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2020 (8) TMI 865 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Maintaiability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors - Existence of debt and dispute or not - Corporate Debtor deliberately failed and neglected to pay legally enforceable debt - service of demand notice - HELD THAT:- This Bench on examination, finds that the Demand Notice dated 10.09.2018 has been duly served through registered post by the Petitioner at 604, Kaushal point, 4th floor, behind Uday cinema, Ghatkopar (W), Mumbai. A proof of delivery by way of acknowledgment card has been attached by the Petitioner with his Petition. That it is the correct address for delivery of Demand Notice is borne out by the fact this address is mentioned as the Registered address of the Corporate Debtor company even in their Annual Report of 2018-2019. This Bench, therefore, has no doubt that the Demand Notice was duly served upon the Corporate Debtor and it chose not to contest it.
The Corporate Debtor has not been able to produce a single piece of paper which points towards it raising any dispute regarding the transactions, invoices or the amount payable.This Bench has no doubt that at least an amount of ₹ 90,49,843/- is a liability which is due from Risa International Limited and qualifies as Operational Debt both in terms of Section 3(11) and Section 5(21) of the IBC, 2016 - Application under sub-section (2) of Section 9 of I&B Code, 2016 filed by the Operational Creditor for initiation of CIRP in prescribed Form5, as per the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 is complete. The existing operational debt beyond the threshold limit against the Corporate Debtor and its default is also proved.
The application filed under section 9 of the Insolvency and Bankruptcy Code for initiation of corporate insolvency resolution process against the Corporate Debtor deserves to be admitted - Application admitted - moratorium declared.
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2020 (8) TMI 864 - MADRAS HIGH COURT
Levy of penalty - Rebate of duty - failure to issue a show cause notice for a proposal to impose penalty under Section 11AC of the Act - relevancy of documents sought for - principles of natural justice - HELD THAT:- In the present case, the petitioner had claimed and received rebate of duty by production of a Disclaimer Certificate issued by M/s.ERTP. On investigation by the department, it was found that production particulars submitted by M/s.ERTP to the department was less when compared to the actual production, since M/s.ERTP had suppressed the same. The issue therefore before the department, at that point of time, was as to whether M/s.ERTP suppressed the production during the relevant time and thereby, enabling the petitioner to claim rebate based on such suppressed production. The fact of suppression was revealed to the department through a private file seized by them, which contained details of processed fabrics, dispatched by M/s.ERTP during January 1997 to July 2000.
When the disclaimer certificate issued by M/s.ERTP was based on suppression of production details, it is for M/s.ERTP to substantiate the issue raised by the department in this regard. However, M/s.ERTP neither replied to the show cause notice nor participated in the hearing conducted by the department thereafter, but had rather accepted the contents of the documents relied upon by the department and admitted their guilt. Thus, the proceedings initiated against M/s.ERTP was never challenged and had become final - the petitioner instead of availing the opportunities to peruse and take copies of the documents relied upon by the department, had been insisting the department to give them the copies, even after the period stipulated in the show cause notice had expired.
Relevancy of the documents sought for by the petitioner for establishing his case and their bonafides in making such a request - HELD THAT:- This issue that requires to be answered by the petitioner was as to why the excess rebate amount claimed on the basis of suppressed production furnished by M/s.ERTP, should not be demanded from the petitioner. The proposal to recover was only on the basis of suppression of production details by the petitioner's processor namely M/s.ERTP. The documents relied upon by the department are the ones depicting the actual production and clearance of goods made by M/s.ERTP - there are no bona-fides on the part of the petitioner in insisting for the copies of documents which may not relevant or sufficient to enable them to give a reply.
The petitioner, had not only refrained from availing the opportunities given to them for perusing and taking copies of the documents, but had, after obtaining some of the copies, chosen to seek for further documents, which will not assist them in anyway for giving an effective reply to the show cause notice. Consequently, it can be held that there were reasonable opportunities extended to the petitioner and therefore, there is no violation of principles of natural justice in this regard - It is a settled proposition of law that whenever a penalty of such a nature is imposed, the same should be preceded with a prior notice of proposal. In the absence of the same, it would be appropriate to give an opportunity to the petitioner to put forth his objections with regard to the imposition of penalty under Section 11 AC of the Act alone. However, the petitioner shall not once again indulge in seeking for the documents relied upon by the department for the purpose of giving a reply to the proposal for penalty under Section 11AC, but, shall address this issue independently on its legal permissibility.
The revisions filed stands confirmed, except the portion of the order imposing penalty of ₹ 15,84,083/- under Section 11AC of the Central Excise Act, which is set aside - petition disposed off.
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2020 (8) TMI 863 - SUPREME COURT
Interpretation of law - admission and continuation in postgraduate medical degree courses - HELD THAT:- It is directed that the doctors who are already undergoing the postgraduate degree courses on the basis of being successful in the original writ petition filed in the High Court at Calcutta shall not be disturbed from pursuing the said course. The same direction shall also cover successful medical students who have already undertaken admission in postgraduate medical degree courses following the applicable admission process and are pursuing their postgraduate studies in the States of Gujarat, Haryana, Kerala, Maharashtra and Tamil Nadu.
Application disposed off.
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2020 (8) TMI 862 - ITAT DELHI
Scope of Limited scrutiny - expansion of the scope of limited scrutiny - unsecured loans from persons who have not filed their return of income - Sales consideration of property in ITR less than sales consideration reported in Form 26QB - applicability of sec 50C - assessee filed the first appeal before the Ld. CIT (A) wherein it was contended that provisions of Section 50C of the Act were not at all applicable as the assessee had not sold any asset being land or building or both but had sold a capital asset in the form of booking rights/right to allotment of flat only - HELD THAT:- It is an undisputed fact that the instant case was picked up for ‘Limited Scrutiny’ on two specific issues as reproduced - It is also an undisputed fact that neither any permission was sought by the AO to expand the scope of limited scrutiny in the instant case nor such permission was ever granted by the Ld. Pr.CIT/CIT in this case to inquire into any other issue during assessment proceedings. AO, while passing the assessment order, has not drawn any adverse inference against the assessee on either of the two issues on which the case was picked up for limited scrutiny under CASS.
The assessee had claimed TDS credit u/s 194IA and had declared sales consideration in his ITR. The rate of TDS during this period was 1% under Section 194IA of the Act and the amount of TDS which fully corresponds to the amount as declared by the assessee in his ITR. Thus, it cannot be said that the sales consideration declared in ITR is less than the one reported in FORM 26Q filed by buyer. Even the AO has not disputed this fact in the assessment order.
No adverse inference has been drawn by him against the assessee on the issue of unsecured loans. In our considered opinion, the findings of the Ld. CIT (A) on this issue are not correct and there was no valid basis for the AO to inquire into other issues while conducting a limited scrutiny, without taking the mandatory permission from the Ld. Pr.CIT. On these facts, when the CBDT instructions did not permit the AO to travel beyond the issues which are authorised by the Board in this regard under CASS, it is held that the addition made by the AO is beyond his jurisdiction.
AO has travelled beyond his jurisdiction when he has invoked the provisions of Section 50C, whereas he only had the jurisdiction to verify as to whether the sales consideration declared by the assesse in his ITR was less than the amount reflected in FORM 26QB. Once he was satisfied on this aspect, he ought not have travelled beyond this without obtaining the mandatory permission from the Ld. Pr.CIT to do so in terms of the above referred CBDT Instructions. The finding of the Ld. CIT (A) on this issue, therefore, cannot be upheld and the assessee’s first ground of appeal is allowed.
Possession of the flat was not offered by the builder as the project was still under construction as proved from the order of RERA dated 6-10-2017 brought on record by the assessee both before the AO and the Ld. CIT (A). Thus, it is a case of transfer of only the booking rights of a residential flat in an under construction project. As the assessee did not have possession of any immovable property, there was no question of sale of any land or building or both. On these facts, in our considered opinion, the provisions of section 50C are not applicable as the assessee has neither sold any land nor any building or both.
Since it has been held by us that the provisions of Section 50C of the Act are not applicable to the transaction of selling booking rights/rights to allotment of a flat, as has been done by the assessee in the instant case, the issue of making reference or not to the DVO becomes academic and is not adjudicated here. Appeal of the assessee is allowed.
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2020 (8) TMI 861 - KARNATAKA HIGH COURT
Provisional order of attachment by order - right cause before the wrong forum - sufficient cause for delay or not - Section 14 of the Limitation Act, 1963 - HELD THAT:- The expression "sufficient cause" has received the attention of this Court and the Hon'ble Apex Court in catena of judgments. The expression "sufficient cause" which also finds a place in Section 5 of the Limitation Act has been examined by the Hon'ble Apex Court and it has been consistently held that sufficient cause should receive liberal interpretation rather than pedantic approach. It is no doubt true that no litigant would stand to benefit by approaching the Courts belatedly. As such, wherever issue regarding delay would arise, there may be liberal approach while examining the plea of delay, it is not the length of delay, but it is the cause for delay which would be of paramount consideration. However long the delay might be, if the cause shown is sufficient or in the proximity of truth, such delay deserves to be condoned.
The writ petitions had been filed on 13.12.2016 and there is not even a whisper in the writ petitions as to what prevented the petitioners from challenging the order of Adjudicating Authority dated 14.09.2016. In other words, at every step, petitioners have been exhibiting laxity, negligence, carelessness and what is applicable to a rustic villager or a person who is not conversant with the worldly affairs, i.e., to plead ignorance about nuances of filing appeals, cannot be extended to the petitioners herein because first petitioner was a Group 'A' officer in Government of Karnataka and the second appellant is none other than his wife. In other words, they are fully conversant with the nuances of filing petitions and appeals as is evident from their acts in challenging orders passed by authorities in different forums at different stages.
There is no question of law much less substantial question of law as framed in the appeal memorandum which requires to be framed in these appeals to be adjudicated and answered - Appeal dismissed.
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2020 (8) TMI 860 - SC ORDER
Seeking grant of Bail - HELD THAT:- There is no dispute that the applicant-petitioner has already surrendered. The interim order/relief granted to the petitioner was passed without taking into account the fact that the petitioner was in custody on that day. Therefore, the order preventing any coercive steps is hereby recalled, as redundant.
The applicant-petitioner is given liberty to apply for bail before the appropriate court - Application disposed off.
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2020 (8) TMI 859 - DELHI HIGH COURT
Money Laundering - scheduled offence - the respondents from taking any precipitate action against the petitioner in pursuance of the Enforcement Case Information Report i.e. ECIR/0I/HIU/20I9 dated 25.01.2019 ECIR solely on the ground that the charge-sheet did not advert to a scheduled offence - HELD THAT:- On the previous date i.e. 08.07.2020, I had restrained the respondents from taking any precipitate action against the petitioner in pursuance of the Enforcement Case Information Report i.e. ECIR/0I/HIU/20I9 dated 25.01.2019 [ECIR] solely on the ground that the charge-sheet did not advert to a scheduled offence.
Mr. Mahajan says that since the investigation is on, there is a possibility of not only the petitioner being charged under Section 420 of the IPC, but also qua other scheduled offence(s) as well - what is clear is that there is nothing on record before the concerned Court, which points in the direction that the petitioner has infracted a provision of the IPC, which is a scheduled offence.
The only direction that can been issued, whereby the interests of both the petitioner and the respondents are protected, is that the subject ECIR be closed with liberty to the respondents to revive the same if a supplementary charge-sheet is filed and/or a charge is frame qua the petitioner concerning scheduled offence(s) - petition disposed off.
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2020 (8) TMI 858 - SUPREME COURT
Arbitration proceedings - Foreign Final Award - the extent to which HSBC could be said to have a strong prima facie case in the enforcement proceedings Under Section 48 which are pending before the Bombay High Court? - whether irreparable prejudice would be caused to HSBC if protective orders were not issued in its favour, and generally, whether the balance of convenience tilts in its favour and to what extent?
HELD THAT:- Where arbitral proceedings are ongoing, such proceedings become invalid the moment legal proceedings upon the whole of the subject matter of the reference have been commenced between all the parties to the reference and a notice thereof has been given to the arbitrators or umpire. As against this, Sections 5, 8 and 16 of the 1996 Act reflect a completely new approach to arbitration, which is that when a judicial authority is shown an arbitration Clause in an agreement, it is mandatory for the authority to refer parties to arbitration bearing in mind the fact that the arbitration Clause is an agreement independent of the other terms of the contract and that, therefore, a decision by the arbitral tribunal that the contract is null and void does not entail ipso jure the invalidity of the arbitration clause.
There can be no doubt whatsoever after reading the issues and some of the material findings in the Foreign Final Award that the issues raised and answered are the subject matter of civil as opposed to criminal proceedings. The fact that a separate criminal proceeding was sought to be started and may have failed is of no consequence whatsoever - a reading of the Foreign Final Award in this case would show that a strong prima facie case has indeed been made out as the Award holds the BBC transaction as a basis on which the contract was entered into and the USD 60 million paid by HSBC, which would clearly fall within fraudulent inducement to enter into a contract Under Section 17 of the Contract Act. Such a contract would be voidable at the instance of HSBC. Also, the findings on the siphoning off of monies that were meant to be allocated for the performance of the BBC contract would attract the tort of deceit. The measure of damages for such fraudulent misrepresentation is not the difference between the value of the shares on the date of making the contract and the value HSBC would have received, if it had resold those shares in the market, after the purchase.
The matter is remanded to the ADJ, Mohali for fresh disposal in accordance with law.
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2020 (8) TMI 857 - BOMBAY HIGH COURT
Recovery of Interest under Section 50 of the GST Act - HELD THAT:- The Learned Advocate appearing for the Petitioner is not pressing for reliefs sought in the Writ Petition.
The Writ Petition is disposed of.
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2020 (8) TMI 856 - KARNATAKA AT HIGH COURT
Jurisdiction for initiation of proceedings under the provisions of PML Act - absence of conviction of the offender for the "predicate offence" - Proceeds of crime - HELD THAT:- "Offence of money laundering" is expansively defined u/s. 3 and the Explanation inserted by amendment 2019 to this section & to section 44, being clarificatory of the legal position ab inceptio, applies to the case of the petitioner, contend Mr. Prasanna Kumar & Mr. Jayakar Shetty; they justified this submission through interpretative process - the expansive definition of the "offence of Money-Laundering" as it existed prior to insertion of aforesaid Explanation also covers the case of petitioner; now that, the challenge to the CBI investigation is held to be unsustainable, petitioner's case has been rendered worse; therefore, the submission that the impugned communication is without competence or justification, does not merit acceptance.
There are no other ground having been urged and both the writ petitions being devoid of merits, are liable to be dismissed - petition dismissed.
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2020 (8) TMI 855 - ITAT DELHI
TP Addition - international transaction of software development services rendered by the Appellant to its parent company - Comparable selection - Functional dissimilarity - HELD THAT:- Assessee as engaged in providing “software development and IT enabled services” or say engaged in providing “software services”, companies as functionally dissimilar with that of assessee need to be deselected from final list. DRP has upheld the filter of the rejection of the companies with service income less than 75%.
E-Infochips Ltd. - Details of margin on hardware sales is not available and if the margin on hardware is too high as compared to software services, the company may not be suitable for comparison. Due to lack of sufficient information in respect of the company available in the public domain, in the interest of substantial justice, we feel appropriate to restore the issue of comparison to the Ld AO/TPO with the direction to the TPO to obtain such information in the form of relevant schedules of the Profit & Loss Account of the said entity as well as the segmental details of the hardware division, if any, directly from the said entity and then decide the issue of comparability. We, therefore, set aside the finding of learned TPO for including the company into set of comparables as well as the direction given by the DRP on this issue and restore the matter to the file of the Assessing Officer/TPO for deciding the same afresh in the light of the observations already made by us, after giving the assessee a proper and sufficient opportunity of being heard.
E-Zest Solutions Limited - As far as issue of functional dissimilarity on the ground of conceptualization of the software is concerned, we do not agree with the argument of the learned Counsel of the assessee. although the company is functionally similar to the assessee but in view of the figure of increase in the stock gives rise to the possibility of trading segment. As complete information is not available in public domain, in our opinion, the Learned TPO can collect the relevant information from the company using the authority under section 133(6) of the Act and if he finds that trading segment exist and no separate results are available for the software development segment, then he shall exclude the company from the set of the comparables. Accordingly, we restore the issue of the comparability of the company to the file of the Learned AO/TPO for deciding afresh after providing adequate opportunity of being heard to the assessee.
Infosys Ltd. - Tribunal has rejected the company mainly on the ground of giant company vis-à-vis the assessee being a captive service provide. Since this ground of the rejection is valid in the year under consideration also we direct the Learned AO/TPO to exclude this company from the final set of the comparables.
Larsen and Toubro Infotech Ltd. - As revenue has been shown from software development services and products and there is no separate segment of the software development services available in the annual report of the company. In such a huge turnover, the composition of revenue from the software development services and from sale of the software products is not separately available in the annual report. In such circumstances, the company cannot be termed as functionally similar at entity level with the assessee, who was engaged in providing software services to its associated enterprises. In view of the functional dissimilarity, we direct the Learned AO/TPO to exclude this company from the final set of the comparables.
Persistent Systems & Solutions Ltd - As revenue has been shown from the software services only and no revenue has been shown from sale of the products or from royalty etc. Merely mention of the method of the recognition of the revenue in the notes to the account, cannot indicate revenue has been earned from sale of the products or from the royalty. No other information has been pointed out by the learned Counsel to support his contention that the company is engaged in sale of the products. No such information in respect of sale of products or income from royalty is available in the public domain, therefore in the interest of the justice, we feel it appropriate to restore this matter to the Learned AO/TPO with the direction to gather information using authority under section 133(6) of the Act and if he finds presence of substantial income from sale of the products or royalty and income from software development services cannot be segmented, then the company shall be excluded from the set of the comparable. The assessee shall be afforded adequate opportunity of being heard.
Persistent Systems Ltd. - As revenue from sale of software services and product has been shown that ₹ 6,101.27 million. There is no separate bifurcation of the revenue from the software services and therefore in absence of segmental data of software services, the company cannot be included as a comparable at entity level. Accordingly, on the ground of the functional dissimilarity of the entity level, we direct the Learned AO/TPO to exclude the company from the final set of the comparables.
Wipro Technology Services Ltd. company is directed to be excluded from the set of the final comparables.
Zylog Systems Ltd. - As the Revenue as shown from Software Development services and the products and no separate revenue or segmental result for software development services have been reported in the annual report. In absence of any separate segmental result of software development services available in public domain, we reject the company as comparable on functional dissimilarity at entity level. Accordingly, we direct the Ld. AO/TPO to exclude this company from the set of the final comparables.
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2020 (8) TMI 854 - BOMBAY HIGH COURT
Interim order for Liquidation - it is the case of the respondents that the impugned order has been passed under section 102(1)(c)(ii) and (iv) of the Maharashtra Co-operative Societies Act, 1960, it may not be necessary to delve into the circumstances covered by clauses (a) and (b) - order for winding up of the petitioner society was passed - HELD THAT:- What section 102(1)(c) contemplates is that if the Registrar of his own motion in the case of a society which has not commenced working or has ceased working or possesses shares or members' deposits not exceeding five hundred rupees or has ceased to comply with any conditions as to registration and management as provided in the Act or the rules or the bye-laws, is of the opinion that a society ought to be wound up, he may issue an 'interim order' directing it to be wound up. Adverting specifically to the facts of the present case where respondent No. 1 has invoked clause (c)(ii) and (iv) of sub-section (1) of section 102, what therefore falls for consideration is that the Registrar must suo motu form an opinion that a society should be wound up because it has ceased working or it has ceased to comply with any conditions as to registration and management as provided under the Act or the rules and bye-laws framed thereunder then he may issue an 'interim order' directing the society to be wound up.
The show cause notice was issued on 19.05.2020 to which petitioner submitted reply on 15.06.2020. Immediately on the next day, i.e., on 16.06.2020, the impugned order was passed. Impugned order says that though the petitioner had submitted its reply, no documents were annexed with it. It is stated that though reference was made to an affidavit regarding payment of dues to the workmen, neither copy of such affidavit nor any other evidence were produced. Regarding agreement entered into with Amul, again it is stated that no evidence to that effect was produced. On that basis, it was held that the written reply was not at all satisfactory and that liquidation process should be initiated.
Having regard to the stand taken by the petitioner society in its show cause reply, if respondent No. 1 wanted or desired further materials to be considered in support of the contentions, it could have very well sought for the same from the petitioner society. After all directing liquidation of a society is a drastic measure and ordinarily should be taken only as the last option. Non-seeking of materials/evidence from the petitioner society more so in the context of the petitioner society seeking a hearing does not appear to be justified; rather it appears that impugned action has been taken in undue haste without calling for and examining the related materials.
When an order is set aside by a superior authority, the consequence thereof is that it becomes inoperative; it is rendered null and void; it is erased from the record book as if it was never passed - to contend that the impugned order dated 16.06.2020 is a continuation of the previous proceeding which led to passing of final order dated 24.08.2016 is clearly an untenable proposition and certainly does not stand to reason. When respondent No. 1 says that the terms and conditions of the appellate order dated 12.05.2017 have not been complied with and for that reason he seeks to invoke the suo motu jurisdiction under section 102(1)(c), he has firstly to clearly state and point out as to what are the non-compliances and to what extent.
The impugned order dated 16.06.2020 passed by respondent No. 1 cannot be sustained being wholly untenable in law as well as on facts - petition allowed.
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2020 (8) TMI 853 - MADRAS HIGH COURT
Attachment of Bank Property - execution of decree by attachment and sale of the property namely land and building and premises with all fixtures and fittings, machineries, electrical installations, etc. - seeking reduction of upset price from One crore to Forty lakhs - HELD THAT:- On the admitted facts, this Court is of the view that the bank's right to proceed against the property is protected against any one who has no prior right. In this case, the order of attachment was much after the mortgage and therefore, is not binding and the bank can proceed against the property as held by the Hon'ble Division Bench of this Court. Order 38 Rule 10 of C.P.C. protects the rights of the prior mortgagee and therefore, any attachment after the mortgage cannot affect the rights of the bank which existed prior to the attachment. The bank is not a party when the order of attachment was passed by the executing Court in 2008. It is true that the order of attachment will be subject to the bank's right to proceed against the property based on the mortgage.
The order passed by the learned Principal Subordinate Judge in raising the attachment to enable the bank to proceed against the property is perfectly in order. However, the order of attachment will hold good as it is valid otherwise and it is enforceable subject to the mortgage rights of the bank to proceed against the property for recovery of its dues - The order of attachment cannot affect the bank or the auction purchaser to get absolute title after the sale at the instance of the bank is confirmed.
Petition dismissed.
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2020 (8) TMI 852 - SUPREME COURT
Entitlement to compensation in excess of what was stipulated in the Apartment Buyers Agreement - delay in handing over the possession of the residential flats - Reimbursement of taxes and interest charged to the flat purchasers - Deficiency in providing amenities - Levy of electricity charges by the developer - Failure to construct the club house - whether the flat buyers are constrained by the stipulation contained in Clause 14 of ABA providing compensation for delay at the rate of ₹ 5 per square feet per month?
HELD THAT:- The flat purchasers invested hard earned money. It is only reasonable to presume that the next logical step is for the purchaser to perfect the title to the premises which have been allotted under the terms of the ABA. But the submission of the developer is that the purchaser forsakes the remedy before the consumer forum by seeking a Deed of Conveyance. To accept such a construction would lead to an absurd consequence of requiring the purchaser either to abandon a just claim as a condition for obtaining the conveyance or to indefinitely delay the execution of the Deed of Conveyance pending protracted consumer litigation.
The developer in the present case has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats.
Club House - HELD THAT:- Since permission of BDA has still not been received legal action is contemplated again. The developer has produced photographs depicting the amenities which have been provided within the precincts of the club house. Membership fees for the club are stated to have been received in the account of the RWA and not in the account of the developer. The position which has been stated before the court has not been disputed by counsel for the Appellants. Hence, it is found that there has been no breach by the developer of the obligation to provide a constructed facility of a club for the RWA.
Other Amenities - HELD THAT:- A flat purchaser who invests in a flat does so on an assessment of its potential. The amenities which the builder has committed to provide impinge on the quality of life for the families of purchasers and the potential for appreciation in the value of the flat. The representation held out by the developer cannot be dismissed as chaff. True, in a situation such as the present it may be difficult for the court to quantify the exact nature of the compensation that should be provided to the flat buyers. The general appreciation in land values results in an increase in the value of the investment made by the buyers. Difficulties in determining the measure of compensation cannot however dilute the liability to pay. A developer who has breached a clear representation which has been made to the buyers of the amenities which will be provided to them should be held accountable to the process of law. To allow the developer to escape their obligation would put a premium on false assurances and representations made to the flat purchasers. Hence, in factoring in the compensation which should be provided to the flat buyers who are concerned in the present batch of appeals, we would necessarily have to bear this issue in mind.
Tax - HELD THAT:- The developer has offered an explanation of why as a result of pending litigation, the dues towards works contract tax were not paid earlier. Indeed, if they were paid earlier, the purchasers would have been required to reimburse their proportionate share of taxes earlier as well. No part of the penalty imposed on the developer has been passed on to the purchasers. In view of the terms of the ABA and the explanation which has been submitted by the developer, there is no deficiency of service in regard to the demand of interest payable on the tax which was required to be deposited with the revenue.
Electricity - HELD THAT:- The NCDRC has upheld the collection of the charges towards electricity based on the terms of the ABA. There is no infirmity in the finding of the NCDRC, which is based on the provisions contained in Clause 23(b) of the ABA. The charges recovered are not contrary to what was specified in the contract between the parties.
Parking - HELD THAT:- The ABA contained a break-up of the total price of the apartment. Parking charges for exclusive use of earmarked parking spaces were separately included in the break-up. The parking charges were revealed to the flat buyers in the brochure. The charges recovered are in terms of the agreement - The demand of parking charges is in terms of the ABA and hence it is not possible to accede to the submission that there was a deficiency of service under this head.
The dismissal of the complaint by the NCDRC was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities - Appeal allowed.
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2020 (8) TMI 851 - ITAT LUCKNOW
Assessment u/s 153A - whether in the case of unabated assessments? - additions made by the AO in the absence of any incriminating material or seized documents are valid or not? - HELD THAT:- Unabated assessment and completed assessment cannot be disturbed dehors the incriminating material while making the assessment u/s 153 A of the Act.
Respectfully following the ratio laid down MEETA GUTGUTIA PROP. M/S. FERNS ‘N’ PETALS [2017 (5) TMI 1224 - DELHI HIGH COURT] and KABUL CHAWLA [2015 (9) TMI 80 - DELHI HIGH COURT] we hereby hold that the assessments completed for the unabated years cannot be held to be valid in the absence of any seized material. Hence, the additions made for the assessment years 2009 - 10 to 2013-14 are liable to be deleted.
Addition on account of salary of drivers, expenditure on festivals, petrol- diesel expenses etc. - AO has made this addition on estimate basis without bringing any cogent material on record - HELD THAT:- We are of the firm opinion that the addition on account of low withdrawals cannot be made in the hands of the assessee as the revenue has not brought anything on record regarding incurring of such expenses. We note that no evidence was brought on record by the Revenue which may prove that the assessee has incurred expenses on the household drawing much more than what has been shown by her family members.
The household drawing has merely been estimated by the AO without pointing out any specific expenditure being incurred by the assessee. We have gone through the provisions of section 69C of the Income Tax Act and we note that there must be evidence on record which may prove that the assessee had incurred expenses much more than what has been shown by the family members. It is for the revenue to prove that the expenses have indeed been incurred and then the onus shifts to the assessee to prove that the assessee has enough sources to incur such expenses or to prove that such expenses have not been incurred. Our aforesaid view is duly supported by the decision of the Hon' ble Supreme Court in the case of CIT Vs. Daulat Ram Rawatmall [1972 (9) TMI 9 - SUPREME COURT]. Hence, we hereby delete the addition made on account of household withdrawals.
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2020 (8) TMI 850 - DELHI HIGH COURT
Permission for withdrawal of petition - petitioner submits that due to an inadvertent error certain facts were omitted to be stated in the petition - HELD THAT:- The petition is dismissed as withdrawn with liberty as prayed for.
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2020 (8) TMI 849 - ITAT BANGALORE
Applicability of provisions of section 206AA - payments made to non-resident entities - A.O. had also invoked section 206AA of the Act while initiating proceedings u/s 201(1) and 201(1A) - CIT(A) held that section 206AA is not applicable to non-resident entities to whom provisions of DTAA is applicable. Aggrieved, the revenue has filed these appeals before us - HELD THAT:- As noticed that the coordinate bench in M/S. BHARATH FRITZ WERNER LTD. [2020 (6) TMI 669 - ITAT BANGALORE] has followed the decision rendered in the case of Nagarjuna Fertilisers & Chemicals Ltd. [2017 (3) TMI 81 - ITAT HYDERABAD] and in the case of Danisco India Private Ltd.[2018 (2) TMI 1289 - DELHI HIGH COURT] in holding that the provisions of sec.206AA of the Act would not apply to a recipient of income, who is by the DTAA entered by India and his country. We notice that the Ld CIT(A) has decided this issue on identical lines. Accordingly, we uphold the view taken by Ld. CIT(A) on this issue. - Decided against revenue.
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2020 (8) TMI 848 - SUPREME COURT
Seeking sanction of modification of a Scheme under the provisions of Section 91 of the Maharashtra Regional and Town Planning Act, 1966 - HELD THAT:- From the records of the case, particularly the order dated 20.8.1970 of sub division of plot number 473 B and the award of the arbitrator, it is patently clear that the name of Pune Municipal Commissioner was at no point of time reflected as holder of the private road. There is no whisper as to how the road came to be shown as in possession of Pune Municipal Commissioner nor of the procedure adopted for effecting changes, if any, in the property records - On perusal of the documents, there can be no doubt at all that the road in question measuring 444.14 sqm. never belonged to the Pune Municipal Corporation. In the property records, there was no private road. There were three plots 473 B1, B2, B3 and 473 B4 shown as vacant land held by the owners of all the three adjacent plots.
The Municipal Corporation was never shown as owner of the vacant plot or of any private road. Even assuming that there was any policy decision to have an approach road to every plot, it was incumbent upon the authorities concerned to acquire the land. On the other hand, the scheme clearly records that the same was based on entries in property records, and the award of the arbitrator.
The right to property may not be a fundamental right any longer, but it is still a constitutional right Under Article 300A and a human right - In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law. The Appellant trust cannot be deprived of its property save in accordance with law.
The High Courts exercising their jurisdiction Under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration - In all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.
In the facts and circumstances of the instant case, in the light of admissions, on the part of the Respondent authorities that the private road measuring 414 sq. was private property never acquired by the Pune Municipal Corporation or the State Government, the Respondents had a public duty Under Section 91 to appropriately modify the scheme and to show the private road as property of its legitimate owners, as per the property records in existence, and or in the award of the Arbitrator - the Bombay High Court erred in law in dismissing the Writ Petition with the observation that the land in question had vested Under Section 88 of the Regional and Town Planning Act.
Appeal allowed.
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2020 (8) TMI 847 - GAUHATI HIGH COURT
Seeking enlargement on Bail - seizure of one live Kangaroo, three nos. of live exotic tortoises, 6 nos. of live blue Macaws, 2 nos. of live exotic monkeys - exotic animals - prohibited animals or not - violation of principles of natural justice - Wildlife (Protection) Act, 1972 - HELD THAT:- Any criminal investigation can be initiated only when an offence is committed under any penal provision of any statute in this country. It is in this context one has to examine as to whether the wild animals which had been rescued and seized by the Forest authorities from the petitioners fall within the category of prohibited animals to be in possession of under the Wildlife (Protection) Act, 1972 so as to endow jurisdiction to the authorities under the Act to initiate the proceeding against the present petitioners in connection with which they are presently lodged in the jail - As clearly mentioned in the forwarding letter dated 29.07.2020, the forest authorities themselves had admitted that none of these animals come under the purview of the Wildlife (Protection) Act, 1972 because of which the Forest authorities themselves made the request to the Chief Judicial Magistrate, Cachar to hand over the investigation of the case to the Custom Department if deemed fit and proper.
The forwarding report would clearly indicate that none of the seized animals come within the purview of the Wildlife (Protection) Act, 1972, in which event, the detention of the petitioners under the aforesaid Act would be prima facie not permissible. However, this Court is not making any observation as to the merit of the case at this stage as it is only for the purpose of considering the bail application on the basis of the aforesaid document, which is not disputed by the learned Special Public Prosecutor - this Court is also of the view that detention of the petitioners under the Wildlife (Protection) Act will not be proper as the petitioners cannot be said to have committed any offence under the Wildlife (Protection) Act, 1972. This Court has also noted that the Forest authority has mentioned the possibility of violation of the Customs Act, 1962 for which the Forest authorities also made the request to the learned CJM for handing over the investigation to the Custom Department if deemed fit and proper.
This Court is also of the opinion that if these exotic animals are not notified under Section 123 of the Customs Act, 1962, perhaps handing over the case to the Customs Department will not serve any purpose, as possession or transportation of these birds cannot be considered to be offence under the Customs Act as well - the learned Special Public Prosecutor has not disputed the fact that these seized animals do not come within the purview of the Wildlife (Protection) Act, 1972 in view of the forwarding report submitted by the Range Forest Officer, Hawaithang Range, Dholai.
This Court is satisfied that as seized animals do not come within the purview of the Wildlife (Protection) Act, 1972, the detention of the petitioners would not be permissible under the Wildlife (Protection) Act, 1972 and since the only case registered against the petitioners as on date is under the Wildlife (Protection) Act, 1972, this Court is of the view that the petitioners will be entitled to go on bail vis a vis the aforesaid case under the Wildlife (Protection) Act, 1972 unless wanted in connection with any other case.
The petitioners are allowed to go on bail on furnishing bail bond of ₹ 50,000/- with 2 (two) sureties each of like amount, one of which will be a local resident and another, a Government employee to the satisfaction of the learned CJM, Cachar, and the petitioners will fully cooperate with the investigation of the case and shall present themselves before the Investigating Officer of the case as and when directed to do so - Bail application allowed.
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2020 (8) TMI 846 - ITAT BANGALORE
Rectification of mistake u/s 254 - deduction u/s 54 - assessee has pointed out that even after allowing deduction u/s. 54 of the Act, there would still be long term capital gain that would be chargeable to tax - Tribunal has proceeded on the basis that consequent to allowing deduction u/s. 54, there would be no long term capital gain that would remain for taxation - HELD THAT:- There is a mistake apparent on the face of record inasmuch as even after allowing deduction u/s 54 of the Act, there would still be long term capital gain that would be chargeable to tax and therefore the question of period from which indexation benefit should be allowed to the assessee ought to have been adjudicated. We accordingly recall the order of the Tribunal dated 30.12.2019 for the limited purpose of examining the question with reference to period for which the assessee should be allowed the benefit of indexation while computing the long term capital gain. The Registry is directed to post the appeal for hearing in due course with notice to the parties.
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