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Showing 81 to 100 of 2022 Records
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2019 (7) TMI 1943 - ITAT MUMBAI
Assessment against a non-existing entity - Amalgamation scheme Conceived - HELD THAT:- As informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. It has been held that the basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Hon'ble Supreme Court Maruti Suzuki India Limited [2019 (7) TMI 1449 - SUPREME COURT] also observed that participation in the proceedings by the assessee in the circumstances cannot operate as an estoppel against law. It was also held that this position holds the field in view of their judgment in the case of Spice Enotainment delivered on 02.11.2017.
In the case on hand it is undoubtedly the assessment was made by the Assessing Officer on SIPSPL the amalgamating company which was amalgamated with STSPL w.e.f 01.10.2011 and accordingly ceased to exist thereafter. Therefore, when the assessment was made on an non existing entity the said assessment is void ab-initio and nullity in the eye of law. Assessment framed against a non-existing entity goes to the root of the matter and it is not a procedural irregularity but a jurisdictional defect and there cannot be any assessment against a non-existing entity or a dead person. Therefore, the decision of the Hon'ble Supreme Court in the case of Pr.CIT v. Maruti Suzuki India Limited (supra) squarely applies to the facts of the assessee’s case. Respectfully following the decision of the Hon'ble Supreme Court, we hold that the assessment made by the Assessing Officer in the name of the amalgamating company i.e. SIPSPL dated 24.01.2014 u/s. 143(3) r.w.s. 144C(13) of the Act for the A.Y.2009-10 is void ab-initio and bad in law. Hence the assessment order is a nullity in the eye of law and the same is quashed. The additional ground raised by the assessee is allowed.
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2019 (7) TMI 1942 - DEBTS RECOVERY TRIBUNAL MUMBAI
Recovery of dues alongwith the interest - credit facilities availed by unlawful means, conspiracy and deceit - allegation is that modus operandi of Nirav Modi a luxury diamond jewellery designer and others (the Economic Offenders/the fraudsters) made fraudulent and unauthorized transactions with the applicant which is one of the largest Public Sector Banks in India in collusion and connivance with the applicant's employees - misuse of NOSTRO account of the applicant bank - Order VI Rule 4 of the Code of Civil Procedure, 1908.
HELD THAT:- The applicant has made the averments demonstrating and indicating financial irregularities, dishonest and fraudulent transaction that have taken place in the affairs of the applicant Bank. The number of diamond import Firms are associated with Nirav Modi who have orchestrated a massive financial fraud. The fraud perpetrated by Nirav Modi is of a very huge magnitude which cannot be ignored or overlooked.
The judicial pronouncement in the case of NIMMAGADDA PRASAD VERSUS CENTRAL BUREAU OF INVESTIGATION [2013 (5) TMI 920 - SUPREME COURT] is remembered where the Hon'ble Supreme Court observed that the economic offence having deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country a whole and thereby posing serious threats to the financial health of the country.
Fraudulent debt is a debt or not - HELD THAT:- Undoubtedly, the debt would include fraudulent debt obtained by the debtor in collusion and connivance with the bank employees. The issuance of LOUs is clearly the business activity of the applicant bank. The essence of the definition of debt under section 2(g) is the existence of the liability which is claimed to be due by the applicant which is legally recoverable - The amount claimed by the applicant though fraudulent in nature is a debt within the provisions of the 1993 Act. The liability arisen out of the unauthorized LOUs issued during the course of business activity of the applicant bank constitutes "debt". This Tribunal therefore, has the jurisdiction to entertain and try the present application.
Nirav Modi and Nirav Modi Firms, partners, Nirav Modi Companies, trust, beneficiaries have taken financial benefits for the purpose of business and by utilizing the bank money for the business. The benefits so taken in a fraudulent manner, still such a person can be said to be a debtor of the bank. Defendant nos. 1 to 16 though have not signed and executed the loan and security documents have enjoyed the benefit of the amount under the LOUs are nevertheless, debtor as per the judicial pronouncement. Defendant nos. 1 to 16 cannot escape the liability to repay the debt in any manner whatsoever. Defendant nos. 1 to 16 were the ultimate beneficiaries in getting the financial assistance though in fraudulent manner, cannot escape the repayment of the liability to the applicant - the law laid down by the Hon'ble Calcutta High Court in the case of State Bank of India [2002 (7) TMI 820 - CALCUTTA HIGH COURT], is relied upon, that debt includes fraudulent debt and whether the debt is fraudulent or not can very well be ascertained before this Tribunal. The LOUs were issued during the course of business activity undertaken by the applicant. The LOUs may have been issued fraudulently but the applicant's business activity of issuing LOUs is permissible by virtue of the law in force.
There is no dispute that the LOUs were issued by the delinquent employees from their Mid Corporate Branch, Brady House, Fort, Mumbai. There is also no dispute that the LOUs were issued by the delinquent employees in collusion and connivance with Nirav Modi and Nirav Modi Group from time to time as set out in the original application. There is also no dispute that Nirav Modi and Nirav Modi Group are the recipient of the LOUs. The transactions though fraudulent in nature is covered by the definition of "debt" as provided under section 2(g) of the 1993 Act. The amount under the unauthorized LOUs is due and payable by defendant nos. 1 to 16. Thus, the jural relationship between the debtor and creditor is established by the applicant bank.
In the present law suit Nirav Modi and Nirav Modi Group have admitted the issuance of LOUs in the communication made by them. Understood thus, the LOUs were issued by the delinquent employees during the course of business activities undertaken by the applicant bank - the applicant is well within its right to file the application for the legally recoverable debt. This Tribunal has the exclusive jurisdiction under Section 17 of the 1993 Act to entertain and try the present application.
Admission of Liability - HELD THAT:- The communication addressed by Nirav Modi and the balance sheets amounts to unequivocal admission of the documents as well as the quantum of the liability more particularly stated in the balance sheet of defendant nos. 1 to 3 - The averments made in the pleading clearly demonstrate that the admission of liability made by defendant nos. 1 to 3 in their respective balance sheet and the written communications made by Nirav Modi. All the documents read together constitutes unequivocal admission. In view of the admission of liability also, the applicant is entitled for the issuance of recovery certificate.
Acquisition of properties - HELD THAT:- The applicant has pleaded that it is very likely that defendant nos. 1 to 16 may have purchased and acquired the movable and/or immovable properties worldwide from the proceeds of the fraudulent debt. These properties may have been acquired in the name(s) of other person(s) or Firms or Companies or its Subsidiaries or Entities affiliated, owned and controlled by Nirav Modi. The statements and averments also find place in the Complaint filed by the Enforcement Directorate before the City Civil & Sessions Court - the applicant is therefore, fully justified in seeking orders and reliefs in this regard also. Accordingly, the order for attachment of the properties and to recover the claim made by the applicant, are granted.
Claim of Interest - HELD THAT:- The applicant has claimed relief for interest at the rate of 14.30% per annum with monthly rest. The prayer is contrary to the pleading as regards monthly rest - interest is granted at the rate of 14.30% per annum from 30th June, 2018 till payment/realization.
Upon careful scrutiny and the examination of the Original Application, analyzing the evidence and giving due weightage to the documentary evidence adduced by the applicant, it is concluded there is no reason to disbelieve the claim made by the applicant bank.
Application allowed.
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2019 (7) TMI 1941 - ITAT AHMEDABAD
Assessment of trust - Carry forward of excess expenses over next years - benefit of the deficit for earlier years against the income of subsequent year - whether the trust has incurred deficit due to excess spending on the object of the trust during the particular year and whether excess expenditure incurred in earlier years or in the current year by the trust could be allowed to be set off against the income of subsequent year by invoking Section 11? - HELD THAT:- The issue is no longer res integra. The Hon’ble Gujarat High Court in CIT vs. Shri Plot Shwetamber Murti Pujak Jain Mandal [1993 (11) TMI 17 - GUJARAT HIGH COURT] has rendered decision favourable to the assessee on the very issue. The Hon’ble Gujarat High Court has held that there is nothing in the language of Section 11(1)(a) of the Act to indicate that the income from trust property should have been applied for charitable or religious trusts only in the year in which such income has arisen.
The expenditure incurred in an earlier year can be met out of the income of the subsequent year and utilization of such income for meeting the expenditure of the earlier year would amount to such income being applied for charitable or religious trusts -income derived from Trust property has to be computed on commercial principles and consequently deficit arising out of expenditure over income for the previous year should, therefore, be set off against surplus of income over expenditure relating to the subsequent year. Similar view has been expressed in CIT vs. Maharana of Mewar Charitable Foundation [1986 (7) TMI 56 - RAJASTHAN HIGH COURT] and CIT vs. Matriseva Trust [1999 (3) TMI 34 - MADRAS HIGH COURT] - Whatever little controversy might be existing has been put to rest by the recent decision of the Hon’ble Supreme Court in the case of CIT(Exemption) vs. Subros Education Society [2018 (4) TMI 1622 - SC ORDER]. Hence, the CIT(A) in our view has correctly applied the law as evolved by the judicial precedents. In the absence of any infirmity in the order of the CIT(A), we decline to interfere therewith. - Decided against revenue.
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2019 (7) TMI 1940 - ITAT HYDERABAD
Reopening of assessment u/s 147 - exercise of jurisdiction by correct AO - AO not issuing the notice u/s 143(2) which is mandatory for completing the assessment under the provisions of Act - HELD THAT:- Since the notice u/s 148 was not served on the assessee, the assessee did not have the opportunity to object to the same before the AO and therefore, has raised it before the CIT (A) for the first time. Since, the exercise of jurisdiction is a legal issue and if it is not exercised by the right person, the assessment is liable to be set aside, and on going through the assessment order before us, we find that the CIT (A) had not adjudicated the issue, we deem it fit and proper to remand the issue to the file of the CIT (A), with a direction to verify whether the AO who has completed the assessment had jurisdiction over the assessee. The CIT (A) shall decide the issue in accordance with law and also after taking into consideration the judicial precedents on the issue after affording the assessee a fair opportunity of hearing and if it is found that the AO had no jurisdiction over the assessee, the assessment shall be declared as null and void. Appeal of the assessee is treated as allowed for statistical purposes.
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2019 (7) TMI 1939 - ITAT MUMBAI
Sales tax subsidy - Nature of receipt - revenue or capital receipt - CIT-A held scheme of sales tax subsidy granted to the assessee to be for setting up of or for expanding existing industries in the developing region of Maharashtra - HELD THAT:- The main objective of the scheme was to intensify and accelerate the process of dispersal of industries from developed areas and for development of under-developed regions of Maharashtra. It is clear from the scheme that IPS incentive was granted not for carrying on day-to-day business of the unit more profitably but to provide impetus to the process of dispersal of industries to backward areas. The plant of the assessee falls in Group C, which also includes Khed, which is outside the Pune Metropolitan Region. In the present case the sales tax payment is only an yardstick to determine the quantum of incentive and cannot be construed as to mitigate the operational cost of the business.
In view of the above factual scenario we uphold the order of the Ld. CIT(A). Facts being identical and the grounds of appeal being same, our decision for AY 2011-12 applies mutatis mutandis to AY 2012-13.
Corporate social responsibility expenses - allowable business expenses u/s 37(1) - expenses as explained by the assessee before the AO were mainly related to expenses incurred on construction of school building, devasthan/temple, drainage, barbed wire fencing, education schemes and distribution of clothes etc. voluntarily - HELD THAT:- We are of the considered view that the Ld. CIT(A) has rightly allowed u/s 37(1) the expenses claimed by the assessee. Moreover, the decision in Jindal Power Ltd. [2016 (7) TMI 203 - ITAT RAIPUR] is applicable to the instant case. Accordingly, we dismiss the above grounds of appeal.
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2019 (7) TMI 1938 - RAJASTHAN HIGH COURT
Application for suspension of sentence - Section 389 of Cr.P.C. - HELD THAT:- Upon a consideration of the arguments advanced on behalf of the appellants and having regard to the facts and circumstances of the case, including the fact that appellants No.2 & 3 were on bail during the trial. This court is of the opinion that it is a fit case for suspending the sentence awarded to the accused-appellants No.2 & 3.
Accordingly, the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the substantive sentences passed by the Learned Special Judge NDPS Act Cases No.1, Chittorgarh vide judgment dated 16.01.2018 in Session Case No.45/2013 against the appellants-applicants 1. Nepal Singh Meena S/o Karulal Meena 2.Mohd. Israfil S/o Sarifur Rehman shall remain suspended till final disposal of the aforesaid appeal and they will be released on bail, provided they execute a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for their appearance in this court on 09/08/2019 and whenever ordered to do so till the disposal of the appeal on the conditions indicated.
The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file.
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2019 (7) TMI 1937 - CESTAT AHMEDABAD
Utilization of credit of basic excise duty for payment of Education Cess And Secondary & Higher Education Cess - area based exemption under Notification no. 39/2001-CE availed - HELD THAT:- The issue that whether the credit of basic excise duty can be utilized for payment of Education Cess and Secondary & Higher Education Cess when the appellant availed the area based the Exemption Notification No. 39/2001-CE, has been decided in the case of M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT] where it was held that The appellants were entitled to refund of Education Cess and Higher Education Cess which was paid along with excise duty once the excise duty itself was exempted from levy.
The issue is no longer res-Integra, accordingly, the appellant are entitled for utilization of credit of basic excise duty for payment of Education Cess and Secondary & Higher Education Cess - Appeal allowed - decided in favor of appellant.
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2019 (7) TMI 1936 - BOMBAY HIGH COURT
Constitutional validity and vires of a 25th June 2019 amendment to the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act 2018 - reservation of seats for Socially and Educationally Backward Classes (SEBC) (Amendment) Act, 2019 - gravamen of Petitions is essentially that the SEBC Amendment Act 2019 attempts to nullify and render void decisions of the Nagpur Bench of the Bombay High Court and of the Supreme Court.
HELD THAT:- Where the language of a statute is plain and clear from its literal reading then no process of convoluted reasoning is permissible to arrive at some totally different result. We see no ambiguity at all in the newly introduced sub-clause (ia). It may be a distinct type of entrance test but it is clearly a specified entrance test. It applies to the State quota seats and nothing else. The non obstante provisions cannot be ignored and these non obstante provisions set it apart from all entrance tests covered by sub-clause (1). The phrase is ‘notwithstanding anything contained in clause (1) above’. The mere use of the words ‘notwithstanding any order, judgment or direction of any Court’ does not mean that the State legislature has tried to overrule or render void or nullify by legislature any judgment of any Court.
All challenges before the Nagpur Bench of this court and before the Supreme Court were only in relation to postgraduate courses. The Dr Sanjana Narendra Wadewale decision [2019 (5) TMI 1950 - BOMBAY HIGH COURT] was in relation to a notification of March 2019 and was prior to the SEBC Amendment Act or even the SEBC Amendment Ordinance. The findings therein, therefore, cannot form the basis of a challenge to the SEaBC Amendment Act applied to undergraduate admissions. This is all the more so when we find that the Nagpur Division Bench dismissed a later challenge in DR. SAMEER S/O RAJENDRA DESHMUKH AND TWO OTHERS VERSUS THE STATE OF MAHARASHTRA, THROUGH ITS SECRETARY, DEPARTMENT OF MEDICAL EDUCATION & DRUGS, MUMBAI & ORS. [2019 (6) TMI 1677 - BOMBAY HIGH COURT] to the SEBC Amendment Ordinance (although even that challenge was also only in relation to postgraduate admissions).
Petition dismissed.
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2019 (7) TMI 1935 - SC ORDER
Admissibility of appeal - Levy of service tax - Cargo Handling services - It is submitted that the transportation with incidental loading would be classifiable under Goods Transport Agency service and Service Tax is payable by the client under reverse charge mechanism - HELD THAT:- Appeal admitted.
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2019 (7) TMI 1934 - ITAT SURAT
Disallowance of payments of PF/ESIC paid beyond the due date prescribed under the relevant statutes - HELD THAT:- We find that the issue is squarely covered against the assessee by the decision of CIT v. Gujarat State Road Transport Corporation [2014 (1) TMI 502 - GUJARAT HIGH COURT] wherein it was held that section 43B does not apply to employees contribution. Only section 2(24)(x) read with section 36(1)(va) is applicable and therefore, employees contribution is disallowed if not paid within due dates prescribed under relevant Provident Fund /ESI Act. We are, therefore, of the considered opinion that there is no mistake in the orders of lower authorities in making disallowance in the light of the ratio laid down by the Hon’ble Gujarat High Court in the above case (supra).
However, since the SLP has been admitted by the Hon'ble Supreme Court against the decision of Hon'ble High Court therefore, we set aside this matter to the file of the ld. CIT(A) with the direction that the matter be decide as per outcome of SLP, as and when matter will be decided by the Hon’ble Apex Court. Appeal of assessee allowed for statistical purposes.
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2019 (7) TMI 1933 - ITAT CHANDIGARH
Computation of book profit and MAT - only grievance of the Revenue was against the direction given by the CIT(A) to the AO to compute the MAT tax payable by the assessee, after verifying the claim of the assessee - HELD THAT:- Considering the pleadings made by the Revenue, we set aside the order of the CIT(A) giving aforestated direction and at the same time, we also direct the CIT(A) to adjudicate the issue himself after calling for a Remand Report on the facts of the issue from the A.O.
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2019 (7) TMI 1932 - ITAT PUNE
Validity of order passed u/s 201 and 201(1A) - period of limitation - Time limits of appeals for the assessment year 2009-10 - Filing of quarterly statement is in the financial years 2009-10 and 2010-11 - HELD THAT:- Considering the date of filing of the statements of TDS for 4 quarter of the year, the financial year involved is F.Y. 2009-10 & 2011-12. In that case, the due date for passing of order under sub-section (3)(i) of section 201 of the Act is 2 years from the end of the financial year 2009-10 or 2011-12, as the case may be. Thus, the Assessing Officer had time to pass an order for such appeals till 31st March, 2012 and 31st March, 2014, as the case may be.
Whereas in these 3 appeals, the Assessing Officer passed the order u/s 201(3)(i) of the Act only 30th March, 2016, 29th March, 2016 and 29th March, 2016 for the appeals respectively. From this point of interpretation of the Statute, we are of the opinion, the order passed by the Assessing Officer in these 3 appeals are without valid jurisdiction. The orders stand barred by limitation in these cases. Accordingly, the legal issue raised by the assessee is allowed.
Time limits of appeals for the A.Y. 2010-11 - Filing of quarterly statement is in the financial years 2009-10 and 2010-11 - There are 11 appeals in this group and they relates to the assessment year 2010-11. In this bunch of 11 appeals, the financial year in which the TDS statements are filed, covers the financial years 2009-10 and 2010-11. Considering the fact, the last quarter of the statement is filed in the financial year 2010-11, the time limits available to the Assessing Officer to pass an order u/s 3(i) of section 201 of the Act is two years from the end of the said financial year 2010-11. Thus, in that case, the Assessing Officer is under obligation to pass an order in these circumstances by 31st March, 2013.
Whereas the Assessing Officer passed the order in these 11 appeals in the year 2016 and 2017 respectively i.e. subsequent to the due date specified in the Act.
From this point of view and the interpretation of the Statute, the orders passed by the Assessing Officer are without any valid jurisdiction. Accordingly, the said relevant legal issue raised by the assessee in all the 11 appeals are allowed.
Time limits for passing the order in respect of assessment year 2009-10 (2 appeals) of 11 group of cases where quarterly statements of TDS are not furnished for all the 4 quarters of the financial year - As for this bunch of two appeals pertaining to assessment year 2009-10, the last due date for passing the order u/s 201(3)(i) of the Act is 31st March, 2013. In both the appeals, the order passed by the Assessing Officer on 29.03.2016 commonly i.e. subsequent to the said due date. Accordingly, this bunch of two appeals relating to assessment year 2009-10 has to be allowed on technical ground.
Time limits for passing the order in respect of assessment year 2010-11 (9 appeals) of 11 group of cases where quarterly statements of TDS are not furnished for all the 4 quarters of the financial year - Considering the fact, the last quarter of the statement is filed in the financial year 2011-12, the time limits available to the Assessing Officer to pass an order u/s 3(i) of section 201 of the Act is two years from the end of the financial year 2011-12 i.e. 31st March, 2014. Assessing Officer passed orders in this bunch of 9 appeals in the month of 2016 and in the month of 2017 i.e. subsequent to the expiry of the said due date. In any case, these orders were not passed before March, 2014.
Considering the above referred interpretation of the Statute as well as the facts available on record, we are of the opinion, the order passed by the Assessing Officer under sub-section 3(i) of section 201 of the Act is without any valid jurisdiction.
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2019 (7) TMI 1931 - ITAT BANGALORE
Rectification o mistake - Short payment of appeal fees - HELD THAT:- For the speedy disposal of appeal, the case was posted preponed to 5.7.2019 and Notice was issued on 14.6.2019 by RPAD and acknowledgement of RPAD is placed on record that the Notice has been received on 24.6.2019. But an adjournment letter dt.13.7.2019 was sent by post to the Asst.Registrar, Bangalore and was received by the office on 15.7.2019 at 2.15 P.M (letter placed on record). None appeared at the time of hearing, from the file record it was found that the assessee has not rectified the defect of short payment of appeal fees of Rs.9,500 and balance payment is outstanding payable. We considering the action of the assessee in not rectifying the defect and non- compliance of the directions of the ITAT, Registry, dismiss the appeal of assessee.
Disallowance of deductions claimed under Section 57 - HELD THAT:- Departmental Representative has emphasizing that the CIT (Appeals) has erred in restricting the deduction to Rs.24,65,753 whereas the Assessing Officer has made disallowance in the assessment order of Rs.95,73,377. The learned Departmental Representative supported the orders of Assessing Officer, we find that the learned Departmental Representative could not controvert the observations of the CIT (Appeals) with new evidence or cogent material except relying on the order of the Assessing Officer. We find that the CIT (Appeals) has considered the facts and taken a reasonable view which we are not inclined to interfere and uphold the same and dismiss the ground of appeal of the Revenue.
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2019 (7) TMI 1930 - MADRAS HIGH COURT
Dishonor of Cheque - partnership firms can be made as an accused or not - complaint can be filed straight away against the partners or not - vicarious liability - unregistered Partnership Firm can also be brought within the purview of Section 141 of the Negotiable Instruments Act or not - whether the Partnership Firm must be made as an accused along with the other partners, in order to maintain a complaint for an offence under Section 138 of the Negotiable Instruments Act?
HELD THAT:- This Court had an occasion to deal with a case where this bar Section 69(2) of the Indian Partnership Act, was sought to be invoked while enforcing a common law right. This Court dealt with the issue in detail and held that the bar Section 69(2) of the Indian Partnership Act, will not apply while enforcing a common law right.
In the present case, this Court is dealing with a provision under the criminal law wherein, the learned counsel for the respondent is seeking to justify the fact that insofar as an unregistered firm is concerned, it is not necessary to make the firm as an accused since it does not qualify the status of a legal entity. It is trite law that when the provisions of criminal law are interpreted, the concept of strict construction will apply. Therefore, this Court cannot read the provisions of Section 69(2) of Indian Partnership Act into the provisions of Section 141 of the Negotiable Instruments Act.
Section 142 of the Act under caption "Cognizance of offences" provides that cognizance of the offence under Section 138 can be taken upon a 'complaint' in writing made by the payee or the holder in due course of the cheque. The word 'complaint' defined in Section 2(d) of the Code of Criminal Procedure means any allegation made orally or in writing to a Magistrate, with a view to taking action under the said Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Since Section 138 is a penal provision, that prescribes punishment for bouncing of cheque on any of the grounds mentioned therein, the Legislature in its wisdom has used word 'complaint' and not 'suit' in Section 142 because a 'suit' can be maintained for recovery of money or for any other civil remedies.
Section 141 of the Negotiable Instruments Act deals with the concept of vicarious liability, wherein for the offence committed by the Company or a partnership firm, the directors or the partners, as the case may, are deemed to be guilty of the offence when it is shown that they are in charge of and responsible for the conduct of the day-to-day affairs of the business or the firm, as the case may be - The registration or non-registration of the Partnership Firm will have no bearing insofar as 141 of the Negotiable Instruments Act is concerned.
This Court is not in agreement with the submissions made by the learned counsel for the respondent. In this case admittedly, the cheque was given in the name of the Partnership Firm and after the cheque was dishonored, no statutory notice was issued to the Partnership Firm, and the Partnership Firm was not made as an accused in the complaint. Only the partners have been shown as accused persons in this complaint. Such a complaint is unsustainable and not in accordance with Section 141 of the Negotiable Instruments Act - petition allowed.
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2019 (7) TMI 1929 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - in view of the existence if dispute, the application u/s 9 of the I&B Code was rejected - HELD THAT:- We are not deliberating on such issue whether the ‘Corporate Debtor’ accepted the liability or not as it is found that the ‘Corporate Debtor’ opposed the application u/s 9 of the I&B Code and the Adjudicating Authority noted from letters dated 14th September, 2017 and 9th October, 2017 that there was an ‘existence of dispute’ prior to issuance of Demand Notice u/s 8(1) of the I&B Code which was issued on 13th November, 2017.
The impugned order need not be interfered - appeal dismissed.
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2019 (7) TMI 1928 - ITAT PUNE
Exemption u/s 10(37) - compensation and interest u/s. 28 of Land Acquisition Act on account of compulsory acquisition of land - AR submitted that the interest received u/s. 28 of the L.A. Act is capital in nature and hence is not taxable - HELD THAT:- The Co-ordinate Bench of Tribunal in the case of Dnyanoba Shajirao Jadhav [2018 (2) TMI 105 - ITAT PUNE] after considering the judgment of Commissioner of Income Tax Vs. Ghanshyam (HUF) [2009 (7) TMI 12 - SUPREME COURT] and Bikram Singh & Ors. Vs. Land Acquisition Collector & Ors. [1996 (9) TMI 6 - SUPREME COURT] held that the interest awarded u/s. 28 of the L.A. Act is in the nature of solatium and is integral part of compensation. The said interest is in the nature of capital receipt and hence not exigible to tax under the provisions of Income Tax Act. Whereas, interest received u/s. 34 of the L.A. Act is on account delayed payment of compensation and is a revenue receipt.
Though the amount received u/s. 28 and u/s. 34 of the L.A. Act are termed as ‘interest’ however they stand on different pedestal in so far as the provisions of Income Tax Act are concerned.
In the instant case, it is not disputed by the Revenue that the amount received by the assessee as interest is u/s. 28 of the L.A. Act. Therefore, entire amount is exempt from tax being capital receipt. We find merit in the contention of the assessee. Hence, the impugned order is set aside and the appeal of assessee is allowed.
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2019 (7) TMI 1927 - DELHI HIGH COURT
Validity of detention order - section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) - HELD THAT:- It is observed from the orders dated 28.03.2019 and 05.04.2019, annexed at page Nos.88 and 90 respectively, that the petitioner had appeared before the learned CMM in the proceedings, on those dates. Despite that the detention order, which had been rendered on 26.03.2019, was not executed upon him on behalf of the official respondents.
It is directed that no coercive action be taken against the petitioner, till the next date of hearing.
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2019 (7) TMI 1926 - CALCUTTA HIGH COURT
Modvat / Cenvat availed on inputs - Some input transferred to sister unit as stock transfer (which is not sale) - HELD THAT:- In the impugned order Tribunal has based its decision, on the facts on an earlier decision of the tribunal which followed COMMISSIONER OF CENTRAL EXCISE, NAGPUR VERSUS M/S BALLARPUR INDUSTRIES LTD [2007 (8) TMI 10 - SUPREME COURT], where Tribunal has held that since there is no sale, Modvat is not required to reversed. SC has reversed the decision of the Tribunal and held that on even on stock transfer, Modvat is required to be reversed
There are no infirmity in the said order of the tribunal, let alone any substantial or ordinary question of law arising from it to be determined by this Court.
Appeal dismissed.
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2019 (7) TMI 1925 - ITAT JAIPUR
Deduction u/s 54 in respect of capital gains earned - investment made by the assessee in his own name - AO disallowed deduction in respect of investments made in the name of nephew - AO allowed the deduction only for half portion of one residential house purchased in the name of assessee and his brother u/s 54 of the Act for the reason that deduction u/s 54 can be allowed only for one house property purchased in the name of assessee himself - HELD THAT:- As assessee has made investment in his joint name alongwith brother, the same deserves to be allowed in terms of the decision of Hon'ble Rajasthan High Court in the case of Mahadev Bala [2017 (11) TMI 1622 - RAJASTHAN HIGH COURT, JAIPUR]. Also see SHRI JITENDRA V FARIA VERSUS ITO 18 (2) (1) , MUMBAI [2017 (5) TMI 12 - ITAT MUMBAI]
We direct the AO to allow claim of deduction u/s 54 of the Act in respect of the investments made by the assessee in his own name alongwith the name of his brother. - Decided in favour of assessee in part.
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2019 (7) TMI 1924 - ORISSA HIGH COURT
Deduction u/s 80-I-A - income derived by it from unit transfer/self-consumption of power cogenerated from the entitled undertaking and to the extent and principles for determination thereof - HELD THAT:- As relying on ALEMBIC LIMITED [2016 (7) TMI 1239 - GUJARAT HIGH COURT] there is no difficulty in holding that captive consumption of the power generated by the assessee from its own power plant would enable the respondent-assessee to derive profits and gains by working out the cost of such consumption of power inasmuch as the assessee is able to save to that extent which would certainly be covered by section 80-LA(1). When such will be the outcome out of own consumption of the power generated and gained by the assessee by setting up its own power plant, we do not find any lack of merit in the claim of the respondent-assessee when it claimed by relying upon section 80-IA(1) of the Income-tax Act by way of deduction of the value of such units of power consumed by its own plant by way of profits and gains for the relevant assessment years.
Against the aforesaid judgment of Madras High Court, SLP was filed before the Hon’ble Supreme Court, being SLP which was dismissed. In that view of the matter, learned Tribunal while considering the matter has not considered the issue in its true perspective. Therefore, only for adjudication on the factual matrix in terms of the aforesaid discussion, the matter is remitted back to the learned Tribunal for fresh adjudication.
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