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Showing 81 to 100 of 1278 Records
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2014 (11) TMI 1201 - COMPANY LAW BOARD MUMBAI BENCH, MUMBAI
Oppression and mismanagement - illegal allotment of shares - maintainability of petition - time limitation - lack of qualification in terms of the provisions contained in Section 399 of the Act - HELD THAT:- Respondent Nos. 1 to 8 have failed to discharge their onus to prove the fact that the consideration was paid to the Petitioners for transfer of the shares-in-question, as contended by them. It is further an established law that transfer of shares without consideration is unlawful, ultra vires and void. In addition to the above, it is pertinent to mention here that, the Petitioners have filed a copy of Register of Members of the company as Annexure 'A-6' to the Petition, which clearly shows that the Petitioners' name still exist in the Register of Members of the Company. The Annual Returns filed by the Respondents with the ROC further confirm the said fact. Lastly, non-compliance of Section 108(1) of the Act clearly establishes that the Petitioners never transferred or intended to transfer the shares held by them in the Company - the Petitioners are eligible to file the present petition under Section 397/398 read with Section 402 of the Act in terms of the provisions contained in Section 399 of the Act.
Whether the Petition is barred by law of limitation? - HELD THAT:- According to the Ld. Counsel, to the Respondents did not file the Annual Statement with the ROC timely and as soon as the Petitioners came to know about the wrong doings deliberately committed by the Respondents depriving the Petitioners' right as the shareholders, the Petitioners immediately, without any delay, approached the Court for redressal of their grievances and hence, the questions of in-ordinate delay and laches on their part, do not arise as contended by the Respondents.
It is established that the Respondents actions are harsh, unfair and prejudicial towards the Petitioners. They lack in probity. There are series of acts of oppression as narrated above, the effect of which is still continuing on the rights of the Petitioners being shareholders of the Company. It is an established law that once the CLB gives a finding that the acts of oppression have been established, winding up of the Company on just and equitable grounds becomes automatic and the reliefs sought under Section 402 of the Act could be granted - In the present petition, in view of the proved arts of oppression and mismanagement in the conduct of the affairs of the Company, though it is a fit case for winding up of the Company, the winding up order would clearly prejudice the interest of the Petitioners and the other shareholders.
It is the right of the shareholders to receive notices of General Body Meetings and if a Company deliberately does not sent notices the shareholders have right to complain of oppression and mismanagement. In this case, the complaint of non receipt of notices by the Petitioners, being the shareholder-members of the Company, is a valid complaint, and therefore the Meeting held without notices to the Petitioners has to be declared as invalid, as also the Resolutions passed thereat. In my opinion, the Petitioners are right in contending that the allotment of additional shares was made only with an oblique motive of ensuring the entire control over the affairs of the Company to the exclusion of the Petitioners.
The main allegations of the Petitioners are found to have been established that the EOGM held on 30/5/2005 is invalid on account of non-receipt of the Notices thereof by the Petitioners and consequently the decision to increase the authorized share capital is also invalid. Once the increase in the authorized share capital is invalid, then the consequent allotment of the additional shares is also invalid. It has also been established that the allotment of additional shares was only with a view to push the Petitioners from minority to super-minority and thereafter further transfer of shares to their own persons by the Respondent No. 2 was with a purpose to get majority of members to enable him to make decisions according to his choices, I am, therefore, of the view that the EOGM held on 30/5/2005 and the Resolutions passed thereat deserve to be declared as null and void.
The Petitioners have successfully established their allegations regarding the acts of oppression and mismanagement.
Application disposed off.
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2014 (11) TMI 1200 - ITAT MUMBAI
Treatment of income from manufacturing services as income from other sources - Addition on the ground that there was no involvement of the Appellant in the manufacturing activity - Treatment of lease rental as income from other sources - allowability of the claim of expenditure against the said receipts - HELD THAT:- On perusal of the said orders of the Tribunal [2013 (7) TMI 1130 - ITAT MUMBAI] and [2014 (7) TMI 1300 - ITAT MUMBAI] we find the ITAT adjudicated the identical issues and remanded the grounds to the file of the AO for a fresh adjudication. Respectfully following the orders of the Tribunal (supra) as well as following the principle of consistency, we remand the grounds raised in the present appeal also with identical directions given by the Tribunal in the AYs 2006-2007 and 2007-2008 to the file of the AO for adjudicating them afresh. Accordingly ground raised by the assessee are allowed for statistical purposes.
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2014 (11) TMI 1199 - TELANGANA AND ANDHRA PRADESH HIGH COURT
Auction - mortgaged property - sale of the mortgaged property owned by private individuals - Whether the sale of the mortgaged property owned by private individuals can be brought before the learned Company Judge or in Writ Court for scrutiny? - HELD THAT:- Any transfer of assets of the company is effected in violation of Sections 531 & 531A is void altogether incurably, but it is void under Section 537 if it is done without leave of the Company Court - Here, admittedly, no leave of the Company Court was obtained. In this context, we examine the contentions of the learned Senior Counsel Mr. S. Ravi that no leave is required, as jurisdiction of Company Court is ousted in view of the provisions of Sections 13, 37 & 35 of the SARFAESI Act.
Whether the Company Court can decide the question raised with regard to the invalidity of sale in view of provisions of the SARFAESI Act read with Recovery of Debts due to Banks and Financial Institutions Act, 1993? - HELD THAT:- It is true that Section 34 mentioned the words Civil Court (not apparently company court), but after winding up order is passed by virtue of the provisions of Section 446 (2) of the Companies Act, the Company Court exercises jurisdiction of the civil court. So, essentially, the company court becomes civil court. What is important is not the nomenclature of the Court, but power and functions exercised by that Court. In view of discussions above, accepting argument of Mr. S. Ravi and rejecting contention of the learned counsel for the respondent and Official Liquidator, we hold that the company court has no jurisdiction to deal with the issues arising out of action of secured creditor under Section 13 of SARFAESI Act.
Whether the provisions of Sections 531, 531A & 537 of the Companies Act, 1956 have any manner of application with regard to sale of securities conducted under the SARFAESI Act? - HELD THAT:- It will appear from Section 13(1), as quoted above, it clearly provides that without intervention of the Court or Tribunal action can be taken for sale of securities, whereas the provisions of Section 537 of Companies Act requires leave of Company Court - this is apparent inconsistency in two competing provisions in two different Acts on the same subject - no leave is required under Section 537 of the Companies Act, moreover jurisdiction of the Company Court is also ousted.
Whether the provisions of Section 531 & 531A of the Companies Act will be applied or not in this case? - HELD THAT:- It is clear from sub-section (6) the moment action taken under sub-section (4) by the secured creditor or any manager on his behalf of the secured creditor for transfer all rights shall vest in the transferee in relation to the secured assets. In other words, if action taken under Section 13(4) is found to be lawful and valid in accordance with SARFAESI Act, no other legal provision can invalidate it. Whereas Sections 531 & 531A provide otherwise if any transfer including sale is effected in violation thereof the same is invalid and void. Thus it appears that there has been glaring inconsistency naturally, we are constrained to hold that the provisions of Sections 531 & 531A have no manner of application and the same do not apply in case of valid sale undertaken under the SARFAESI Act and the Rules framed thereunder.
Whether the sale can be held invalid because of the alleged non-compliance of the mandatory provisions of the Rules framed under the SARFAESI Act? - HELD THAT:- All materials namely advertisement, conditions of sale and other things are not produced before us also. Therefore we do not like to decide this issue conclusively nor do we accept such decision of the learned Trial Judge in absence of such materials and also for the reasons stated hereunder.
Thus, granting relief to the auction purchaser as prayed for in the writ petition is not sustainable under the law - petition dismissed.
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2014 (11) TMI 1198 - HIMACHAL PRADESH HIGH COURT
Urban land chargeable to wealth tax - Tribunal held that agricultural land within the municipality are subjectable to Wealth Tax being a part of the assets as defined under Section 2(ea) of the Wealth Tax Act - Whether "urban land" would not include land, on which construction of a building is not permissible under any law for the time being in force in the area ? - HELD THAT:- The land of the assessee is agricultural land though situated in the municipal limits of M.C. Shimla. No construction is permissible in the forest land without the permission of the Municipal Corporation Building Bye-laws and Town and Country Planning Act.
The intention of the legislature appears to be that the land which falls within this exception would have to be excluded from the ambit and scope of the expression "urban land".
Thus, the land owned and possessed by the assessee would not fall within ambit of the Section 2(ea)(b) and the learned Authorities were also not right in coming to the conclusion that the construction was possible on the lands covered by the trees. The land on which the trees are standing cannot be treated at par for the purpose of market value with the land on which the construction is possible. The land on which the trees are standing, construction is not possible without seeking permission from the competent authorities and thus the market value of this land would be lower. The substantial questions of law are answered accordingly.
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2014 (11) TMI 1197 - ITAT COCHIN
Disallowance u/s 40(a)(ia) for non deduction of TDS - Assessee paid interest on the deposits - as per assessee once the recipient entities are entitled for exemption u/s 10(23C) the assessee is not liable to deduct tax - HELD THAT:- The contention of the assessee that provisions of section 40(a)(ia) is applicable only in respect of the amounts remains to be paid as on the last day of the financial year is not accceptable. This Tribunal had an occasion to examine an identical set of facts in Shri Thomas George Muthoot & Ors [2015 (9) TMI 323 - ITAT COCHIN] Section 40(a)(ia) would cover not only to the amounts which are payable as on 31st March of a particular year but also which are payable at any time during the year. Of course, as long as the other requirement of the said provision exist.
Judgments of the Calcutta High Court in Crescent Export Syndicate (supra) and the Gujarat High Court in Sikandarkhan N Tunvar (supra) are squarely applicable to the facts of the case. We do not see any infirmity in the orders of the lower authorities. Accordingly, the orders of the lower authorities are confirmed. - Decided against assessee.
Payment was paid to the fund which was approved u/s 10(23C)(iv) - HELD THAT:- The recipient entities are required to file the returns of income even though they are approved u/s 10(23C) by the concerned Chief Commissioner wherever the income exceeds the taxable limit without giving effect to provisions of section 10(23C) of the Act. Therefore, for computation of total income, the recipient entity may exclude the income which is applied for charitable purpose as per the object of the fund / institution and the conditions imposed by the Chief Commissioner. Hence, it is a matter factually to be verified in each and every case and there cannot be a total exemption.
In the case before us, only in respect of one recipient, viz. Kerala Building & Other Constructions Workers Welfare Board the assessee has filed copy of the approval received from the Chief Commissioner. In respect of other recipient funds / board the copies of the approval are not filed. Therefore, it needs to be verified. Accordingly, the orders of lower authorities are set aside only for the limited purpose of examining whether the recipient concerns / boards are approved u/s 10(23C)(iv) of the Act by the Chief Commissioner / DIT. Thereafter, the assessing officer shall find out whether the interest is taxable in the hands of the recipient funds / board or not and then decide the issue in accordance with law after giving reasonable opportunity of hearing to the assessee.
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2014 (11) TMI 1196 - ITAT AHMEDABAD
Penalty u/s 271(1)(c) - short term capital gains earned by the assessee on the sale of land was not disclosed in the original return of income but was declared by the assessee in the revised return of income - HELD THAT:- Assessment case of the assessee is different from the penalty imposed on account of concealment of income or filing inaccurate particulars of income and that certain disallowance/addition could legally be made in the assessment proceeding on the preponderance of probabilities, but no penalty could be imposed u/s 27l(1)(c) on the preponderance of probabilities and Revenue has to prove that the claim by the assessee was not genuine or was inflated to reduce its tax liability.
Before us, no material has been brought on record by the Revenue to demonstrate that the explanations and submissions made by the assessee were false. Before us, Revenue has also not brought on record any binding contrary decision in its support. We are of the view that in the present case no penalty u/s 271(1)(c) is leviable and therefore we direct its deletion. Thus this ground of Assessee is allowed and in the result the appeal of the Assessee is allowed.
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2014 (11) TMI 1195 - RAJASTHAN HIGH COURT
Addition u/s 68 - benefit of peak credit automatically granted to the assessee - HELD THAT:- This court in the case of Commissioner of Income Tax Vs. Tyaryamal Balchand [1986 (4) TMI 14 - RAJASTHAN HIGH COURT] after relying on several judgments, also upheld the finding about peak credit theory. This Court in CIT Vs. Ishwardas Mutha [2002 (4) TMI 9 - RAJASTHAN HIGH COURT] also accepted the contention to take into account, the peak credit. When any amount is paid, later withdrawn from the books, would be available for recycling and rotation, unless otherwise established as invested elsewhere by the Revenue.
We hold the assessee was entitled to the benefit of peak credit which ought to have been allowed instead of making separate addition of entire amount. However, we may observe that the Assessing Officer has to come to a definite finding that the amount withdrawn was used by the assessee in any other expenditure or investment. If the Assessing Officer comes to a finding that withdrawn amount was used or spent by the assessee for any other investment or expenditure than the benefit of peak of such credit, in such circumstances, may not be available. - Decided in favour of assessee.
Addition u/s 69 - all unexplained expenditure has to be added to the income of the assessee for such financial year - HELD THAT:- As assessee does not press the question quoted above and thus this question is decided against the assessee.
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2014 (11) TMI 1194 - BOMBAY HIGH COURT
Transfer pricing adjustment - difference between the ALP at which the equity shares had to be issued and the prices at which the equity shares have actually been issued - income chargeable to tax - Whether issue of shares at a premium by the Petitioner to its non-resident holding company gave rise to any income from an admitted International Transaction? - HELD THAT:- The issue arising in the present Petition stands concluded in favour of the Petitioner by virtue of Vodafone IV. [2014 (10) TMI 278 - BOMBAY HIGH COURT] stating neither the capital receipts received on issue of equity shares to its holding company, a non-resident entity, nor the short-fall between the so called fair market price of its equity shares and the issue price of the equity shares can be considered as income within the meaning of the expression as defined under the Act.
We set aside the order of TPO to the extent it seeks to bring to tax the shortfall in the consideration received on issue of shares when compared to the ALP at which the shares ought to have been issued and the consequent deemed interest on the alleged shortfall, is quashed and set aside. As a consequence, Draft Assessment Order is also set aside to the extent the order of TPO is set aside. - Decided in favour of assessee.
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2014 (11) TMI 1193 - ITAT MUMBAI
Rejection of books of accounts - Held that:- Tribunal in assessment year 2008-09, being the year of search, did not agree with the view entertained by AO and accordingly deleted the income estimated by rejecting the books of account. A.R submitted that the additions made in all the three cases under consideration in AY 2008-09 has been deleted by the Tribunal on identical reasoning. The year under consideration is the year succeeding the year of search. AO has not brought any other material on record except placing reliance on the assessment orders passed in AY 2008-09, which has since been reversed by the Tribunal. AO was not justified in rejecting the books of account and estimating the income. Accordingly, we confirm the action of the CIT(A) in all the three cases.
Disallowance u/s 40(a)(ii) - assessee submitted that the assessee have already made disallowance u/s 40(a)(ii) in their respective returned incomes and hence no further disallowance is called for - Held that:- We do not find any merit in the ground raised by the revenue in this regard. However, if the AO finds that any of the assessee did not make the said disallowance in the returned income, the AO is free to make the said disallowance after affording the opportunity of being heard to the Assessee. - Appeals filed by the revenue are dismissed.
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2014 (11) TMI 1192 - KARNATAKA HIGH COURT
Entitlement to claim a deduction under Section 36(1)(vii) in respect of bad debts written off - Held that:- Assessing Authority has not disputed the fact that the assessee’s claim for bad debt under Section 36(1)(vii) does not represent those debt in which deduction has been claimed under Section 36(1)(vii) out of the provision for bad and doubtful debts. The law laid down by the Apex Court in the case of the assessee itself (2014 (11) TMI 179 - KARNATAKA HIGH COURT) is attracted and the first substantial question of law is to be answered in favour of the assessee and against the revenue as rightly held by the Tribunal. - Decided in favour of the assessee and against the revenue.
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2014 (11) TMI 1191 - ITAT INDORE
Addition of renovation expenditure - unexplained investment on renovation of house is liable to assessed to tax - Held that:- Once the house does not belong to the Assessee, there is no evidence found during the course of the search that the Assessee has invested in the renovation of the house, u/s 69 the onus is on the Revenue to prove that the Assessee has made the investment which are not recorded in the books of accounts, if any, maintained by the Assessee.
The house where the renovation has been carried out does not belong to the Assessee. The papers and documents on the basis of which the addition has been made has been found from the house in which not only the Assessee, but the family of the Assessee was putting up. The renovation was to be carried out by the person to whom the house belonged. No cogent material or evidence has been brought on record even on the basis of the materials seized that the expenses for renovation have been incurred by the Assessee - onus lies on the Revenue by making the addition to prove that the Assessee had made the investment - if any addition has to be made for the renovation of the house, same should be made in the hands of the mother of the Assessee as well as the son of the Assessee to whom the house belongs. We, therefore, delete the addition - Decided in favour of assessee.
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2014 (11) TMI 1190 - KARNATAKA HIGH COURT
Long term capital gain exemption u/s 54F - Held that:- Section 54F(4) is pari materia with Section 54(2). Therefore, what follows is that when the statute prescribes expressly when the capital gain is to be offered to tax. It shall be treated accordingly. If the said amount is deposited in a Nationalized Bank as required under law, in capital gain account the deposit is construed as investment in new asset.
Subsequently if the amount deposited is not utilized the entire capital gain or the unutilized capital gain chargeable u/s 45 is to be offered for tax only in the previous year in which the period of three years from the date of the transfer of the original asset expires. Therefore, assessing the said amount for the assessment year 2005-06 when the property is sold on 28-04-2005 is erroneous. Though the assessee purchased a site on 26-09-2005, he could not put up construction because of business exigencies and thus sold the property on 6-10-2006. Immediately thereafter he offered the said amount for tax in the assessment year 2007-08. The authorities erred is assessing the income of the assessee for the assessment year 2005-06 in respect of the capital gain is contrary to law and therefore, it requires to be set aside. - Decided in favour of the assessee.
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2014 (11) TMI 1189 - ITAT BANGALORE
Validity of the assumption of jurisdiction u/s 153A - existence of conditions for issuance of warrant u/s 132A - Held that:- Additional grounds raised by the assessee, the AO has clearly not only not rebutted the contentions of the assessee but also has remained silent as to whether the conditions for issuance of warrant of search existed at all. In such circumstances, CIT(A) ought to have at least satisfied herself about the existence of conditions before concluding that that the jurisdiction has been validly exercised by the AO in view of the judgment of the jurisdictional High Court in the case of Ramaiah Reddy (2010 (9) TMI 862 - KARNATAKA HIGH COURT) on which the assessee has placed reliance upon. All the subordinate courts and authorities are bound by the decision of the jurisdictional High Court and has to follow the same in its letter and spirit.
We deem it fit and proper and remand the appeals for all the assessment years back to the file of the CIT(A) for proper adjudication of the additional ground of appeal relating to the validity of the jurisdiction u/s 153A as well as the existence of conditions for issuance of warrant u/s 132A of the Act. The other grounds of appeal raised by the assessee with regard to the merits of the disallowance of the addition made by the AO and as confirmed by the CIT(A) are not adjudicated at this stage and the assessee shall be at liberty to agitate the same in case the CIT(A) decides the ground of jurisdiction against the assessee - Appeals of the assessee are treated as allowed for statistical purposes
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2014 (11) TMI 1188 - ITAT JAIPUR
Addition on account of adjustment of Arm's length price of the international transaction on payment of royalty - application of CUP method - MAM selection - Held that:- DR could not justify the application of CUP method to Arms Length working.
The products manufactured by the appellant were developed from technology support provided by the AE, it would not have been possible so without the continuous AE support. The rights of access to the ongoing technical support and development of new products received by the appellant were clearly provided in the agreements entered into with the AE.
The cost benefit test as worked out by the TPO was not based on proper appreciation of the facts and thus CUP method applied by the AO / TPO was not justifiable. The judicial citations relied on by ld. CIT(A) as well as further judgments relied on by the assessee including Hon'ble High court in the case of Delhi EKL Appliances Ltd. (2012 (4) TMI 346 - DELHI HIGH COURT) support the view taken by ld. CIT(A). - decided against revenue
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2014 (11) TMI 1187 - GAUHATI HIGH COURT
Area based exemption - development of industries in the Northeastern region, which continued to be the backward region - exemptions in respect of Sales Tax and Municipal Tax - doctrine of promissory estoppel
Held that:- Almost all the industry sectors in these areas are paying maximum duty through PLA and difference with all India ration is quite alarming. The above analysis coupled with the details of cases booked by DGCEL and representation of industry associations further prove that there appears to be a general tendency to bring raw materials on non-duty paid invoices or to show bogus production or bogus purchase to maximize payment of duty in cash. In fact, when other units in the country avails CENVAT Credit of say 68% of total duty (32% in PLA), there cannot be any plausible reasons to a vail credit to say 24% (76% in PLA) by units in these areas. This analysis clearly brings out a fact that misuse of excise duty concessions is rampant and it is across the industry.
Misuses are on account of administrative failure to tackle evasion. However, when the trend of evasion is seen across the industry, such misuse cannot be handled with any amount of enforcement and the only available option is to think of modifying the scheme itself. Moreover, investigation of such cases is very time consuming as each purchase and sale transaction along with transport records, which involve a large number of parties at different part of the country, is required to be investigated.
The State does not dispute the Industrial Policies of 1997 and 2007 and also the grant of concession pursuant to the said notifications. However, the dispute revolves round the justification for issuing the modified notifications, in question. It is to be seen whether any superior public interest is evident, which prompted the Government to issue the modified notifications - The instances of misuse noticed in the inquiry are hardly consists of about 41 cases and most of the cases, as per Annexure-A, are still under adjudication, it is not finally decided whether the industries concerned in the Northeastern region are guilty of any misuse.
The scheme of the policy and the notifications insist that there should be payment of the excise duty and thereafter, they should apply for refund. The Department, at the time of refund, can very well thoroughly scrutinize all these aspects regarding misuse and malpractice alleged. Therefore, the allegation that for the instances of malpractice stated above, there has to be a partial withdrawal of concessions, does not appear to be justifiable ground.
Doctrine of promissory estoppel - Held that:- The State has failed to show any prejudice to the superior public interest and that there is also no contra legislation in this regard. The respondents and the petitioners have all set up industries allured by the promise of tax concessions and made substantially investments. The setting up of an industry an d commencement of production requires a thorough compliance of formalities and c heck up by every Department. The industries, in question, have complied with all the requirements of law and have set up industries and all of them have started production - Within a span of a year after the issuance of notification of Industrial Policy of 2007, the change in the stand to withdraw the concessions does not appear to be sound and proper and the grounds made out are so feeble and fragile which do not offer a concrete objective material for this Court to believe that really superior public interest prompted the issuance of modified notifications.
Petition allowed.
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2014 (11) TMI 1186 - SC ORDER
Penalty u/s 11C - mandatory Penalty - assessee Paid the duty amount prior to the issuance of show cause notice - equivalent to 25% of the duty amount - Held that:- Some of petitions delinked - fr rest of petitions, if there is any Substitution application, the same is allowed - delay condoned in filing and refiling SLP - Appeal dismissed.
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2014 (11) TMI 1185 - CALCUTTA HIGH COURT
Winding up petition - substantial delay in execution of the work by the petitioner - Held that:- Company’s defence raised in the affidavit-in-opposition is substantially at variance from the company’s defence alleged in its reply to the statutory notice. Whereas in the reply to the statutory notice the company contended that no extra work was awarded to the petitioner, in its affidavit-in-opposition the company admitted that additional work was, in fact, awarded to the petitioner. Company contends that there was substantial delay in execution of the work by the petitioner for which the company is in the process of filing a suit claiming damages, however, till date no such suit has been filed. Also significant that the company’s cheques amounting to ₹ 92,38,399/- were dishonored upon presentation. The company claims that after the cheques were dishonored a sum of ₹ 1,32,81,250/- was paid by it to the petitioner but it is not clear whether such payment was wholly in respect of the contract for supply of fixture and furniture or whether part of it was in respect of the ID Works contract.
In case such deposit is made, the Registrar, Original Side will invest the sum in a fixed deposit in a nationalized bank of his choice. In case, the deposit is not made as directed, the winding up petition shall stand admitted and the petitioner will be at liberty to publish advertisement once in ‘The Telegraph’, English edition and once in ‘Ananda Bazar Partika' within four weeks from the date of admission of this winding up petition. The deposit is made by the company as directed above and the petitioner does not file a suit within four weeks, thereafter, the winding up petition shall stand dismissed and the company will be at liberty to withdraw the amount deposited by it with the Registrar, Original Side of this Court. Let this matter appear under the heading “adjourned motion” in the monthly list of January, 2015 before the Company Court for further orders.
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2014 (11) TMI 1184 - MADHYA PRADESH HIGH COURT
Winding up petition - crystallization of amount due - proof of bonafide dues - Held that:- In the instant case, the petitioner has neither made any averment nor has placed any document on record to demonstrate that the respondent is commercially insolvent. On the other hand, from the documents on record, it is evident that the respondent is a profit making solvent company and is in a position to meet its debt as and when it arises. The petitioner has failed to show that the respondent has omitted to pay the debt without reasonable excuse and conditions of insolvency in the commercial sense exist.
The Company Court exercises in equitable jurisdiction. It is well settled in law that a winding up petition is not legitimate means of seeking to enforce for payment of dues which is bonafide disputed by the respondent.
It is evident that the amount due in the instant case has not crystalized and there is a bonafide dispute with regard to liability of the respondent to pay the amount in question to the petitioner. The petitioner has also failed to prove that the condition of insolvency in the commercial sense in respect of respondent exists. For the reasons aforementioned, no case for winding up of the respondent is made out.
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2014 (11) TMI 1183 - TELANGANA & ANDHRA PRADESH HIGH COURT
Assessment of Non-Performing Assets - accrual of income - Held that:- It appears, for the assessment years 2007-08 and 2008-09, the Tribunal held in favour of the assessee. In the impugned judgment, the decision of the Hon’ble Supreme Court in the case of SOUTHERN TECHNOLOGIES LIMITED v. JOINT COMMISSIONER OF INCOME TAX, COIMBATORE [2010 (1) TMI 5 - SUPREME COURT OF INDI ] was not considered by the Tribunal. According to us, consideration of that decision is also required. However, learned counsel for the appellant submits that in the case of Southern Technologies Limited (supra), the Hon’ble Supreme Court held in favour of the appellant. We think this can be considered by the assessing authority in terms of the direction of the Tribunal.
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2014 (11) TMI 1182 - GUJARAT HIGH COURT
Rectification of Mistake/Recall of order - CENVAT credit - invoices raised by unknown/nonexisting firms - Held that:- At the first instance, when this Court is expected to examine only substantial question of law, we refuse to undertake such an exercise. Instead, we leave it to the Department to approach the Tribunal either for rectification or for recalling the order by pointing out relevant facts and the reason why the departmental representative might have been misled into giving such a concession.
The concession on facts or law given by the legal representative of a party, may not bind the party. However, entertaining the dispute of the Department before us would deprive us of the analysis and opinion of the Tribunal on the comparison of facts - appeal disposed off.
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