|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1470 Records
-
2022 (1) TMI 1484
Amendments to the Marketing Discipline Guidelines (MDGs) 2012 - detection of large scale malpractices in some States at the time of supply and dispensation of petroleum products to the customers, by manipulating software/hardware - HELD THAT:- The relationship between the Dealers and the Appellants is guided by Dealership Agreement subsisting between them. The said agreement provides for certain obligations on the part of Dealers and in terms of breach of such terms, the Appellants have a right to take action, including termination of Dealership Agreement. The civil right under the agreement is obviously in addition to and not in substitution to right of various State Authorities or their Instrumentalities to take action against the Dealers for violation of the terms of the Agreement or the directions issued to them under the MDGs.
Appellants have formulated common Guidelines to provide for uniform and consistent practices and action against the Dealers in the form of MDGs. The provisions of MDGs are essentially between the Appellants and the Dealers, covering their rights and obligations, on various counts such as, methodology of sampling, filling and decantation of tank lorries, maintenance of equipment at Retail Outlets and other aspects of purely commercial nature and linked with the Dealership Agreement - The MDGs for Retail Outlets/SKO Dealerships, which have been in existence for last 3 decades, facilitate marketing of petroleum products (MS/HSD/SKO) by the Dealers on the principles of highest business ethics and excellent customer service.
Penalties are imposed where malpractices and/or violation of Guidelines are established as the Dealers are expected to carry on business on the principles of highest business ethics and excellent customer service, complying with the Guidelines.
Conclusion - i) The amendments to the MDGs upheld, affirming the OMCs' authority to enforce them under the Dealership Agreement. ii) The imposition of penalties for major irregularities upheld, rejecting the argument that OMCs cannot levy penalties under the Indian Contract Act.
Appeal allowed in part.
-
2022 (1) TMI 1483
Arising of dispute between the rival parties to enable the respondent to invoke Section 9 of the 1996 Act - absence of any termination of the dealership - HELD THAT:- The show cause notice was issued on 31.03.2021 asking the petitioner to show cause as to why his dealership agreement be not terminated for certain lapses for discovery of illegalities prima facie demonstrating manipulation of dispensing unit, operation and delivery of fuel from dispensing unit. In response, the respondent initially sought time on 03.05.2021 vide Annexure A/3 which was granted by extending the period of submission of reply by 11.6.2021. As per the contents of para 4.3 of this appeal, the IOC has submitted that the respondent had filed reply to the show cause notice and thereafter was given a personal hearing on 09.09.2021 vide Annexure R/5.
It is vivid that on the IOC issuing a show cause notice and respondent refuting the same by way of reply and in the personal hearing, dispute between the rival parties germinated making available cause of action to the respondent to invoke Section 9 of the 1996 Act.
Conclusion - A dispute under the 1996 Act arises from the assertion of a claim by one party and its refutation by another, independent of any final decision on the matter.
No case for interference is made out. Appeal stands dismissed.
-
2022 (1) TMI 1482
Seeking for quashing, cancellation and setting aside the FIR - allegations in the FIR constitute the necessary ingredients of the offenses under Sections 406, 408, and 420 of the IPC or not - FIR filed in suppression of all relevant facts - HELD THAT:- From the plain reading of the FIR, it reveals that the informant has alleged that the petitioner company has taken certain amount for supply of grains in terms of the agreement entered into between the parties, but neither grains was supplied nor money was returned. The said conduct of the petitioner company is stated to be a breach of trust by cheating. Although the FIR was filed on 01.02.2017, but they have not disclosed certain facts which goes to the root of the matter - As it was a commercial transaction between the parties, it was incumbent on the part of the informant/respondent side to settle the dispute in terms of the agreement rather than to flout such agreement and resort to criminal proceeding. From the various admitted communication between the parties vide Annexure-6 it reveals that the informant company has given reply to the letter dated 05.09.2016 only after filing of the case on 06.02.2017 denying any liability to pay such amount on their part, making some counter claim from the petitioner company.
From the documents on record, it reveals that the petitioner side has served written notice (vide Annexure-10 dated 19.08.2017) upon the respondent for arbitration and the respondent has also accepted the proposal (vide Annexure-11 dated 14.09.2017) showing willingness to appoint arbitrator of their choice. Pursuant to which the petitioner filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of sole arbitrator in terms of Clause 20 of the agreement dated 16.01.2015 which was registered as AP No. 1144/2017.
In All Cargo Movers (India) Private Limited and Others –vs- Dhanesh Badarmal Jain and Another [2007 (10) TMI 620 - SUPREME COURT], Suneet Gupta – vs- Anil Triloknath Sharma and Others [2008 (4) TMI 837 - SUPREME COURT], Satishchandra Ratanlal Shah –vs- State of Gujarat [2019 (1) TMI 1632 - SUPREME COURT] and Another similar view has been reiterated that mere breach of promise, agreement or contract does not ipso facto constitute an offence criminal breach of trust under Section 405 IPC without there being clear case of entrustment. Further, it has been held that allegations in the criminal complaint must disclose necessary ingredients thereof. The court can for the purpose of finding out as to whether said allegations are prima facie correct, take into consideration the correspondence exchanged by the parties and other admitted documents. Criminal proceedings should not be encouraged while is found mala fide or otherwise abuse of the process of the court. Further, it is held that the superior court while exercising inherent power under Section 482 CrPC, the court should strive to serve the ends of justice.
Undoubtedly, it is settled proposition of law that the complaint must disclose necessary ingredients of the offence. Turning to the present case in hand, as mentioned above, the FIR failed to disclose the necessary ingredients of either of the offences under Section 406 and 420 IPC. There is nothing to show that the petitioner had the dishonest intention at the time of execution of the agreement between the parties and their subsequent conduct for raising a claim for certain amount of money would not amount to cheating - This Court did not find any justification shown by the prosecution agency in carrying out the investigation in a hurried manner, only on the basis of the FIR without scrutinizing as to whether the registration of a case under Section 406 and 420 IPC is justified in absence of basic ingredients constituting the offences. Although it is mandatory to register a case under the law and the investigating authority has the statutory right for investigation but it equally important on the part of the prosecuting agency for registration of the cases under proper provision of law. Mere using the words cheating and breach of entrustment in the FIR is not enough to register the case on the same section, without satisfying as to whether ingredients of such offence has been made out.
Conclusion - The present case warrants interference, inasmuch as the ingredients of the offence of cheating punishable under Section 420 and the other offences 406/408 of IPC has not been made out in the FIR. That being the position, the case comes within the purview of the first category of the observation in State of Haryana vs. Bhajan Lal, [1990 (11) TMI 386 - SUPREME COURT] wherein it has been held that where the allegation made in the First Information Report or the complaint, even if they are taken at their face value, and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused, the power under Section 482 CrPC can be invoked. As discussed above and the present case, reading the averment in the FIR in its entirety, the ingredients of intentional deception on the part of the accused at the beginning of the negotiations/agreement has neither been expressly stated or indirectly suggested in the complaint.
The entire proceeding is quashed - petition allowed.
-
2022 (1) TMI 1481
Maintainability of petition under Article 226 of the Constitution of India - demand of additional stamp duty from the petitioner - HELD THAT:- The present petition is brought before this Court under its extraordinary writ jurisdiction under Article 226 of the Constitution of India, and while in Genpact [2019 (11) TMI 1118 - SUPREME COURT] the Hon’ble Apex Court, referring to UP Rajya Khanij [2008 (5) TMI 642 - SUPREME COURT] has observed that a petition brought before a High Court under Article 226 of the Constitution of India may be dismissed in light of availability of an effective and alternative remedy, and non-dismissal of such petition merely on the ground that such a petition has already been admitted, would be an incorrect understanding of the law.
Keeping in mind the facts and circumstances of the case, and in light of the fact that a statutory alternate remedy is available to the petitioner, and deriving strength from the decisions rendered by the Hon’ble Apex Court in Genpact and Ansal Housing, this Court does not find it a fit case for making any interference.
The present petition is dismissed.
-
2022 (1) TMI 1480
Payment of interim compensation under Section 143-A of the Negotiable Instruments Act - retrospective application or not - HELD THAT:- It is deemed appropriate to allow the instant miscellaneous petition on the following terms that the provision contained in Section 143 of the Negotiable of Instruments Act has no retrospective application as decided by the Hon'ble Supreme Court in G.J. Rana Vs. Tejraz Surana [2019 (8) TMI 91 - SUPREME COURT]. The Hon'ble Supreme Court, after analysis of the provision has ruled that Section 143 is prospective in operation and that the provisions of Section 143-A can be applied or invoked only in cases where the offence under Section 138 of the Act was committed after the introduction of said Section 143-A under the statute book. Indisputably the cheque dated 09.06.2017 was dishonored and it is evident that the cause of action had arisen prior to the commencement of the said provision.
The order dated 04.04.2019 passed by the Special Magistrate No. 7, Negotiable of Instruments Act Cases, Jaipur Metro Jaipur and the subsequent order dated 27.02.2020 are hereby quashed and set aside to the extent, it directs the petitioner to deposit the interim compensation of Rs. 1,00,000/-. The other content of the order dated 04.04.2019 would remain intact. The trial Court may proceed further in accordance with the provisions of law.
Petition allowed.
-
2022 (1) TMI 1479
Non-inclusion of freight amount as part of the sale price - Whether in the facts and circumstances of the case the Rajasthan Tax Board was justified in law in not appreciating the provisions of Section 2(36) of the RVAT Act and Section 2(h) of CST Act and thereby deleting the tax, interest of penalty qua the freight amount which was part of invoice? - HELD THAT:- As contained in para 11 of the impugned order specific finding has been given that freight/transport cost was separately reflected in the invoices on actual expenditure. No extra consideration was received by the respondent on account of cost of freight and therefore, the same is in conformity with the provisions of Section 2(36) and Section 2(h) of RVAT Act, 2003 and CST Act, 1956 respectively and will not form part of assessable value. The judgment of Hon’ble Apex Court in INDIA METERS LIMITED VERSUS STATE OF TAMIL NADU [2010 (9) TMI 878 - SUPREME COURT] relied upon by revenue wherein it was held that, freight cost will form part of sale price, is distinguishable on following counts:- (i) The provisions of RVAT Act, 2003 and CST Act, 1956 are not pari materia to the provisions of Tamil Nadu General Sales Tax Act, 1959. (ii) In that matter the goods in question were electric meters and were supplied to the Electricity Board and the delivery was not ex-factory. (iii) Both the appellate authorities have concurrently held on the basis of invoices, books of accounts and records that freight cost/transport cost was separately reflected in the invoices.
Thus, no interference is called for in the present revision petition. The same is hereby dismissed.
-
2022 (1) TMI 1478
Admission of additional evidence by CIT-A - As per AO evidences not been forwarded to the AO to examine & verify the same and thereby violated the provisions contained under Rule 46A(3) of IT Rules, 1962 - HELD THAT:- Since the evidence entertained by Ld. CIT(A) during the appellate proceedings has not seen the light of the day during assessment proceedings and AO has never been given an opportunity to look into and verify the facts taken in the additional evidence, the order passed by the Ld. CIT(A) is not sustainable, hence liable to be set aside.
Consequently, case is remitted back to the AO to decide afresh, in the light of the directions issued by the co-ordinate Bench of the Tribunal BAJAJ ENERGY LTD (FORMERLY KNOWN AS BAJAJ ENERGY PVT. LTD.) [2017 (10) TMI 1595 - ITAT MUMBAI] after providing opportunity of being heard to the parties. Appeal filed by the Revenue is allowed for statistical purposes.
-
2022 (1) TMI 1477
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - advance payment paid by the Operational Creditor and not refunded by the Corporate Debtor - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It is an admitted position that in the instant case, it is the corporate debtor who is the service provider and not operational creditor and operational creditor has only filed the present petition on the basis of an advance payment paid by the Operational Creditor and not refunded by the Corporate Debtor. The said advance does not fall within the four corners of Operational Debt. Therefore, we are of the opinion that the alleged debt is not an "Operational Debt" as defined u/s 5(21) of IBC, 2016.
The Present Petition is dismissed without any cost.
-
2022 (1) TMI 1474
Maintainability of appeal on low tax effect - HELD THAT:- It is noted that in this appeal, the tax effect is below monetary limits of Rs.50 lakhs as prescribed under the CBDT circular No.3/2018 dated 8th August, 2019.
As relying on Dinesh Madhavlal Patel [2019 (8) TMI 752 - ITAT AHMEDABAD] deserves to be dismissed.
-
2022 (1) TMI 1473
Addition as unexplained expenditure/investment - difference between the sale value mentioned in the agreement and actual sale deed value - HELD THAT:- The assessee entered into sale agreement with Smt. Rekha Venugopal for purchase of land at Rs. 5 lakhs per acre. However, the sale deed shows the sale value of Rs. 50,000/- per acre. The explanation given by the assessee is that sale value shown in the sale agreement is at Rs. 5 lakhs is only for the purpose of availing higher amount of loan.
We find that adjacent land situated to the land sold by Smt. Rekha Venugopal to M/s Emmvee Energy Ltd., is for Rs. 5 lakhs per acre. This was brought on record by the AO by referring the sale deed of M/s Emmvee Energy Ltd., executed by the same owner to the assessee. On this, the assessee was unable to give any convincing reply to show that how she sold the adjacent land for Rs. 5 lakh per acre. Being so, it cannot be said that the assessee has purchased a land at Rs. 50,000/- per acre from Smt. Rekha Venugopal and Shri G.N Venugopal, the property situated next to the property of M/s Emmvee Energy Ltd., Being so, in our opinion, the explanation offered by the assessee is not having any basis. Hence, the lower authorities are justified in confirming the addition made by the AO on this count. Accordingly, this ground of appeal of the assessee is rejected and dismissed.
Depreciation on installation of solar plant - AO denied claim for reason that solar plant was ready but it was not actually put to use - HELD THAT:- In our opinion, the CIT (A) has taken a concrete view which is based on the facts of the case and in the present asst. year under consideration, the assessee generated solar power and sold the same to M/s EMMVEE Photovoltaic Power Pvt. Ltd., at Rs. 18,276/- and thus, the amount has been offered for taxation by entering it in the profits and loss account. Assessee has also produced invoices for sale of power to M/s EMMVEE Photovoltaic Pvt. Ltd., and the usage of solar plant was established.
In the case of CIT Vs. Chamundeshwari Sugar Ltd [2008 (10) TMI 98 - KARNATAKA HIGH COURT] is squarely applicable, wherein it was distinguished the earlier judgment in the case of DCIT Vs. Yellamma Dasappa Hospital [2006 (11) TMI 150 - KARNATAKA HIGH COURT] and observed that hospital has brought certain machinery and no evidence was placed to prove its use during the asst. year but claimed depreciation. However, in the present case solar plant was put to use and power was generated. In our opinion, solar plant was used for generation of electricity. Thus the date on which the asset has been put to use is the date on which power was produced and not when it supplied electricity to the grid. Once the electricity was generated and it was sold, the depreciation of such solar plant cannot be denied. Decided against revenue.
-
2022 (1) TMI 1472
Maintainability of appeal - question of law involved in remand order or not - Refund of unutilized CENVAT Credit - Denial on account of nexus - as decided by HC [2018 (6) TMI 1202 - KARNATAKA HIGH COURT] no substantial question of law arises for consideration by this Court and therefore the appeal filed by the Revenue was dismissed.
HELD THAT:- Considering the fact that the impugned order follows a previous precedent which has become final, we decline to interfere in the present special leave petition.
We make it clear that all proceedings pending between the parties must be decided on its own merits in accordance with law.All contentions available to both sides in the proceedings pending or to be pursued between the parties with regard to the subject matter, shall be decided on its own merits.
Special leave petitions are disposed of accordingly.
-
2022 (1) TMI 1471
Right to speedy trial - Suspension of the remaining sentence of the applicant-appellant during the pendency of the appeal - selling poppy husk in the States of Punjab and Haryana, after purchasing the same from Rajasthan - primary submission of applicant is that the applicant having undergone 08 years 11 months 19 days of substantive sentence of 12 years, ought to be considered for suspension of the rest of his sentence as the pending appeal is not likely to be heard in the near future in view of the COVID-19 pandemic - HELD THAT:- That the right to a speedy trial and expeditious disposal of the appeal flows from Article 21 of the Constitution of India, is no longer res integra. The Hon'ble Supreme Court in ABDUL REHMAN ANTULAY VERSUS R.S. NAYAK [1991 (12) TMI 274 - SUPREME COURT] held 'An objection based on denial of Right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.'
In the recent case of MOSSA KOYA KP VERSUS STATE (NCT OF DELHI) [2021 (12) TMI 1395 - SUPREME COURT], the Hon'ble Supreme Court granted the concession of bail to the applicant who had undergone 08 years of his substantial sentence of 10 years.
The applicant in the present case is a prior convict, and therefore, his case would be an exception to the ratio of the law laid down in DALER SINGH VERSUS STATE OF PUNJAB [2006 (12) TMI 576 - PUNJAB AND HARYANA HIGH COURT]. However, on having examined the factual matrix in the case of the applicant, it is required to suspend the rest of the sentence of the applicant.
In view of the aforesaid discussion, the applicant ought to be released on bail having undergone 08 years 11 months and 19 days of his substantive sentence of 12 years - the present application is allowed and the rest of the sentence imposed on the applicant-appellant namely Rajender Singh is suspended subject to his furnishing necessary surety bonds/bail bonds to the satisfaction of the Chief Judicial Magistrate/Duty Magistrate, Fatehabad.
-
2022 (1) TMI 1470
Correctness of Supreme court disposing of the proceedings with liberty as noted in order dated 8th March, 2019 - HELD THAT:- The order records that in remand proceedings pending before the adjudicating authority, all contentions available to both sides be examined on its own merits. It now transpires that no remand proceedings were pending on 8th March, 2019. As that assumption was incorrect, which led to the passing of the order dated 8th March, 2019, we recall the order and direct the Registry to post the Special Leave Petition (Civil) and connected matter(s) for hearing on 31st January, 2022.
The subject cases stand restored to the file to their original number(s) in terms of this order.
-
2022 (1) TMI 1469
Deficit of stamp duty and penalty - purchase of immovable property - HELD THAT:- There is no doubt in this case that the market value was the bid of the Petitioner as accepted by the Justice Lodha Committee and that the sale was confirmed at the amount of the Petitioner's bid by SEBI. In this view of the matter, there is no question of the stamp authorities determining any other value. The only value to be accepted is Rs. 1,66,57,920/-. The stamp duty on this is Rs. 9,99,475/-. There is no question therefore of allowing the stamp authorities to demand any other amount. There is certainly no question of a penalty.
The Stamp duty will be paid by the Petitioner within two weeks from today - there will be no order as to costs.
-
2022 (1) TMI 1468
Validity of Reassessment u/s 147 - reasons to believe - whether the order passed by the Tribunal affirming the order passed by the CIT (A) holding that the reassessment was bad in law calls for interference? - HELD THAT:- We find that initially the assessing officer did not comply with the mandate in GKN Driveshaft ( India) Ltd [2002 (11) TMI 7 - SUPREME COURT] in the sense that he did not pass a speaking order on the objection given by the assessee to the proposal to reassess the income.
When this order was put to challenge before the CIT (Appeals), the order was set aside and the matter was remanded to the assessing officer to pass a speaking order on the objection by keeping the appeal pending on the file of the CIT(A).
Despite such opportunity, the assessing officer failed to follow the mandate laid down in GKN Driveshaft (India) Ltd. When the appeal was taken up by the CIT (Appeals), this aspect was noted and relief was granted to the assessee. This order was tested for its correctness by the Tribunal and on facts we find that the Tribunal was right in holding that the order passed by the CIT (Appeals) holding that the reassessment proceedings were bad in law had attained finality.
-
2022 (1) TMI 1467
Beneficial ownership of assets/corpus of the Trust - assets and credits in the bank account of an independent company incorporated outside India treated or held to be belongs to the Assessee - Real owners of bank accounts in foreign jurisdictions pertaining to offshore entities where assessee is declared as ‘beneficial owner’ for anti-money laundering
HELD THAT:- We observe that the Income Tax Act does acknowledges the existence of oral trusts within the framework of Section 160(1)(v) read with section 164A, as well as the Indian Trusts Act, 1882. Offshore trust structures are governed by laws of incorporation of the respective countries in which they are incorporated, which in this case, are governed by the laws of British Virgin Islands.
The coordinate Bench in the case of Yashovardhan Birla [2021 (1) TMI 381 - ITAT MUMBAI] has held that offshore trusts / entities incorporated in offshore jurisdictions are liable to be taxed in their respective offshore jurisdictions.
With regard to the signatory powers and bank records of the Trust Vehicle, the matter is clearly settled in the case of Yashovardhan Birla [2021 (10) TMI 158 - ITAT MUMBAI] also in the matter of Kamal Galani [2020 (10) TMI 1077 - ITAT MUMBAI] and Shri Jatinder Mehra [2021 (7) TMI 325 - ITAT DELHI] and where they have concluded inter alia that bank accounts in foreign jurisdictions pertaining to offshore entities cannot, merely because the assessee is declared as ‘beneficial owner’ for anti-money laundering, purposes be treated as belonging to the assessee.
Therefore, on the basis of declaration of beneficial ownership in the bank account opening form, it cannot be concluded that the bank account belongs to the Assessee and therefore the credits to the bank account cannot be taxable in the hands of the Assessee.
As not disputed that the Assessee, a resident Indian, who accepted the obligation associated with the office of trustee, arising out of an abiding familial relationship with the Settlor, which was revoked at the discretion of the Settlor six years later in 2012. AO has not brought out any evidence of the Assessee having international transactions relating to the bank account of the Trust Vehicle or having contributed to the corpus/funds in the bank account of the Trust Vehicle nor any allegation or material to the effect that the Assessee has received any funds or any other benefit.
AO has also not established nor contented the Trust Vehicle or its underlying entity is a bogus or fictitious entity, nor the case of the Assessing Officer that the Assessee was the controlling person of the Trust Vehicle or its underlying entity or in any manner a contributor to the corpus/assets of the Trust Vehicle from any source in India. Therefore, sums lying in its bank account and/or its income from investments, are not subject to tax in the hands of the Assessee.
As well settled law that in the case of additions of similar nature where the onus of proof to establish the (beneficial) ownership particulars of the non-resident Trust Vehicle, will always rest with the Revenue. The Revenue cannot attempt to shift the onus upon the Assessee, including through calling upon an assessee to offer negative proof.
Nature of additions that have been made u/s 56, 68 and 69 - Hon’ble Supreme Court has clearly laid out the Principles of strict interpretation of a taxing statute in the case of PCIT v. Aarham Softronics [2019 (2) TMI 1285 - SUPREME COURT] and therefore arbitrary invocation of ss. 56(1), 68 and 69 of the Act cannot be resorted to.
In the case of the Assessee, the explanations about the nature and source of sum so credited can proper only be offered by the non-resident entity in whose books/bank accounts such cash credit recorded. AO has applied Section 68 to sums lying to the credit of the bank account of a non-resident entity as cash credit in the hands of the Assessee. The Assessee has also pointed out that in any event, without prejudice, the opening balance of sums lying to the credit of the non-resident entity cannot be taken into account for computing taxable income of the Assessee under s. 68 for assessment years 2009-10. Under Section 69 of the Act, investments not recorded in the books of accounts of the Assessee, but in relation to which the Assessee has ‘beneficial ownership’, has been brought to tax in the hands of the Assessee. Further, the scope of Section 69 cannot be extended to bringing to tax investments of a nonresident entity in the hands of a resident individual, in the absence of material to support the inference of ‘beneficial ownership’.
In our view, the additions made u/s 68 / 69 fail the test of taxability under those sections and therefore cannot be upheld.
Thus, we hold that the credit to the bank account belonging to Eagle Ridge Services Limited, an independent entity registered outside India and income as well as the assets of that company cannot be brought within the purview of income tax in India in the case of the Assessee particularly when the assessee was acting as a trustee holding one share of the company again holding the shares in the capacity of trustee. All the additions made in the capacity of holding as trustee of offshore trust and nominee shareholder are hereby deleted. Appeal filed by the assessee is allowed.
-
2022 (1) TMI 1466
Time limit for the completion of the block assessment u/s 158BE - Whether Tribunal is right in law in holding that the assessment order dated 30.06.2003 was barred by limitation, especially when the last of Panchanama was dated 01.06.2001?
HELD THAT:- The prohibitory order was lifted on 29.01.2001 and hence, the Tribunal was of the opinion that the subsequent panchanama from 29.01.2001 are irrelevant and the time shall be reckoned for the purpose of determining the time limit for the completion of the assessment u/s 158BE from the end of the month of January 2001. Accordingly, the assessment order should be completed on or before 31.01.2003, whereas the assessing officer completed the assessment only on 30.06.2003, which is absolutely time barred. Tribunal set aside the assessment order. We do not find any infirmity or illegality in the order so passed by the Tribunal, warranting interference.
This court has categorically held that 'mere fact that the panchanama contains the observation that 'search continues' per se would not enable the search party to keep the search in a suspended animation to carry on the search in future date to contend that the limitation has to be worked out on the last panchanama drawn' and the same is squarely applicable to the facts of the present case. It is also brought to the notice of this court that the appeal filed by the Revenue by way of Civil Appeal was dismissed by the Hon'ble Supreme Court in A. RAKESH KUMAR JAIN [2019 (10) TMI 1592 - SC ORDER]
We decide the substantial questions of law involved herein in favour of the assessee.
-
2022 (1) TMI 1465
Existence of Permanent Establishment (PE) in India - Income deemed to accrue or arise in India - Attribution of receipts to the alleged PE Estimation of gross profit attributable to the alleged PE - HELD THAT:- The entire grounds raised by the assessee are covered by the Co-ordinate Bench decision of this Tribunal in assessee’s own case [2021 (5) TMI 1085 - ITAT MUMBAI] as relying on Gemmological Institute of America Inc. [2019 (7) TMI 859 - ITAT MUMBAI] after threadbare examining business model of the assessee and the provision of Article – 5 of India-US DTAA held that GIA India Lab.Pvt. Ltd. is not PE of GIA-US in India.
We find that Article -5 of India-US DTAA and Article - 5 of India - Thailand DTAA have almost similar clause. Both sides are unanimous in stating that the nature of transactions and terms and conditions of transactions between assessee and Indian AE in both the cases are similar.
Revenue has not brought on record any distinguishing factor in the present set of appeals before us. Therefore, the findings given by the Coordinate Bench of Tribunal while adjudicating the appeal in the case of assessee”s group concern GIA-US would mutatis mutandis apply to present appeal. Thus, we hold that GIA India Laboratories Pvt. Ltd. is not agency PE/PE of the assessee. Consequently, ground No.2 of the appeal is decided in favour of the assessee.
Assessee has assailed attribution to the alleged PE in India. Since, the assessee has succeeded on the primary issue, the alternate ground has become academic, therefore, not deliberated upon. Appeal of the assessee is allowed.
-
2022 (1) TMI 1464
Rejection of application filed by the Petitioner-Finance Company under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
Whether the present writ petition is maintainable in view of the remedy provided under Section 17 of the SARFAESI Act, 2002? - HELD THAT:- The petitioner does not have any alternative and statutory remedy before the Tribunal to lay challenge to the impugned order of the Magistrate rejecting its application under Section 14 of the Act, 2002. It is well settled that any aggrieved person cannot be left remediless as held by the Hon’ble Supreme Court in Sunil Vasudeva V/s Sundar Gupta [2019 (8) TMI 374 - SUPREME COURT], which has been relied upon by a Division Bench of Punjab and Haryana High Court in Anu Bhalla V/s District Magistrate, Pathankot [2020 (9) TMI 1194 - PUNJAB AND HARYANA HIGH COURT]. Consequently, the present petition under Article 226 of the Constitution of India is held to be maintainable.
Whether Chief Judicial Magistrate would have the jurisdiction to entertain an application under Section 14 of the SARFAESI Act, 2002? - HELD THAT:- A perusal of Section 14 nowhere reflects that the authorities mentioned therein are required to act only after issuance of a notification to that effect. Besides, learned Senior Counsel for the Opposite Parties have not been able to show any provision, where by a notification was contemplated to be issued for any authority to exercise jurisdiction and/or Chief Judicial Magistrate could only act thereafter. Once the notified provision (Section 14) itself enables the authority to exercise jurisdiction, it is sufficient for the said authority to exercise powers as provided for with in the ambit of the provision. Consequently, the aforesaid argument of the Opposite Party Nos.2 and 3 cannot sustain and hence is rejected - the issue in affirmative and therefore hold that the Chief Judicial Magistrate would be equally competent to entertain an application filed by the secured creditor under Section 14 of the Act, 2002 and would be entitled to pass such orders as would be required to provide assistance to the secured creditor to take over physical possession of the secured assets.
Scope of exercise of jurisdiction by the authorities concerned, while examining an application under Section 14 of the Securitisation Act, 2002 - HELD THAT:- It is to be noticed that Section 14 of the Act, 2002 was amended with effect from 15.01.2013 and a proviso was added, which requires the secured creditor to file an application accompanied with an affidavit duly affirmed by the authorised officer of the secured creditor with respect to 9 points stipulated therein. Such recording of satisfaction is only to be restricted with regard to the factual correctness of the affidavit filed by the secured creditor and cannot be stretched to include any quasi-judicial or an adjudicatory function.
The impugned order dated 09.03.2021 (Annexure P-1) passed by the Chief Judicial Magistrate, Cuttack is set aside - petition allowed.
-
2022 (1) TMI 1463
Additional depreciation u/s 32(1)(iia) read with proviso (B) - denial of claim as proviso (B) to Section 32(1)(iia) bars deduction under the said Section to another plant and machinery installed in any office premises or any residential accommodation including accommodation in the nature of a guest house - Tribunal held that installation of new plant and machinery in sales outlet/retail office would fall under Clause B of proviso to Section 32(1)(iia) of the Act and agreed with the submission made by the revenue - HELD THAT:- The substantial question of law which has been raised for our consideration has in fact been answered in favour of the revenue by the Tribunal and the present exercise which is sought to be done before us is purely academic. Learned Standing Counsel pointed out that in paragraph 2.6 of the impugned order passed by the Tribunal there is a reference to the written down value and that aspect is what the revenue has raised before this Court in this appeal as pointed out earlier.
The legal issue which has been raised before us has been decided in favour of the revenue and it has been held that the assessee is not entitled for deduction as their case would fall under Clause B of proviso to Section 32(1)(iia) of the Act. Therefore, the substantial question of law framed before us is not required to be answered in this appeal as it has been decided in favour of the revenue by the Tribunal themselves.
........
|
9911796707
