|
Advanced Search Options
Case Laws
Showing 81 to 100 of 1376 Records
-
2023 (1) TMI 1296 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Approval of Resolution Plan - It is submitted that for the mere fact that Appellant did not file its claim, Appellant shall not be disentitled from distribution as Secured Creditor - HELD THAT:- From the facts brought on the record, there is no dispute that at the time when claim was filed by the Appellant on 01.06.2022, the CoC has already approved the Resolution Plan. The judgment of Hon’ble Supreme Court in State Tax Officer (1) vs. Rainbow Papers Ltd. [2022 (9) TMI 317 - SUPREME COURT] was considering a claim which were invited on 05.10.2017 which was much prior to amendment in the Regulation, as has been noted in the judgment.
In the facts of the present case, the plan approved has also been implemented and the amount received has been disbursed to the Financial Creditors and other claimants as per the Resolution Plan. The submission of learned counsel for the Appellant that the Appellant being a Secured Creditor as per the law laid down by the Hon’ble Supreme Court in State Tax Officer (1) vs. Rainbow Papers Ltd. he ought to have been allocated amount as per Section 53 at par with the Secured Financial Creditors cannot be accepted in the facts of the present case.
When there is no claim filed by the Appellant within time, no error has been committed by the Adjudicating Authority in approving the Resolution Plan, which was approved by the CoC much prior to filing of the claim by the Appellant.
Thus, no relief can be granted to the Appellant in the facts of the present case - appeal dismissed.
-
2023 (1) TMI 1295 - KERALA HIGH COURT
Rights of detenue under COFEPOSA Act - contraband Gold - whether the detenu can ask for any and every document? - HELD THAT:- After referring to the various decisions the Apex Court in Powanmal [1999 (1) TMI 538 - SUPREME COURT] held that every document and materials which finds a passing reference in the course of narration of facts in the ground of detention need not be supplied. But such documents, non-supply of which would prejudice the detenu in making an effective representation are to be supplied to him. The reason is that non-supply of such documents would amount to denial of the right of being communicated the grounds and being afforded the opportunity of making effective representation against the detention order.
The petitioner brought to attention a few decisions of both the Apex Court and different High Courts, where the question, whether non supply of various documents amounted to denial of the right of the detenu having the effect of vitiating the order of detention, was considered. It is not proposed to deliberate upon those decisions since those are decisions on facts and no proposition of law different from what has been enunciated in the aforesaid decisions was evolved.
In ANKIT ASHOK JALAN VERSUS UNION OF IDNIA AND ORS. [2020 (3) TMI 248 - SUPREME COURT] the Apex Court held that the consideration for revocation of a detention order is limited to examining whether the order conforms with the provisions of law whereas the recommendation of the Advisory Board is on the sufficiency of material for detention, which alone is either confirmed or not accepted by the appropriate Government. Therefore the detenu cannot be heard to contend that the documents which were not placed before the detaining authority and found not to have a vitiating effect on the subjective satisfaction of that authority should have been supplied to the detenu.
In the above background only demand of the detenu for the documents can be considered. The grievance of the petitioner is about non-supply of five items of documents - Those are not relied upon documents. No reference to document No. 1, recording of audio chats between the detenu and Sri. Biju V Joy is there in the grounds of detention. Item No. 3, Exts.P2, P3 and P6 are post detention order documents and there could not be any mention of them in the grounds of detention. The other three documents do have casual mentioning, but the Detaining Authority did not rely on them.
As far as the show cause notices sent the co-accused and their replies are concerned there is only passing reference in the grounds in support of Ext.P8 detention order. In such circumstances, the detenu can resort to the plea of invalidity of the detention order for non-supply of those documents only if he substantiates that the non-supply caused prejudice to him. It is also his obligation to explain in what way those documents are relevant for his making representation.
Exts.P12 and P13 are the representations submitted by the detenu in which he made requests for those documents as well as Exts.P2, P3 and P6. The detenu did not state in what way those documents were relevant in the matter of his making representation. In this Writ Petition also, it is not explained how his right has been prejudiced as a result of non-supply of those documents. When Exts.P2, P3 and P6 were produced by him in this Writ Petition, his demand for those documents appears fallacious. In the case of documents which are relied upon by the Detaining Authority, it is the absolute right of the detenu to get copies within the time prescribed in Section 3(3) of the COFEPOSA Act - The detenu did not state in what way such documents are relevant for him to make his representation and how the non-supply has affected his right to make a meaningful and effective representation. In such circumstances, his attack to the detention order on the ground of non-supply of documents also fails.
Petition dismissed.
-
2023 (1) TMI 1294 - DELHI HIGH COURT
Income taxable in India - taxing of the sale of software and subscribers as royalty income - HELD THAT:- As the issue raised in the instant matter is covered by the judgment of the Supreme Court rendered in Engineering Analysis Centre of Excellence Pvt. Ltd. [2021 (3) TMI 138 - SUPREME COURT] as held amounts paid by resident Indian end-users/distributors to non-resident computer software manufacturers/suppliers, as consideration for the resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty for the use of copyright in the computer software, and that the same does not give rise to any income taxable in India, as a result of 5 which the persons referred to in section 195 of the Income-tax Act were not liable to deduct any TDS under section 195 of the Income-tax Act and decided the issue in favour of the assessee.
-
2023 (1) TMI 1293 - BOMBAY HIGH COURT
Reopening of Assessment u/s 147 - Whether order passed u/s 148A(d) is passed in breach of principles of natural justice? - submission is on the premise that the notice dated 23/03/2022 was received by the assessee by post on 31/03/2022 and the order under clause (d) of section 148A came to be passed on the same date without giving any opportunity, whatsoever, to the assessee to show cause - HELD THAT:- The averments on oath, which were extracted, have not been rebutted by the petitioner and we see no difficulty in accepting the veracity thereof. In this view of the matter, the submission that the notice and the subsequent order falls foul of the principles of natural justice must be rejected.
The next submission is that the premise, on which the notice is issued, is unfounded and contrary to the record maintained by the petitioner-society. It is submitted that the allegation that the petitioner deposited Rs. 15,0000/- as time deposit, and amount of Rs. 59,73,800/- with Khamgaon Urban Cooperative Bank in the year 2014-15 is incorrect inasmuch as the petitioner has no bank account with the said bank. We are afraid that in writ jurisdiction, it would not be permissible for us to consider the said contention, which the petitioner has not raised before the assessing authority. We have already noticed supra, that if any illegal or unjust demand of tax is made, the remedy of the assessee lies elsewhere and not by directly invoking the writ jurisdiction.
The petition is dismissed.
-
2023 (1) TMI 1292 - ITAT MUMBAI
Deduction u/s 10A - interest income has not been derived from exempt industrial undertaking - HELD THAT:- We are of the considered view that earning interest from the surplus funds deposited with bank, bonds as well as loans to the employees and subsidiaries are eligible for deduction under section 10A of the Act subject to the quantification and attribution of such interest to 10A units by the AO. The assessee shall furnish evidence to established its claim u/s 10A of the act which as derived from business of Software Technology Park of India (STPI) units. So ground No.1 of the assessee is allowed subject to the verification and quantification by the AO.
Disallowance u/s 14A - expenditure incurred on earning exempt income - HELD THAT:- Honourable High Court of Bombay in case of CIT vs. Sociedade De Fomento Industrial (P.) Ltd. [2020 (11) TMI 277 - BOMBAY HIGH COURT] held that "no doubt expenditure u/s 14A includes both direct and indirect expenditure but that expenditure must have a proximate relationship with exempt income and surmises or conjunctures is no answer." So in the instant case when the assessee has purchased UTI bonds in 1998 and earned interest income thereon in A.Y. 2005 – 06 no proximate relationship in the expenditure disallowed by the AO with the exempt income has been established but mechanically applied rule 8D which is not applicable for the year under consideration. So in these circumstances we are of the considered view that disallowance made under section 14A by the AO and confirmed by the Ld. CIT(A) is not sustainable in the eyes of law.
Computation of deduction of deduction 10A - AO is directed to allow the assessee's claim of deduction u/s 10A of the Act by including the same both in the total turnover as well as export turnover.
AO has added back the amount of losses of the assessee's Chennai unit and Goregaon units on the ground that section 10A is an exemption section and not a deduction section - HELD THAT:- Since the issue is no longer res-integra having been covered by the order passed in Scientific Atlanta India Technology (P) Ltd [2010 (2) TMI 658 - ITAT, CHENNAI] and this issue has also been decided in favour of the assessee in case of CIT vs. Yokogawa India Ltd. [2016 (12) TMI 881 - SUPREME COURT] we find no illegality or perversity in the impugned findings. Hence, ground numbers 2 and 3 are determined against the Revenue.
Addition on account of notional interest from overseas subsidiaries on account of outstanding balances lying with them - HELD THAT:- As we are of the considered view that when undisputedly AEs are not the end customers and their remittance to the assessee in turn depends upon the remittances by the end customers it cannot be said that the AEs have benefited because of delay in remitting the receivables. These facts have been duly thrashed by the Ld. CIT(A). So we find no illegality or perversity in the impugned findings returned by the Ld. CIT(A). Hence, ground decided against the Revenue.
Addition on account of interest charged to the overseas subsidiaries in respect of the loans granted to them as well as deemed guarantee charge - CIT(A) deleted this addition which is under challenge - HELD THAT:- CIT(A) has rightly reached the conclusion that when the interest has already been charged by the average LIBOR rate as discussed in the impugned order the adjustment made by the Ld. TPO/AO on account of arms length is not sustainable in the eyes of law and similarly adjustment made by the assessee on account of guarantee fees also not sustainable as AEs have directly taken the loan from the assessee and as such there is no question of making payment of guarantee fee. So we find no ground to interfere into the findings returned by the Ld. CIT (A). Hence determined against the Revenue.
-
2023 (1) TMI 1291 - ITAT DELHI
Depreciation allowance on Cisco Phone - items functionally dependent on computers - 15% or 60% - AO treated the Cisco Phone as part of plant and machinery and did not allow the depreciation rate of 60% claimed by the assessee applicable for computers - HELD THAT:- As the identical issue was considered in the case of M/s. Cisco Systems Capital (India) Pvt. Ltd. 2014 (12) TMI 890 - ITAT BANGALORE] as held items which are, functional dependent on computers are definitely part of computer and the items with independent existence may not be computers but wherever it is found that the device is not used independent of the computer system and the purpose of audio visual conferencing and video streaming, the same shall be treated as computers and wherever it is used independently for any other purpose it shall be treated as plant and machinery. The AO, shall, thus allow depreciation at the rate of 60% on the equipment which could be classified as computer and at the rate of 15% on the equipment which could be classified as plant and machinery. This issue is accordingly set aside to the file of the AO for re-adjudication
Accordingly, in the interest of justice, we remit the file to the AO. AO is directed to follow the ratio laid down by the ITAT in the aforesaid order. Assessee appeal partly allowed for statistical purposes.
-
2023 (1) TMI 1290 - ITAT RAIPUR
Exemption u/s 11 - rejecting the application seeking registration u/s.12AA - CIT(E) after verifying the documents provided by the assessee-society found that the assessee society is generating substantial surpluses - HELD THAT:- On perusal of the impugned order, we found that the CIT(E) has provided only one opportunity to the assessee to provide the details as sought for, for which, as per assessee could not submit the details within the time. Looking to the above facts and circumstances of the case and in the interest of principle of natural justice, as fairly admitted by both the sides, we set aside the issue to the file of CIT(E) to re-adjudicate the same after providing adequate opportunity of hearing to the assessee. Appeal of assessee is allowed for statistical purposes.
-
2023 (1) TMI 1289 - ALLAHABAD HIGH COURT
Change in the share holding of the allottee company - liability to pay Change in the Share Holding Charges (CIS charges) as per the policy of Greater NOIDA dated 13.7.2021 - HELD THAT:- In view of the categorical stand of the petitioner in the writ petition which could not be successfully refuted by the respondent Greater NOIDA we are required to take note of Clause 3.4 of the transfer policy of Greater NOIDA, issued by the office order dated 13.7.2021 - In view of the provision in Clause 3.4 of the policy, no CIC charges can be demanded from the petitioner company in view of the established stand of the petitioner that it was merely a change in the name of the original allottee/leasee company and there is no change in the ownership or share holding of the allottee company.
The demand notice dated 14.06.2021 is found illegal, contrary to the own policy of the Greater NOIDA promulgated by the office order dated 13.7.2021.
As there is no justification for demand of CIC charges, while quashing the demand notice, the writ petition is allowed.
-
2023 (1) TMI 1288 - DELHI HIGH COURT
Income taxable in India - taxability of receipts towards software and subscription - AO had held the receipt to be royalty and taxed it @10% on the gross basis as per Article 12 in India-Netherland treaty - HELD THAT:- The issues which arise in this special leave petition have been considered by this Court in a case of Engineering Analysis Centre of Excellence Private limited [2021 (3) TMI 138 - SUPREME COURT] as held consideration end user license, Copy Right Act, and provisions contained in DTAA and the Income Tax Act and has laid down the parameters to test whether the receipt from sale of software would tantamount to royalty or not. No substantial question of law arises for our consideration in the present appeal.
-
2023 (1) TMI 1287 - ITAT DELHI
Condonation of delay - delay of filing the appeal before this Tribunal of 968 days - reasonable cause submitted is that company’s accountant received the order through email from the counsel of the assessee company but the said accountant forgot to disclose the impugned order and another person joined as accountant in the assessee company who while scrutinizing the accounts found that the said appeal has not been filed - HELD THAT:- Upon careful consideration, we do not find reasonable cause cogent enough to condone the huge delay of 968 days. The case law of JAKSON LTD. VERSUS ACIT, CENTRAL CIRCLE-25, NEW DELHI [2018 (10) TMI 126 - ITAT DELHI] referred by assessee is not applicable on the facts of the case here. In these circumstances, we are inclined to dismiss the appeal in limine, being time barred.
Appeal is dismissed as time barred.
-
2023 (1) TMI 1286 - SC ORDER
Maintainability of petition - availability of alternative remedy - HELD THAT:- The appeal is disposed of in terms of the signed order.
In view of the disposal of the appeal, no orders are passed on the application for impleadment/intervention which is accordingly disposed of.
-
2023 (1) TMI 1285 - ITAT INDORE
Disallowance u/s. 14A r.w.r. 8D - no disallowance can be made in the hands of the assessee when the assessee has not claimed any exempt income - HELD THAT:- CIT(A) after considering the written submissions of the assessee has granted relief to the assessee by following judgement in the case of Cheminvest Ltd. vs. CIT (2015 (9) TMI 238 - DELHI HIGH COURT] where Their Lordship categorically held that section 14A will not apply if no exempt income is received or receivable during the relevant previous year by the assessee. In view of above we are unable to see any valid reason to interfere with the findings arrived at by the Ld. CIT(A), therefore we uphold the same.
Until unless the issue is adjudicated at the level of Hon’ble Supreme Court modifying of setting aside the orders of judgments of Hon’ble High Court all authorities below to the High Court’s including this Tribunal is duty bound to follow the propositions rendered by Hon’ble High Court therefore we are inclined to hold that the Ld. CIT(A) was right in granting relief to the assessee by following the proposition rendered by various High Court’s including judgment of Hon’ble Delhi High Court in the case of Cheminvest vs. CIT (supra). Consequently ground of revenue being devoid of merit is dismissed.
-
2023 (1) TMI 1284 - ITAT DELHI
Correct head of income - Interest Income from Temporary Investments and Interest income from FDs - assessee deposited their surplus funds in the bank on which an interest was earned and the same offered to tax under the head ‘income from business and profession’ - AO treated the interest earned from fixed deposits under the head income from other sources - CIT(A) confirmed treated income from FDs as income from other sources and interest income from temporary investments as business income - HELD THAT:- As respectfully following the detailed judgment of Tuticorin Alkali Chemicals & Fertilizers Ltd. [1997 (7) TMI 4 - SUPREME COURT] we hold that the interest earned out of temporary investments made out of borrowed funds not immediately required for utilization in business be treated as business income as the commercial production has started from 29.08.2009. Ergo, the assessee gets relief of an amount accordingly.
Earning of interest from FDs - assessee has invested the surplus funds in the FDs has nothing to do with the business connection - In the instant FDs, we find that there was no compulsion on the part of the assessee to invest in bank FDs as a part of an agreement. No business contingency was brought out whether in this case the surplus funds have been kept as fixed term deposits in the bank which yielded interest. It is a passive income which is not directly relatable to the main functions of the business or the venture of oil exploration. This interest would be received even in the absence of lull/cessation of exploration activity. The interest was received is to be treated under a separate head for the purpose of tax as per the provisions of Section 14 of the Income Tax Act, 1961 - Ergo, appeal of the assessee on this ground is dismissed.
Prior period expenses - correct assessment year - expenses on account of Exploration - AO disallowed the expense on the basis that the same should be allowed in the year of commercial production i.e. the instant year - HELD THAT:- As AO disallowed the preoperative expenses in the Assessment Years 2003-04 to 2009-10, the assessee went into appeal and subsequently opted for VSV Scheme, thus resting all the litigation. Since, the matter attained finality the payment of tax wherever applicable, this ground cannot be re-entertained at this juncture.
Additional Depreciation u/s 32(1)(iia) without its claim made by the assessee - “Mandatory Claim” or an optional claim at the convenience of the assessee - additional depreciation has not been claimed by the assessee and deduction u/s 80IB was recomputed after allowing additional depreciation - CIT(A) held that a general rule, the explanations incorporated in the Income tax act specifically provide that a particular explanation applies to a 'section' or sub-section' or 'clause' or 'sub-clause', therefore, there is no ambiguity in the applicability of a particular explanation in the act - HELD THAT:- The explanation 5 was introduced with effect from 1/04/2002 and clause (iia) was reintroduced from 01/04/2003. The later insertion of clause (iia) con not be the basis for non applicability of explanation 5 to the said clause because if the intention of the parliament was there to restrict the explanation to a particular clause only, it would have amended the phrase "sub-section" to "clause" or "sub-clause" as the case may be. It may be interesting to note that explanation 2 to the sub-section 1 of section 32 was modified from the phrase "[For the purposes of this [clause]" to "For the purposes of this [sub-section]" by the Finance Act, 2002, w.e.f. 1-4-2003.
The case laws cited by the assessee do not pertain to Income Tax Act but to Evidence Act and Agriculture Income Tax Act and there may be ambiguity in the scope of applicability of "explanation" in the respective Acts. AO has rightly allowed the additional depreciation in this case even without its claim by the assessee. The appeal of the assessee on this ground is dismissed.
TDS on Exploration & Development Expenditure - addition u/s 40(i)(ia) - non deduction of tds - HELD THAT:- As the assessee has furnished tax audit report of the operator CEIL perusal of which shows that TDS requirement have been duly complied with the operator. hence, the disallowance made by the AO on account of exploration & development expenditure per se and on account of infraction of provisions of Section 40(a)(ia) of the Income Tax Act, 1961 are liable to be deleted.
Disallowance of Time Cost Expenses u/s 40A - HELD THAT:- In the present case, it is an admitted position that the assessee does not have any other business in India except PI in the block and has not incurred any expenditure itself, rather it has made contribution to the cash calls made by the operator which has incurred the expenditure.
It is a settled position of law that for making a disallowance u/s 40A of the Act, the onus is on the AO to establish that the payments made by the assessee were excessive and unreasonable. In the present case, the AO made disallowances without discussing even the nature of expenses and its reasonableness. Hence, the disallowance proposed to be made is bad in law and deserves to be deleted.
Disallowance of Overhead Expenses - AO disallowed the Parent Company Overheads as Head office expenditure by treating the same as expenditure under section 44C - CIT(A) deleted the addition holding that the addition made in the earlier years was due to the fact that the commercial production was not started and the AO has not given any reasons as to how the provisions of 44C are applicable - HELD THAT:- AO has not given the reasoning as to how these expenses are hit by the provisions of section 44C and has simply disallowed these expenses on the basis of the stand taken by the Assessing Officer in earlier assessment years.
Disallowance of Deduction u/s 80IB(9) - deduction was not allowed by the AO on the sole reason that such claim was not claimed in the return of income and no adverse observations was made by the AO on the veracity of the claim of the Appellant u/s 80IB(9) - HELD THAT:- We are in agreement with the finding of the ld. CIT(A), the AO has simply commented that since deduction has not been claimed in the return of income, it cannot be allowed. This argument is fallacious as when there is no taxable income in the return, then how can the appellant suppose to claim such a deduction. Once the income of the assessee is turns positive (instead of loss) then the deduction eligible should also be allowed in principle. Hence, the appeal of the revenue on this ground is dismissed.
-
2023 (1) TMI 1283 - ITAT JODHPUR
Exemption u/s 11 - CIT(Central) jurisdiction to pass the order of cancellation of registration of the assessee Trust u/s 12AA(3) and 12AA(4) - assessment of trust - as per assessee main object of the society is to impart education - whether society solely exists for charitable purposes and not for the purposes of profit? - whether the cancellation will operate from a retrospective date? - HELD THAT:- As there has to be some order in writing from higher authorities i.e. from Chief Commissioner of Income Tax (Exmp.) Delhi or CBDT in writing and an opportunity of being heard is to be given to the assessee before transferring the case whereas all these are absent in the present case and nothing has been demonstrated by the department.
Sec. 127 of the Act empower to transfer cases among Assessing Officers but not to Commissioners of Income Tax as CIT is not an Assessing Officer. In our view, to pass an order u/s 12A for registration or cancellation is not within the jurisdiction or power of an Assessing Officer. Hence registration u/s. 12A can be withdrawn only by the ‘Prescribed Authority’ who has been empowered to grant the same and by the Notification dated 22.10.2014 the ld.CIT(Exmp.) has empowered for the same, hence the Pr.CIT (Central) cannot cancel the same.
In assessee’s case, the case u/s 127 was transferred to the Central Circle for limited purpose of Co-Ordinate assessment admittedly which do not mean that the Section 12A proceeding has been transferred to the Pr. CIT(Central) automatically, when both the proceedings are separately or independent and also has to be done or conducted by the different rank Authorities. More particularly when for the purpose of Exemption cases or 12A registration a Separate Commissioner of Income Tax has been Authorized for whole of Rajasthan by the CBDT by its Notification dated 22.10.2014.
Also Pr.CIT (Central) cancelled such approval from A. Y. 2014-15, though the assessee has already assessed from A.Y. 2014-15 u/s 143(3)/148 of the Act. It is also settled legal position of law that Registration cannot be cancelled from retrospective effects.
Thus we are of the opinion that in the present case the ld. Pr.CIT(Central) has no jurisdiction to pass the impugned order. Accordingly, we quash the same. Even otherwise we are also of the view that no retrospective cancellation could be made as neither in the Sec. 12AA(3) nor in Sec. 12AA(4) it has been provided or is seen to have explicitly provided to have a retrospective character or intend. Therefore, without a specific mention of the amended provisions to operate retrospectively no cancellation for the past years could be ordered - Decided in favour of assessee.
-
2023 (1) TMI 1282 - ITAT BANGALORE
Disallowing relief u/s 90 - non-filing of Form No. 67 on time - assessee filed Form No. 67 within the end of the relevant AY whereas the assessee has not filed the same within the due time specified - HELD THAT:- As noted that during the impugned AY the assessee is a resident and he is a software professional and earned salary and professional income from India and Germany and covered under DTAA on these overseas income. The assessee filed return of income but did not file Form No. 67 within due date as per the Rules. The assessee filed Form No. 67 on 02.04.2021 which is much before the CIT (A)’s order.
As decided in Vinodkumar Lakshmipathi [2022 (10) TMI 87 - ITAT BANGALORE] rule 128(9) of the Rules does not provide for disallowance of FTC in case of delay in filing Form No. 67; (ii) filing of Form No. 67 is not mandatory but a directory requirement and (iii) DTAA overrides the provisions of the Act and the Rules cannot be contrary to the Act. We direct the AO to give credit for foreign tax as per Form No. 67 filed on 02.04.2021 after due verification as per law.
Thus we direct the AO to give credit for foreign tax as per Form No. 67 filed on 02.04.2021 after due verification as per law. Appeal of the assessee is allowed for statistical purposes.
-
2023 (1) TMI 1281 - DELHI HIGH COURT
TDS on payments made to local authorities, including New Okhla Industrial Development Authority [“NOIDA ”] - order passed u/s 201(1)/201(1A) - HELD THAT:- Although the petitioner-bank has slept over its rights, we are prima facie of the view that since public money is involved, and because both the petitioner-bank and the NOIDA fall in the category of entities which deal with public funds, the respondents/revenue could consider repaying the money to the petitioner-bank for onward transmission to NOIDA.
We may note that the NOIDA has been following up the matter, despite which, the petitioner-bank did not act with alacrity. Given this position, NOIDA may have a case for recovering the interest from petitioner-bank if we were to grant the relief, as sought in the writ petition.
Insofar as this writ action is concerned, our remit is limited to the relief sought by the petitioner-bank, which as noted above, is for issuance of a direction to quash the order dated 28.02.2013.
Revenue, says that he will return with instructions. List the matter on 27.01.2023.
-
2023 (1) TMI 1280 - ITAT MUMBAI
Addition u/s 68 - transaction/trading of the scrip (M/s. VAS) was speculative in nature and due to rigging, the price of the scrip was artificially increased or decreased to accommodate beneficiaries of Long Term Capital Gain (LTCG)/loss /Short Term Capital Gain/loss - assessee brought to the notice of the AO that he is a non-resident Canadian Citizen of Indian Origin and has appointed a Professional Investment Advisor and Portfolio Manager recognized by the BSE and NSE. And that the investments/trading are carried out by the portfolio manager on behalf of assessee and as such assessee has no knowledge of this company M/s. VAS and therefore has no intention of doing the alleged money laundering
HELD THAT:- This is a case wherein the Maxim- Res Ipsa loquitor-applies- meaning “Things speaks for itself”. Looking at the over-all facts it can be presumed that assessee has not indulged in any nefarious activity as alleged in the DDIT information of persons who traded in the shares of M/s. VAS. She is a Canadian Citizen of Indian Origin has suffered heavy losses to the tune of more than a crores of Rupees, and has made investment through Professional Portfolio Manager (recognized by BSE & NSE), so it cannot be presumed that she would indulge in money laundering for a mere short term capital gain of Rs.93,597/- (which has been offered to taxation) in the ROI filed on 31.07.2012.
On the facts noted supra it is presumed that the assessee was an innocent/gullible regular investor in share market and has burned her fingers and made a modest gain of Rs.93,597/- which has been taxed. And the AO erred in again taxing on the basis of general investigation report which does not have any material against the assessee.
It would be apt to remind ourselves that the maxim falsus in unus false in Omnibus” meaning ‘false in one thing false in everything’’ has no application in India. Merely because some person misused the share market to rig certain shares in the share market for nefarious purpose, cannot be the ground to draw adverse view against innocent regular investors like assessee. So we decline to interfere with the action of the Ld. CIT(A) who rightly deleted the addition made by the AO without an iota of evidence against the assessee and without being part of any wrong doing. So the revenue appeal is dismissed.
-
2023 (1) TMI 1279 - SUPREME COURT
Condonation of delay in filing first appeal - only reason assigned by the appellant for the delay of 254 days in filing the First Appeal was that he was not having sufficient funds to pay the court fee - sufficient reasons for delay or not - Suit for specific performance - CHELD THAT:- In Mannan Lal [1970 (4) TMI 157 - SUPREME COURT], this aspect was dealt in rather detail, where the Court referred to several decisions of different High Courts on interpretation of Section 149 CPC and Section 4 of Court Fees Act. It particularly referred to the decision of the Allahabad High Court which is S. Wajid Ali v. Mt. Isar Bano Urf Isar Fatima & Ors. [1950 (9) TMI 23 - ALLAHABAD HIGH COURT] wherein it was held that a court has to exercise its discretion for allowing a deficiency of court fees to be made good but once it was done, a document was to be deemed to have been presented and received on the date when it was originally filed, and not on the date when the defects were cured.
There are no case at hand where the appellant is not capable of purchasing the court fee. He did pay the court fee ultimately, though belatedly. But then, under the facts and circumstances of the case, the reasons assigned for the delay in filing the appeal cannot be a valid reason for condonation of the delay, since the appellant could have filed the appeal deficient in court fee under the provisions of law. Therefore, it is found that the High Court was right in dismissing Section 5 application of the appellant as insufficient funds could not have been a sufficient ground for condonation of delay, under the facts and circumstance of the case. It would have been entirely a different matter had the appellant filed an appeal in terms of Section 149 CPC and thereafter removed the defects by paying deficit court fees. This has evidently not been done.
This is a fit case which calls for interference. The facts of the case are that one, M/s. Himalayan Ski Village Pvt. Ltd. had entered into an ‘Agreement for Sale’ with an agriculturist/landowner of Himachal Pradesh, for sale of his agricultural land. Now the admitted position in the State of Himachal Pradesh is that under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (for short ‘1972 Act’), only an agriculturist, which is defined under Section 2(2) of the 1972 Act, can purchase land in Himachal Pradesh, which would mean a landowner who personally cultivates his land in Himachal Pradesh.
In the present case the assignment is not valid as there was no prior consent or approval of the seller before the assignment. In the absence of such a condition and in lieu of the fact that before assignment of its rights to the plaintiff/Appellant herein no permission of the seller was obtained, there was no question of granting a decree of Specific Performance in favour of the plaintiff. Consequently, this is not a case which calls for interference.
Appeal dismissed.
-
2023 (1) TMI 1278 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Validity of demand notice issued in terms of Section 8 of IBC - case of appellant is that the ‘Demand Notice’ was defective because it was sent by Jignesh Ajit Ganatra, who was subsequently appointed as IRP by the impugned order and the said IRP was a related party in terms of Section 5(24)(h) of the Code - HELD THAT:- A close scrutiny of the Section 5(24)(h) of IBC would show, firstly, that it relates to the Corporate Debtor and not to the Operational Creditor and secondly the Appellant was to lead evidence that the Director, Partner or Manager was accustomed to act on the directions or instructions of the said IP. Therefore, Section 5(24)(h) of the Code is not at all applicable to the facts and circumstances of the present case and thus the arguments raised in this regard, is hereby rejected - the provision is not applicable because the dispute is between two corporate entities and not in respect of the individuals.
Whether an application under section 9 of the Code cannot proceed in view of fact that the principal amount has already been paid and only the component of interest is remaining? - HELD THAT:- It is to be seen at the time of the threshold when the application is filed under Section 9 of the Code as to whether it is pertaining only to the component of interest - the second contention is hereby rejected.
It is pertinent to mention that this court was of the view that in order to help the Corporate Debtor to remain a going concern, some time be provided to the Corporate Debtor for the purpose of settling its ‘debts’ before the CoC is constituted but despite taking so many dates and even on 06.01.2023, a specific order was passed but the Appellant has failed to consolidate funds for the purpose of discharging his liability not only towards the Respondent who is the Operational Creditor but also towards various Interveners who had filed applications during the pendency of this Appeal.
There are no merit in the present appeal and the same is hereby dismissed.
-
2023 (1) TMI 1277 - MADRAS HIGH COURT
Maintainability of petition - petition disposed off on the ground that Appellant ought to have filed an Appeal before the Appellate authority and liberty was also given to him to file such Appeal before the Appellate authority within a period of thirty days - HELD THAT:- There are merit in the submission of the learned Senior Counsel appearing for the Appellant inasmuch as the impugned order of assessment has been made by the assessing officer without even applying his mind to the submission of the appellant, in particular to the order of the Tribunal holding that mere sales of goods on the same day by itself would not be conclusive in determining the character/ nature of the transfer from one state to another as Stock transfer (or) sale. The above order of the Tribunal ought to have been dealt with by the assessing officer. Failure to do so would vitiate the order. We make it very clear that we have not examined the decision but only decision making process which we find suffers from the infirmity of non application of mind to relevant aspects/factors raised by the assessee/appellant.
The order of the learned Single Judge dated 06.10.2017 is set aside and the matter is remanded back to the authority concerned.
........
|
