessing Officer as well as CIT(A). Besides that the CIT(A) has enhanced 5% to 10% which is not as per the specific provision prescribed u/s 37(1) of the Act.
There is no basis for enhancing the expenses and first of all the expenses were properly explained by the assessee during the assessment proceedings. Therefore, we set aside the order of the CIT(A). Ground No.3 is allowed.
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2019 (3) TMI 1982 - ITAT PUNE
Reopening of assessment u/s 147 - bogus purchases - information received from sales tax department about hawala transactions of purchases made by the assessee - HELD THAT:- AO does not treats the purchases as non-genuine / bogus but makes addition by treating the purchases as “URD purchases”. The addition is made only of the Gross profit on such alleged “URD purchases”.
We find in the case of Jet Airways (2010 (4) TMI 431 - HIGH COURT OF BOMBAY] has held that if after issuing notice u/s 148 of the Act, AO holds that the income which he has initially formed a reason to believe had escaped assessment has not escaped assessment, then it is not open to him to independently assess some other income.
In the present case when seen in the light of the aforesaid decision of Hon’ble Bombay High Court (supra) the reasons for reopening was on account of bogus/non genuine purchases but no addition has been made on that count but addition has been made for the reason that the purchases are “URD purchases”. As during the course of reassessment proceedings assessee had furnished the details called for to prove his contention that the purchases are genuine except for the confirmation of the parties from whom the purchases were made. Before me, no fault has been pointed out in those details submitted by the assessee - Decided in favour of assessee.
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2019 (3) TMI 1981 - DELHI HIGH COURT
Principles of res-judicata - Seeking to commence arbitration proceedings for claiming "incentive payments" under Clause 14 of the Securities Purchase Agreement - seeking to resist the arbitration action initiated by the defendant on the plea that it is, inter alia, barred by res judicata - whether or not NCCL could continue with the 2nd or a new arbitration? - HELD THAT:- The doctrine has its roots in public policy. It, therefore, bars raising of an issue in a subsequent proceeding, which is directly and substantially in issue in an earlier proceeding between the same parties or between the parties claiming or litigating under the same title. Pertinently, the decision on which reliance is placed to invoke the doctrine of res judicata should be a decision of a Court of competent jurisdiction. It would, however, matter little if it is a Court of limited jurisdiction, that is, it is not competent to try the subsequent action or the action in which the issue has been raised subsequently.
As to whether constructive res judicata would apply in this case, one would have to examine whether the issue at hand concerning incentive payments is a mixed question of fact and law and, therefore, would require, if not, a full-blown trial at least a mini-trial. If it does, then, perhaps, this Court is not the appropriate forum to deal with this plea - what HSPL and TAQA, in effect, seek in terms of relief, both in the interlocutory application and the suit, is an anti-arbitration injunction. The Courts, ordinarily, have been very slow in granting injunctions whereby arbitration proceedings are brought to a standstill. The fundamental reason for this appears to be that the parties by entering into a contract would have necessarily agreed, as in this case, that all issues connected with or arising from the agreement entered into between them, would be tried by an Arbitral Tribunal duly constituted in terms of the agreement and, therefore, any sort of injunction granted by the Court would tantamount to aiding breach of the arbitration agreement.
In the instant case, I have not been able to come to a conclusion that the arbitration agreement has been rendered null and void, inoperative or incapable of being performed. These expressions were used by Mr. Sethi in the context of very same facts which were put forth to expound the bar of res judicata, waiver, and abandonment. Since, I have held that a trial would be required the same reasoning would hold vis-à-vis this submission as well.
The question raised is whether at this juncture it is just and convenient to injunct the 2nd Arbitration proceeding by labeling it as an abuse of process, which clearly is a mixed question of law and fact and would require trial - Since I have come to the conclusion that under the relevant SIAC Rules, the 2nd Arbitral Tribunal could adjudicate upon this aspect, it cannot be said at this stage, especially, in the context of arbitration proceedings that triggering of 2nd arbitration proceedings is an abuse of process.
The jurisdiction, as alluded to above, with regard to constructive res judicata and other legal pleas could justly and conveniently be adjudicated upon by the 2nd Arbitral Tribunal. Therefore, no case is made out for injunction by this Court.
Application dismissed.
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2019 (3) TMI 1980 - ANDHRA PRADESH HIGH COURT
Seeking issuance of writ of habeas corpus - Seeking liberty of detenue - passing remand order invoking Section 267 Cr.P.C. - grievance of the petitioner is that the petitioner is involved in number of cases and that his remand is sought by the police on PT warrant without effecting his arrest and that the accused is being remanded on PT warrant, contrary to provisions of Section 267 Cr.P.C. - HELD THAT:- In the instant case though the petitioner was released on bail in crimes registered against him, the reason for he being kept in prison is not reflected in the material placed on record. On the other hand, the application filed before the Lower Court seeking recall of PT warrant show that to the knowledge of the petitioner he has not been arrested in any other crime and there was no remand under Section 167 Cr.P.C., meaning thereby that the petitioner was not aware or was not able to give a clear picture as to whether his arrest has been shown in any other crime - Since the prisoner was in remand as on the date of passing of the order by the Concerned Court, the Jail Authorities produced the alleged prisoner before the Court on the respective dates and having heard the matter, passed an order under Section 167 Cr.P.C. remanding him to judicial custody, which is being extended from time to time as required under Section 167 Cr.P.C. Unless that judicial order is set aside by the Competent Court, it is pleaded that the custody cannot be termed as legal.
As seen from the record, the petitioner is involved in number of crimes relating to theft and illegal transportation of red sander logs cut in Simhachalam Forest. Though he was detained under preventive detention laws, his detention order was set aside on technical ground. Fact remains that he is shown as an accused in number of crimes in different police stations of the State. Steps are being taken for his production in almost all the police stations through PT warrant before the Concerned Courts. It is also to be noted here that if PT warrants are issued by different Courts for production of the alleged detenue before the respective Courts, then it would be practically impossible for the police to produce the prisoner before various Courts at various places on a particular date and eventually the order of the High Court could not be complied with.
When the prisoner is detained pursuant to the judicial order passed by the Magistrate, one cannot term such detention, as illegal, as there is distinction between illegal custody and custody made in pursuance of the judicial orders. Unless judicial orders are set aside, the petitioner cannot be released holding his detention as illegal and improper - the issuance of writ of habeas corpus would not arise when remands are made pursuant to a judicial order.
Petition dismissed.
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2019 (3) TMI 1979 - ITAT DELHI
Assessment u/s 153C - Validity of satisfaction note on the basis of which the assessing officer initiated the proceedings u/s 153C - HELD THAT:- As seen that the impugned satisfaction note provided to the assessee vide AO’s letter unsigned, with no date indicating the date on which satisfaction was drawn, and with no mention of the assessment year for which satisfaction was drawn, while the satisfaction found in the assessment folder is on the note sheet side (X2) - with no page marking on the satisfaction prior to 06.01.2016 when the assessment folders were sent back to the AO by me, but subsequently found marked in the case of the appellant and that of Sh. Kartik Patel and Sh. Abhishek Kartik Patel and in the case of Smt. Meenakshi Patel and M/s Kartik Chandulal Patel HUF (in fact the satisfaction in the file of Sh. Kartik Pate! is that of Smt. Meenakshi Patel) - and the correspondence sheets are marked up to pages 187, 411, 192, 194 and 187 respectively which do not include tne satisfaction note on the correspondence side.
Besides, on the satisfaction note, both X1 & X2, the name of the searched company M/s Sheela Foam Pvt Ltd is noted on top, meaning thereby that the satisfaction was recorded in the case of SFPL on 28.08.2013 when notice u/s 153A was issued to SFPL, but there is no satisfaction recorded in the case of the appellants (Kartik Patel Group hamily members). In this view of the matter, and in terms of the AO’s reply that “the undersigned is unable to explain the unsigned/undated copies of satisfaction notes as claimed by the assessee”, the satisfaction enclosed with the AO’s letter F.No.DCIT/CC- 11/2013-14/1634 dt. 06.01.2014 sent to the assessee cannot be considered as valid satisfaction of the AO. We further note that since the AO has mentioned in his reply dt. 14.01.2016 that “The assessment records as available in this office were sent as desired by your goodself, it is necessary to mention that the assessment folders of all the five cases of the group was sent back to the AO on 06.01.2016 and the AO’s reply is dt. 14.01.2016.
We do not find any reason to interfere in the order of the Ld. CIT(A), wherein it has been held that the satisfaction recorded by the AO and the issuance of notices u/s. 153C of the Act held to be invalid and therefore, the reassessment orders in this case cannot be sustained and appeal of the assessee was rightly partly allowed on the legal issue itself, hence, we uphold the action of the Ld. CIT(A) on the legal issue and dismiss the appeal of the Revenue.
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