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Showing 261 to 280 of 1203 Records
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2021 (11) TMI 943
Attachment of property of petitioner - seeking to declare the action of respondent No.1 in attaching her property under the guise of the said notice as illegal and arbitrary - Section 25 of the Andhra Pradesh Revenue Recovery Act, 1864 - Whether the petitioner has got the locus standi and whether there exists any cause of action to challenge the notice titled “Demand prior to attachment of land” dated 30.01.2006 issued by the Deputy Commercial Tax Officer, Khammam? - HELD THAT:- In the case on hand, as per the version of the petitioner herself, the property was got registered in her name in the year 2006. Of course, her version is also that she came into possession of the property through irrevocable General Power of Attorney in the year 2003 and therefore, she got mutated her name in the relevant revenue records. The General Power of Attorney would not confer any title to the property and even if the contention of the petitioner that she got title to the property in the year 2003 has to be believed upon, there may not be any necessity to get the property registered in her name in the year 2006. That itself goes to show that the petitioner became the absolute owner of the property in the year 2006 - the petitioner herself in the written representation submitted to respondent No.2, which forms part of record and which was submitted by the petitioner herself, made a mention that by paying the balance sale consideration, she got the property registered in her name on 15.02.2006. Undisputedly, the impugned notice was issued on 30.01.2006. Thus, by the said date, no cause of action accrued to the petitioner. Even subsequently also, there is no cause of action for the petitioner.
Thus, the writ petition is filed by the petitioner without any cause of action.
Whether the petitioner has made out a case to grant the relief sought for by invoking the jurisdiction of this Court under Article 226 of the Constitution of India? - HELD THAT:- The law is well settled that in appropriate cases in spite of availability of alternative remedy, the High Court may still exercise its writ jurisdiction where the writ petitioner seeks enforcement of any of the fundamental rights, where there is violation of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or where the vires of any Act is under challenge - In the case on hand, the petitioner seeks the indulgence of this Court to restrain a competent authority from performing his duties which he is bound to perform under the statute. As such, the writ jurisdiction cannot be invoked.
This Court concludes that the relief sought for cannot be granted invoking the jurisdiction of this Court under Article 226 of the Constitution of India which should be exercised only in appropriate and befitting cases - Petition dismissed.
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2021 (11) TMI 942
Assessment of escaped turnover - time limitation - it is submitted that the impugned orders are clearly vitiated by limitation as the same are beyond six years from the date of assessment - Section 27 of TNVAT Act - Assessment Years 2011-12 and 2012-13 - HELD THAT:- Learned counsel adverting to the impugned order submits that sufficient opportunity has been given to the writ petitioner and in support of her contention, learned counsel draws the attention of this Court to the tabulation which talks about nature of opportunity given. It appears that opportunity has in fact been given to the writ petitioner, but there are lacunae, which this Court is able to see. They are, the impugned order does not say what transpired on 07.12.2020 and does not even mention the term 'personal hearing'. The other lacuna is, objections, though received on 10.03.2021, have not been considered in the impugned order dated 12.03.2021.
Impugned orders are set aside solely on the ground that there is no mention about personal hearing on 07.12.2020 in spite of a specific directive from this Court and the objections of the writ petitioner received on 10.03.2021 have not been considered - Petition disposed off.
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2021 (11) TMI 941
Maintainability of suit - suit is barred by Section 34 of the SARFAESI Act, 2002 or not - acquisition of rights under Assignment deed - fraud with respect to the assignment deed - HELD THAT:- The allegations of ‘fraud’ are made without any particulars and only with a view to get out of the bar under Section 34 of the SARFAESI Act and by such a clever drafting the plaintiff intends to bring the suit maintainable despite the bar under Section 34 of the SARFAESI Act, which is not permissible at all and which cannot be approved. Even otherwise it is required to be noted that it is the case on behalf of the plaintiff – appellant herein that in view of the approved resolution plan under IBC and thereafter the original corporate debtor being discharged there shall not be any debt so far as the plaintiff – appellant herein is concerned and therefore the assignment deed can be said to be ‘fraudulent’. The aforesaid cannot be accepted.
In any case, whether there shall be legally enforceable debt so far as the plaintiff – appellant herein is concerned even after the approved resolution plan against the corporate debtor still there shall be the liability of the plaintiff and/or the assignee can be said to be secured creditor and/or whether any amount is due and payable by the plaintiff, are all questions which are required to be dealt with and considered by the DRT in the proceedings initiated under the SARFAESI Act. It is required to be noted that as such in the present case the assignee has already initiated the proceedings under Section 13 which can be challenged by the plaintiff – appellant herein by way of application under Section 17 of the SARFAESI Act before the DRT on whatever the legally available defences which may be available to it.
The suit filed by the plaintiff – appellant herein was absolutely not maintainable in view of the bar contained under Section 34 of the SARFAESI Act. Therefore, as such the courts below have not committed any error in rejecting the plaint/dismissing the suit in view of the bar under Section 34 of the SARFAESI Act - Appeal dismissed.
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2021 (11) TMI 940
Dishonor of Cheque - dispute involved in all the three revision petitions has been amicably resolved and the due amounts have been paid to the complainant - compromise has been effected between the parties without any pressure, undue influence or misrepresentation, or not - Section 147 of the Negotiable Instruments Act, 1881 read with Section 320 (6) Cr.P.C. - HELD THAT:- It is apparent that both the contesting parties are ad idem with respect to the fact that the compromise has been effected between the parties without any pressure, threat or undue influence and the terms of the said compromise have been duly complied with. The compromise would go a long way in maintaining the peace and harmony between the parties and thus, a prayer has been made to the Court for compounding the offence in terms of Section 147 of the Negotiable Instruments Act, 1881 read with Section 320 (6) Cr.P.C.
Since the offence relating to dishonour of cheque has a compensatory profile and is required to have precedence over punitive mechanism, therefore, the present revision petitions deserve to be allowed.
Petition allowed.
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2021 (11) TMI 939
Dishonor of Cheque - rebuttal of presumption - Existence of legally recoverable debt or not - cheque issued as a security cheque or not - Sections 118 and 139 of NI Act, 1881 - HELD THAT:- A joint reading of Sections 118 and 139 of the Act of 1881 would raise a legal presumption in favour of holder of the cheque that the same was received from the drawer in discharge of whole or in part of any legal debt or liability. Although, the said presumption is rebuttable but in the present case, no such fact is even prima facie proved on record to rebut the said presumption. Neither any document with respect to any loan having been taken from the said Babla has been produced nor there is any proof much less in writing, to even remotely show that any such loan was repaid. Both the Courts below have observed that the defence raised by the petitioner seems to be an afterthought inasmuch as once the alleged loan which was taken from Babla was returned, even then nothing in writing had been taken from the said Babla, clarifying that the cheque which was allegedly issued as a security cheque was not traceable and the amount was being returned - the defence sought to be put forth did not inspire confidence of both the Courts below.
In the present case, it is not even remotely shown that the cheque in question which has been admittedly signed by the petitioner was issued as a security cheque. There is nothing on record to disbelieve the version of the complainant to the effect that the same was issued in order to discharge the legal enforceable debt of ₹ 1,00,000/- which had been taken by the petitioner from respondent No. 2/complainant. Moreover, even assuming for the sake of argument in case the same was a security cheque, then also, since the amount was due and payment/return of the said amount has not been proved by the petitioner, then the petitioner cannot escape liability on the ground that the cheque in question was a security cheque.
The present Criminal Revision is dismissed.
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2021 (11) TMI 938
Suit for mandatory injunction - execution of deed of settlement or gift - rejection of plaint on the ground that the plaint does not have any cause of action - HELD THAT:- The 1st respondent has filed the suit for a direction to the petitioner to convey the suit property to and in favour of children, the respondents 2 & 3 by executing deed of settlement or gift and direct the Sub Registrar, SRO, Tambaram, 4th respondent herein not to receive and register any document of conveyance or encumbrance or charge pertaining to the suit schedule property and for permanent injunction restraining the petitioner from encumbering or alienating the suit property.
From the materials on record, it is seen that it is the contention of the 1st respondent that suit property was purchased for the benefit of the children, the respondents 2 and 3. It is purchased in the name of the petitioner which is a benami transaction. This issue whether the suit property was purchased for the benefits of respondents 2 and 3 by the 1st respondent or the petitioner has purchased the suit property from her own funds can be decided only after conclusion of Trial by appreciating the oral and documentary evidence let in by the petitioner and 1st respondent. The 1st respondent has made averments in the plaint that the petitioner is trying to alienate the suit property to defeat the benefits of respondents 2 and 3 and also stated that the 1st respondent issued notice dated 29.09.2014 to the 4th respondent not to receive and register any document presented by the petitioner. These averments discloses cause of action.
It is well settled that while considering the application filed under Order VII Rule 11 C.P.C., the Court has to take into account only the averments in the plaint and documents filed along with the plaint. The averments in the written statement, affidavit filed in support of the application under Order VII Rule 11 or documents relied on by the defendants in the written statement cannot be taken into account at the stage of considering I.A. filed under Order VII Rule 11 C.P.C.
This Civil Revision Petition is dismissed.
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2021 (11) TMI 937
Dishonor of Cheque - insufficiency of funds - legal notice came to be issued and the notice was not claimed by the accused - rebuttal of presumption - admissibility of evidences - section 118 of NI Act - HELD THAT:- It is an undisputed fact that cheque belongs to the accused and it bears his signature. This fact is undisputed fact. Though there is an endorsement by the banker that there are material alterations in the cheque that is not substantiated as name was written in English and other figures are in Kannada language. There is no bar under law that cheque should be written in particular language and even if it is written in different languages it is admissible in evidence under Section 118 of NI Act.
Apart from that Ex. P15 is a material document which is the petition filed by the petitioner for insolvency and there in paragraph No. 5, the petitioner who is the revision petitioner herein has specifically admitted issuance of cheque to respondent No. 1 there in, who is the respondent herein being the complainant. Hence, issuance of cheque is undisputed. Now the only defence raised is cheque is issued towards legally enforceable debt to the tune of ₹ 50,000/-. But to substantiate this contention the revision petitioner has not entered in to witness box. He has not even bothered to reply to the legal notice issued to him and failed to claim it - Admittedly the Insolvency proceedings filed by the revision petitioner/accused is already dismissed and under these circumstances, he does not have any other remedy but to pay the cheque amount or to face the consequences.
Learned counsel for the revision petitioner contends that matter may be remanded to the trial Court to enable the revision petitioner to lead his defence evidence as per his defence. But when an opportunity was given to the revision petitioner before the trial Court, he did not availed that opportunity and even such defence was not raised before the appellate Court also. No other grounds are forthcoming to remand the matter.
Considering the facts that cheque has been admitted the presumption in favour of the complainant is required to be drawn which is mandatory under Section 139 of NI Act. The accused has failed to rebut the said presumption. Both the Courts below have appreciated the oral and documentary evidence in detail and hence, the judgment of conviction and order passed by both the Courts below cannot be said to be erroneous, arbitrary or illegal so as to call for any interference by this Court - Petition dismissed.
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2021 (11) TMI 936
Dishonor of Cheque - insufficiency of funds - respondent has submitted that the learned appellate judge was right in dismissing the complaint on the ground that the cheques were not issued by the accused as the complainant failed to establish the issuance of cheques and the features of Negotiable Instruments and he is not entitled for presumption therein - HELD THAT:- There appears to be contradictions in treating the application filed under Section 45 or 43 of the Indian Evidence Act. The trial court has observed in both the cases that application under Section 43 Indian Evidence Act were filed. However, it is stated that the said applications were filed by the accused. Thus, the learned trial judge mis-read the parties who has filed the application under Section 43 of Indian Evidence Act which was in connection with the proof of the signature. The said application came to be allowed by the learned trial judge in both the cases. But the accused has not taken any steps thereafter.
Though the application filed by complainant before the trial court was allowed in each case, he failed to prosecute further either in referring the name of the experts or in depositing the commissioner's fee. However, both the complaints came to be allowed in the circumstances and facts of the case by the trial court. However, the appellate court in the appeals finds that the application filed by complainant in both the cases was not followed by him and not complied with the ingredients of the said Section by naming expert or depositing the amount and allowed the appeal by reversing the judgment passed by the learned trial judge and by acquitting the accused. Thus, if the complainant has filed application and the learned trail judge or learned appellate judge ought to have allowed the matter to see the logical end.
Even before mentioning the error of the trial court, the appellate court also should have brought to the notice of the parties regarding the lapses. In this connection, both the learned trial court and appellate court have erred in adopting the hasty approach - matters are to be remanded to the trial court with a direction to the complainant to refer the name of the expert and also deposit the commissioner's fee and the required expenditure within 7 days from the first hearing date before the trial court.
Petition allowed by way of remand.
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2021 (11) TMI 935
Rejection of the petitioners claims for budgetary support under a “Scheme of Budgetary Support under Goods and Service Tax” regime - rejection on the ground that the claims were made for the period prior to the registration which is impermissible - HELD THAT:- Notification dated 05.10.2017 is a Scheme of Budgetary Support under Goods and Service Tax regime to the units located in the States of Jammu and Kashmir, Uttarakhand, Himachal Pradesh and North East including Sikkim. In pursuance of the decision of the Government of India to provide budgetary support to the existing eligible manufacturing units operating in the states under different industrial promotion schemes of the Government of India, for a residual period for which each of the units is eligible, a scheme was introduced as a measure of good will.
It was stated that the Department of Industrial Policy and Promotion (DIPP), the administrative department, had issued Notification dated 05.10.2017 which had come into operation with effect from 01.07.2017 and shall remain in operation for the residual period. Budgetary support under the scheme shall be worked out on quarterly basis and claims for the same shall also be filed on a quarterly basis. It was also specified that the eligible units was required to obtain one time registration and file an application for payment of budgetary support which shall be processed by the Deputy/Assistant Commissioner of the Central Taxes for sanction of the admissible amount. The sanction amount shall be credited into bank accounts of the beneficiaries through PFMS platform of the Central Government. Paragraph 6 thereof, which is pressed by the petitioner, states that the claim for the quarter ending September, 2017 has already become due. In order to mitigate the difficulties of the eligible units, it has been decided that units would be registered on the basis of application filed by them manually and application of claim for budgetary support for the said quarter would also be filed and processed manually.
From the circular dated 27.11.2017 it is clear that although the claim for the quarter ending September, 2017 had already become due “In order to mitigate the difficulties of the eligible units” it was decided that those eligible units would be registered on the basis of application filed by them manually and application for claim for budgetary support for the said quarter (i.e., quarter ending September, 2017) would also be filed and processed manually. Reading the Standard Operating Procedure even for the first quarter ending September, 2017 it is clear that registration under the GST is a necessary prerequisite for the scheme and the UID would be issued only after registration - an argument is sought to be made that if such an application is presumed to have been made even then the petitioner failed to follow up the application. Quite evidently, the manual application 12.12.2017, although permitted under the circular dated 27.11.2017, was not processed for registration by the respondents.
Quite evidently although the application for registration and issuance of UID made by the petitioner had been received by the respondent No. 3 on 12.12.2017, the authority neither registered the petitioner nor rejected the application compelling the petitioner to reapply for the same electronically pursuant to which registration and UID was granted on 31.10.2018. The fact that registration and UID was granted makes it evident that the petitioner was eligible for the budgetary support under the scheme. Quite clearly the Respondent No. 3 failed to process the application for registration as required. Since, the Respondent No. 3 failed to grant the registration to the petitioner, although it was an eligible unit, the petitioner could not have made their claims for budgetary support before being allotted the UID - As the respondents have rejected the claims of the petitioner on the technical ground, it is directed that the authorities shall process the four claims made by the petitioner for budgetary support and sanction reimbursements as found eligible within three months from the date of this judgment.
Petition allowed.
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2021 (11) TMI 934
Confiscation - penalty - neither the tax nor the penalty, as demanded, was deposited by the owner of the goods or the transporter - Section 107 of the U.P. Goods and Services Tax Act, 2017 - HELD THAT:- The facts and circumstances reflect that the show cause notice dated 23.12.2020 was misleading and incorrect. Where a show cause notice in Form GST MOV-10 is issued, which is a preclude to possibility of imposition of liability in the nature of civil consequences against a person, the same has to be specific, containing necessary and correct particulars that may enable the noticee to clearly understand the matter and appear or file his reply on the date and in the manner specified in the notice. Evidently, the show cause notice sent in the aforesaid Form GST MOV-10 dated 23.12.2020 does not comply with the aforesaid requirement as the date for appearance is stated as 28.11.2020. The quandary and dilemma that can visit a person served with such a show cause notice can only be imagined.
Had the show cause notice Form GST MOV-10 been properly prepared, the petitioner could have had adequate opportunity to represent his case and, subject to such proof as required by clause (v) of sub-section (1) of Section 130 of the Act, would not have been saddled with the liability under sub-sections (2) and (3) of Section 130 of the Act. Therefore, the show cause notice Form GST MOV-10 that was issued was defective which resulted in denial of opportunity to the petitioner, and as such, cannot be said to be a show cause notice in the eyes of law.
Thus, not only have the principles of natural justice not been complied with by the respondents, the petitioner has also been prejudiced by such non-compliance. There is no material on record to demonstrate that an opportunity of hearing was duly granted to the petitioner as is the mandate of sub-section (4) of Section 130 of the Act.
The order passed by the Additional Commissioner Grade II (Appeal)-I, State Tax, Agra as well as the order dated 29.11.2020 Form GST MOV-11 passed by the Assistant Commissioner (Mobile Squad) Unit-2, Commercial Tax, Agra cannot be sustained and are hereby quashed - Petition allowed.
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2021 (11) TMI 933
Supply or not - activity of the applicant i.e. collecting contributions and spending towards meeting and administrative expenditures only - contributions from the members in the Administration Account, recovered for expending the same for the weekly and other meetings and other petty administrative expenses incurred including the expenses for the location and light refreshments - doctrine of mutuality - HELD THAT:- In view of the amended Section 7 of the CGST Act, 2017, it is found that the applicant society and its members are distinct persons and the fees received by the applicant, from its members are nothing but consideration received for supply of goods/services as a separate entity. The principles of mutuality, which has been cited by the applicant to support its contention that GST is not leviable on the fees collected from its members, is not applicable in view of the amended Section 7 of the CGST Act, 2017 and therefore, the applicant has to pay GST on the said amounts received from its members.
The entire dispute raised by the applicant in respect of fees received from its members is settled by the above mentioned amendment made to Section 7 of the CGST Act, 2017 and therefore, fees received by the applicant from its members for expending the same for the weekly and other meetings and other petty administrative expenses incurred including the expenses for the location and light refreshments, amounts to 'supply' as defined under the GST Act.
In the instant case, the monthly contribution made by the members to the association is in return for receiving the services of the Applicant Club. The money collected by the Appellant from its members is used to procure services and goods from a third party and provide the benefits of such procured goods and services to the members of the association. Under GST, the term 'person' has been defined in Section 2(84) of the CGST Act, 2017, to include an 'individual' as well as an ‘association of persons or a body of individuals, whether incorporated or not. Therefore, the individual members who are members of the Applicant Club are beneficiaries and the contribution made by them is to be considered as consideration for the services received.
It is clear that the member and the club are two distinct persons and hence, any activities and transactions between them will be supply between separate/distinct persons. After the retrospective amendment as mentioned above, there remains no doubt that the activities involved in present case are nothing but 'supply', as defined under the Act.
The amendment to Section 7 (mentioned above) clearly treats the applicant and its member as two different persons where there is a supply of services from the applicant to its members and thus as per the applicant's own submission that two different persons have been envisaged in the law to tax a transaction as a supply made for a consideration, it is found that in the instant case there is a supply by the applicant to its members and consideration is received in the form of “fees”.
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2021 (11) TMI 932
Supply or not - amount collected as membership subscription and admission fees from members by the applicant club to meet out the expenses for the object for which it is incorporated - meeting expenses - communication expenses - Audit fees - Rotary International (RI) per capita dues - subscription fees to the Rotarian or Rotary regional magazine and the like - furtherance of business in this activity or not - supply of services to its Members under GST - principles of mutuality - HELD THAT:- In view of the amended Section 7 of the CGST Act, 2017, it is found that the applicant society and its members are distinct persons and the fees received by the applicant, from its members are nothing but consideration received for supply of goods/services as a separate entity. The principles of mutuality, which has been cited by the applicant to support its contention that it is not rendering any supply to its members and GST is not leviable on the fees collected from its members, is not applicable in view of the amended Section 7 of the CGST Act, 2017 and therefore, the applicant has to pay GST on the said amounts received from its members.
The meetings conducted by the applicant which includes food, refreshment, etc. are nothing but activities carried out by the applicant for its members and therefore we hold that, contributions from the members, recovered for expending the same for the weekly and other meetings and other petty administrative expenses incurred including the expenses for the location and light refreshments, amounts to or results in a supply, in the subject case - The impugned activities performed by the Applicant for the welfare activities of its members which includes meetings with food and refreshment, etc., is a service rendered by the Applicant to its members as per the definition of the term ‘services’.
In the instant case, the monthly contribution made by the members to the association is in return for receiving the services of the Applicant Club. The money collected by the Appellant from its members is used to procure services and goods from a third party and provide the benefits of such procured goods and services to the members of the association. Under GST, the term ‘person’ has been defined in Section 2(84) of the CGST Act, 2017, to include an Individual’ as well as an ‘association of persons or a body of individuals, whether incorporated or not. Therefore, the individual members who are members of the Applicant Club are beneficiaries and the contributions made by them is to be considered as consideration for the services received.
The applicant club and its members are distinct persons and the amounts/consideration received by the applicant from its members are nothing but consideration received for supply of goods/services as a separate entity. The principles of mutuality, which has been cited by the applicant to support its contention that GST is not leviable in its case, is not applicable in view of the amended Section 7 of the CGST Act, 2017 and therefore, the applicant has to pay GST on the said amounts received against membership subscription and admission fees from members.
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2021 (11) TMI 931
Capital gain - land in dispute to M/s ESS ESS Metals and Electricals on lease for 99 years in the year 1975, and subsequent to the death of Jeewan Lal Virmani, his children selling the same to the assessee under three sale deeds on different dates - sale consideration for transfer of respective shares in the property - Whether parties were closely related and there was no proper basis for settlement of sale consideration between them and it was done with a view to evade payment of tax? - HELD THAT:- CIT(A) and the ITAT have given concurrent findings on the above. It is also not denied that M/s ESS ESS Metals and Electricals held a lease for 99 years with respect to the land and the vendee has paid consideration of ₹ 17 Crores for cancellation of the said lease. In the present case, the vendor did not have an unencumbered right over the land and M/s ESS ESS Metals and Electricals admittedly had a perpetual leasehold right over the land, which right was also extinguished under the Sale Deed.
The bifurcation of the sale consideration was not challenged by the Assessing Officer. In fact, the Assessing Officer took ₹ 18 crores received by the respondent as the Sale Consideration. This was clearly erroneous as the Sale Consideration was ₹ 35 crores, however, was bifurcated between two right-holders over the land. The transaction being collusive was not the case of the Assessing Officer.
Keeping in view the concurrent findings of fact by the CIT(A) and the Tribunal, this Court is of the view that the said findings should not be lightly interfered with. In fact, the Supreme Court in the case of Ram Kumar Aggarwal & Anr. vs. Thawar Das (through LRs),[1999 (8) TMI 1008 - SUPREME COURT] has reiterated that under Section 100 of the Code of Civil Procedure, 1908, the jurisdiction of the High Court to interfere with the orders of the Courts below is confined to hearing on substantial question of law and interference with finding of the fact is not warranted if it involves re-appreciation of evidence.
Supreme Court in State of Haryana & Ors. vs. Khalsa Motor Limited & Ors.,. [1990 (8) TMI 416 - SUPREME COURT] has held that the High Court was not justified in law in reversing, in second appeal, the concurrent finding of the fact recorded by both the Courts below. The Supreme Court in Hero Vinoth (Minor) vs. Seshamma [2006 (5) TMI 478 - SUPREME COURT] has also held that “in a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible.” It has also held that there is a difference between question of law and a ‘substantial question of law’.
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2021 (11) TMI 930
Sale of the chemical unit of the assessee company - itemised sale OR slump sale - addition under section 50B read with section 2(42C) and explanation 1 to section 2(19AA) - HELD THAT:- Tribunal found from the memorandum as well as the addendum that the individual assets were determined and fixed at a pre-determined and agreed value and such price has been received by the assessee by different account payee cheques during the previous year relevant to the assessment year 2009-10 - on perusal of the balance-sheet, the Tribunal found that on the date of transfer apart from the assets which were sold and transferred, the said chemical unit had several other assets which were never sold nor transferred to the purchaser - Tribunal took note of the crucial fact that none of the liabilities were transferred to the purchaser and the same continued to be a liability of the assessee and to be discharged and were discharged by the assessee.
Tribunal in our view, rightly held that the sale cannot be regarded as a slump sale. The Tribunal took note of the decision of this Court in the case of Kwality Ice Cream (India) Ltd. [2011 (1) TMI 905 - CALCUTTA HIGH COURT] in which it was held that though the sale of the undertaking was for a lump sum consideration, Section 50 of the Act in respect of depreciable assets will override all other provisions and for depreciable assets, the value has to be determined in accordance with the principles of block of assets, read with Section 43(6) of the Act. There are other decisions which were also noticed and referred to by the Tribunal. Thus, we find that the Tribunal has not committed any error of fact calling for an interference by this Court. - Decided against revenue.
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2021 (11) TMI 929
Recovery proceedings - Stay of demand - Properties including the stock-in-trade have been attached - petitioner submits that as his properties including the stock-in-trade have been attached, his business activities have been completely jeopardized, for which reason he is unable to generate any revenue for payment of the tax dues - HELD THAT:- In the light of the contentions made and taking an over all view of the matter, we feel that it would meet the ends of justice, if the attachment of the stock-in-trade of the petitioner is withdrawn to enable him to meet the tax dues in terms of the first proviso to Section 254 (2A) of the Act. In view of the statement made by the revenue itself that not much money could be appropriated through attachment of bank accounts, attachment of the bank accounts may be withdrawn.
Order:- Tribunal is directed to expeditiously hear the three appeals of the Revenue and corresponding Cross Objections of the petitioner, preferably within a period of six months from today.Petitioner shall deposit 20% of the tax dues following the order passed by the first appellate authority on 31.03.2018.On such deposit, attachment of the petitioner’s bank accounts as well as the stock-in-trade shall stand withdrawn forthwith
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2021 (11) TMI 928
Assessment u/s 153A - replacement of Chapter XIV-B provisions and introduced Sections 153A, 153B and 153C in the Act by Finance Act, 2003 - Whether search u/s 132 of the Act is sine qua non for initiation of proceedings under Section 153A of the Act but it is not dependent on any undisclosed income being unearthed during search? - HELD THAT:- Section 153C provides that where an Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account documents seized or requisitioned belong or belongs to a person other than the person referred to in Section 153A, then the books of account, or documents or assets seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against such other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of Section 153A.
Assessing Officer while passing the order under Section 153A read with Section 143[3] of the Act, ordinarily cannot disturb the assessment/reassessment order which has attained finality, unless the materials gathered in the course of the proceedings establishes that the finalized assessments are contrary to the material unearthed during the course of 153A proceedings, as held by the Co-ordinate Bench of this Court in the case of IBC Knowledge Park (P) Ltd., supra. A concluded assessment could not be disturbed without there being any basis for doing so which is impermissible in law.
Even in case of a searched person, the same reason would hold good. As observed in Canara Housing Development Company supra, the Assessing Officer is empowered to assess or reassess the total income of six assessment years i.e., the income which was returned in the earlier return, the income which was unearthed during search and also any income which was not disclosed in the earlier return or which was not unearthed during the search by separate assessment orders but in our considered view the completed assessments should be subject to the safeguards provided in IBC Knowledge Park (P) Ltd. [2016 (5) TMI 372 - KARNATAKA HIGH COURT]
As regards the pending assessments are concerned only one assessment shall be made separately for each assessment year on the basis of the income unearthed during search and any other material existing or brought on the record of the Assessing Officer. Even in the absence of any incriminating material abated assessment or reassessment could be done. The returns filed under Section 139 of the Act gets replaced by the returns filed under Section 153A[1] of the Act. Pending proceedings in appeal, revision/application shall not abate subsequent to initiation of Section 153A proceedings. Further, recording of satisfaction under Section 153A may not be necessary unlike Section 153C of the Act which mandates recording of satisfaction.- Decided in favour of assessee.
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2021 (11) TMI 927
Delayed Employees’ contribution to the employees’ provident fund and the employees’ state insurance fund - Delay deposit (by the assessee-employer) as beyond the due dates - returned income having been made by the AO u/ss. 143(1) and 154 - HELD THAT:- Sec. 43B(b) does not include the employee contribution, and even regarding so is to no avail, rendering the Explanations under reference, even as suggested by their express language, explanatory. An examination of the Notes on Clauses to, and the Memorandum explaining the Provisions of, Finance Bill, 2021, however, resolves the matter beyond the pale of any doubt. While confirming the Explanations under reference to be explanatory of the law, even as signified by the clear, unambiguous language employed therein, are yet stated to be prospective inasmuch as they are applicable assessment year 2021-22 onwards.
Lastly, no decision by Hon'ble jurisdictional High Court in the matter has been either cited before me, or found, which, where so, would, irrespective of the view expressed therein, hold for the relevant years, being prior to the year of applicability of the Explanations under reference. No adjustment, in view of the conflicting judicial opinion could, accordingly, be made to the returned income u/s. 143(1)/154, which sections admit only issues on which there could be conceivably no two views, rampant, irrespective of merits thereof, in the instant case, which aspect, as explained therein, has been given cognizance to in making the provision applicable not retrospectively. The assessee, accordingly, succeeds in his challenge to the impugned adjustments, which are held as bad in law and directed for deletion. This is of course subject to any different view taken by the Hon’ble jurisdictional High Court for any year prior to AY 2021-22. Assessee appeal allowed.
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2021 (11) TMI 926
Contribution of employees’ share towards ESI, PF, Superannuation Fund or any other fund set up for the welfare of the employee u/s 36(1)(va) read with Section 2(24)(x) when the payments were made within the due dates of filing of return u/s 139 - whether the amendment brought in by Finance Act, 2021, is retrospective or prospective in operation? - HELD THAT:- When we adjudicate whether the view of Ld CIT(A) that the explanation 2 brought in by Finance Act, 2021 is retrospective, let us look at the “Notes on Clauses and the relevant clauses 8 & 9 of the Finance Bill, 2021 (supra) pertaining to the issue in hand which in clear and unambiguous terms spells out the intention of Parliament that the amendment shall take effect from 1st April, 2021 and therefore will accordingly apply to Assessment Year 2021-22 and subsequent years. So since the legislative intent is clear, the amendment brought in by Finance Act, 2021 on this issue as discussed is prospective and Ld. CIT(A) erred in holding otherwise. So till AY 2021-22, the Jurisdictional High Court’s view in favor of assessee will hold good and is binding on us.
As relying on the ratio of the Hon’ble Supreme Court in the case of Vatika Township Pvt. Ltd. [2014 (9) TMI 576 - SUPREME COURT] and M/s Snowtex Investment Ltd. [2019 (5) TMI 1165 - SUPREME COURT] and also taking note of the binding decision of the Hon’ble Jurisdictional Calcutta High Court on this issue before us in Shri Vijayshree Ltd. Ltd.[2011 (9) TMI 30 - CALCUTTA HIGH COURT] M/s Coal India Ltd [2015 (8) TMI 1451 - CALCUTTA HIGH COURT], M/s Akzo Nobel India Ltd. [2016 (6) TMI 1128 - CALCUTTA HIGH COURT], we set aside the impugned order of Ld CIT(A) and direct the AO to allow the claim of deduction in respect of employees contribution shares towards ESI, PF, by the assessee before the due date of filing of return u/s 139(1) of the Act. Therefore the appeal of assessee succeeds and so, it is allowed in favor of assessee.
Disallowance u/s 14A - HELD THAT:- Since there is no dispute that assessee did not earn any exempt income, we are of the view that no disallowance u/s 14A of the Act was warranted. For taking such a view, we rely on the decision of the Hon’ble Delhi High Court in Chem Investments [2015 (9) TMI 238 - DELHI HIGH COURT] - Therefore we direct the deletion of the addition /disallowance made by the AO in this regard.
Disallowing expenditure incurred on educational sponsorship of assessee company’s Director’s son - HELD THAT:- Since in the present case there is a nexus with expenses incurred for the higher education of Shri Jay Goel with the business of the assessee company and the recipient of sponsorship has later joined the services of assessee company and is discharging the duties as CEO of the assessee company, the expenditure incurred should be allowed since it has nexus with the business of the assessee. This ground of the assessee stands allowed.
Accrual of income - retention money retained by the debtors during the relevant previous year - taken into account while computing the profits and gains of the assessee’s business for the assessment year under consideration - HELD THAT:- Since we note that the retention money kept with the Electricity Board which would be released latter only once the assessee fulfills all the obligations under the contract then only the assessee would acquire the right to receive such retention money so this is contingent in nature, so the amount in question cannot be held to have been accured to the assessee and since on facts the assessee has not received the same, even by applying the concept of real income theory, the money retained by the Electricity Board cannot be brought to tax. Thus, we note that in this year under consideration, since no enforceable liability has accrued or arisen, so, it cannot be said that the assessee had any vested right to receive the retention money in question.
Assessee had no right to claim any part of the retention money till the verification of the satisfactory execution of the contract is over. Therefore, in this assessment year the retention money retained by the electricity Board cannot be treated as income of the assessee and even though the assessee due to mistake of fact has offered the same as income this year in its Return of Income, deduction of the same should be given and since the decision of the Hon’ble Supreme Court in M/s Goetz India Goetz India [2006 (3) TMI 75 - SUPREME COURT] does not come in the way of the Tribunal as held by the Hon’ble Supreme Court as noted (supra), so we set aside the impugned order of Ld CIT(A) and direct the AO to give relief to the assessee on this issue. However, it is clarified that when the assessee receives or when this amount accrues to the assessee, then it should be taxed in that assessment year and not in this assessment year - Decided in favour of assessee.
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2021 (11) TMI 925
Disallowance u/s 40(a)(ia) - Non deduction of TDS on the guarantee commission paid to Government of Karnataka - HELD THAT:-Guarantee commission is not paid directly to the State Government and they are not levies imposed exclusively on the Assessee. The State Government issues Guarantees on behalf of the Government Departments, Public Sector Undertakings, Local Authorities, statutory Boards and Corporations and Co-operative Institutions. Consequently and hold that the disallowance made u/s.40(a)(iib) of the Act cannot be sustained.
Disallowance of guarantee commission under section 40(a)(iib) of the Act is not sustainable and the addition made in this regard is directed to be deleted. - Decided in favour of assessee.
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2021 (11) TMI 924
Revision u/s 263 by CIT - Low income in comparison to very high investments, Large increase in investment in unlisted equities during the year and income in comparison to high loans/ advances/investment in shares - HELD THAT:- The error should be one that is not debatable or a plausible view. Section 263 of the Act invests a power of revision in a superior officer and therefore, by the very nature of the power, does not allow for supplanting or substituting the view of the AO. The appreciation of material placed before the AO is, exclusively within his domain which cannot be interdicted by a superior officer while exercising powers u/s 263 only on the ground that if he had appraised the said material, he would have come to a different conclusion. [See Parashuram Pottery Works Co. Ltd. [1976 (11) TMI 1 - SUPREME COURT].
Since in the instant case the A.O. had indeed made enquiries as per the reasons for which the case was selected for limited scrutiny and the case was not converted to full scrutiny, therefore, respectfully following the decision in the case of PCIT vs., M/s. Brahma Centre Development Pvt. Ltd. [2021 (7) TMI 347 - DELHI HIGH COURT] we hold that the Ld. PCIT was not justified in assuming the jurisdiction under section 263 of the I.T. Act, 1961. We, therefore, set aside the Order of the Ld. PCIT and allow the grounds raised by the assessee on this issue.
So far as various decisions relied on by the Ld. D.R. are concerned, we are of the considered opinion that these are distinguishable and not applicable to the facts of the present case especially when the case of the assessee which was selected for limited scrutiny was never converted to full scrutiny and the assessee had submitted all the details as called for by the A.O. from time to time for the reasons for which the case was selected for limited scrutiny. The grounds raised by the assessee are accordingly allowed.
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