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Showing 101 to 120 of 1396 Records
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2021 (4) TMI 1296
Stay of recovery - absolute stay - assessee-in-default u/s 220(3) - HELD THAT:- Firstly, the CBDT instructions No.95 dated 21.08.1969 on which reliance is placed to contend that absolute stay should be granted, is no more in force and stands superseded by instruction no. 1914 dated 28.07.2020. Secondly, by the CBDT instruction No.1914 dated 28.07.2020, the authorities under the Act are conferred power to grant stay pending appeal before the appellate forum under the Act; and it is stated therein that the authority in order to protect the interests of revenue can grant stay by directing payment of 20% of the demand. Authority can direct payment of even lesser amount.
As contended before us that even a direction to pay the 1% of the demand raised by the assessing officer would cause undue hardship and irreparable loss to the petitioner, and that the authorities have not been able to recover any part of the demand raised on the petitioner, because of it’s financial stringency, the said submission does not appeal to this Court, as mere failure of the authorities to recover any amount cannot be considered as financial stringency of the petitioner.
The 1st respondent, having regard to the facts of the case and the material placed on record, granted conditional stay, which the petitioner failed to comply with at the first instance; and even thereafter the 1st respondent, by considering the request of the petitioner, granted further time for making the conditional payment to commence from 10th February, 2021. Thus, the petitioner failed to comply either order dt. 01.03.2020 or order dt. 03.02.2021.
1st respondent, having considered the request of the petitioner, granted time to make conditional payment in installments commencing from 10.02.2021, beyond the period indicated by the petitioner. Even this the petitioner failed to comply with and only as an after thought filed the present Writ Petition on 15.02.2021, after having committed default in payment of the revised 1st installment due on 10.02.2021.
Since, the 1st respondent has passed the impugned order dated 03.02.2021 by taking all the facts into consideration, including the request of the petitioner as noted above by way of reconsideration of its earlier order of March, 2020, and the said order passed by the 1st respondent is in exercise of discretionary powers, this court is of the view that no valid ground has been made out for interference with it. Writ Petition is dismissed at admission stage.
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2021 (4) TMI 1295
Seeking grant of Regular Bail - petitioners found to have possession 110 bottles of Phensydle containing Codeine Phosphate - offences under Section 21(C) & 23(C) of the NDPS Act - HELD THAT:- Issue notice.
List on 28.04.2021.
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2021 (4) TMI 1294
Classification of imported goods - tunnel boring machine and its components - eligibility of the said goods for exemption from Customs duty - time limit of 3 months for pronouncing the advance ruling as provided under sub-section (6) of Section 28-I of the Act had already expired on 4-1-2021, the day the CAAR, Mumbai came into existence - HELD THAT:- The request for advance ruling was filed in the secretariat of the erstwhile AAR, New Delhi on 14-10-2019. No pronouncements were made on the said application within three months as required under the provisions of sub-section (6) to Section 28-I of the Act for the reason for non-constitution of the requisite Bench. It is found difficult to agree with the assertion of the applicant that the limitation prescribed under law is a mere procedural requirement. I am mindful of the fact that the limitation of three months for pronouncing an advance ruling is prescribed in the Act itself and not in any delegated piece of legislation. If the line of argument advanced by the applicant is to be accepted, it would lead to the conclusion that the limitation provided under Section 28(8) of the Act for adjudication of a show cause notice is merely procedural. In that event, the legal stipulation that if the show cause notice is not adjudicated within the time allowed, the result would that no notice has actually been issued, would become redundant. It is a settled proposition of law that any interpretation of law which leads to a manifest absurdity has to be eschewed.
It is clear from a plain reading of Section 2(2) of the Act that assessment includes provisional assessment and since the questions involved in the present proceedings are already pending in the applicant’s case before an officer of Customs, the proviso (a) to sub-section (2) of Section 28-I of the Act does not allow me to pronounce any advance ruling as requested. It is settled law that assessment is a quasi-judicial proceeding requiring application of mind and speaking decisions. I am, therefore, not convinced with the argument that no independent proceeding is pending before any officer of Customs, as argued by the applicant.
Also, one of the questions raised in the application, i.e., eligibility for nil rate of duty under Entry No. 446 of the Notification No. 50/2017-Cus., dated 30-6-2017 has lost relevance in view of the amending Notification No. 2/2021, dated 1-2-2021.
Application dismissed.
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2021 (4) TMI 1293
Offence under COFEPOSA ACT - detention order - respondents desired to unlock the mobile phone instrument of the petitioner to retrieve the materials/ documents therefrom but petitioner did not co-operate in the opening/ unlocking of his mobile phone instrument - HC held preventive detention of the petitioner in the assessment of the Detaining Authority, the Respondents had to collect evidence against the present petitioner, including recovering the relevant data from his mobile phone instrument, which took considerable time for reasons attributable primarily to the petitioner himself. No merit in the assertions of the petitioner - HELD THAT:- We are not inclined to entertain the Special Leave Petition under Article 136 of the Constitution of India.
Special Leave Petition is accordingly dismissed.
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2021 (4) TMI 1292
Classification of goods - HSN code - flavoured milk - whether it is to be considered under either 0402 or 2202 90 30? - Notification No.1/2017 Central Tax (Rate) dt: 28.6.2017 - whether ‘flavoured milk’ can be considered a beverage containing milk? - HELD THAT:- A beverage is "(chiefly in commercial use) a drink other than water. It is a liquid for drinking especially such liquid other than water (as tea, milk, fruit juice, beer) usually prepared (as by flavouring, heating, admixing) before being consumed". The instant product, the flavoured milk is undoubtedly a beverage containing milk. It is moreover, a ‘preparation’ which was proved, substantiating the present argument.
Even though the product in question is a dairy produce and also an edible product of animal origin, the qualifier that it is “not elsewhere specified or included” makes it ineligible to be classified under the chapter 4. The product in dispute as it is already specified and included under chapter 22 dealing with goods /items of “Beverages, spirits and vinegar” makes it ineligible to be classified under chapter 4 - the commodity ‘flavoured milk’ merits classification under beverage containing milk under tariff heading 2202 90 30. The rate of tax applicable for the said tariff item is 12% GST (6% CGST + 6% SGST) under entry no. 50 of Schedule II of Notification No.1/2017 – Central (Rate) dated 28.06.2017 as amended.
The Ruling of the AAR is in tune with legal position and it needs no interference and the appeal is accordingly dismissed.
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2021 (4) TMI 1291
Seeking condontation of delay of 75 days in filing the appeal - even though the claim has been made that initially the Consultant did not file the appeal, which resulted into delay, however, the same has not been substantiated by producing sufficient evidence from the second Consultant - HELD THAT:- Even though the applicant has attempted to make a case that it is the negligence of the first Consultant resulting into delay, however, the said plea has not been supported by any evidence by way of providing the name of the second Consultant nor the dates when it was initially given to the first Consultant and also when the draft copy of the appeal was given by the second Consultant for filing the appeal. Since the grounds explaining the inordinate delay is vague, hence, it does not warrant condonation.
The miscellaneous application seeking condonation of delay is dismissed.
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2021 (4) TMI 1290
TP Adjustment - comparability selection - HELD THAT:- We are informed during the course of hearing that this tribunal's coordinate bench order in assessee’s case [2021 (1) TMI 25 - ITAT HYDERABAD] has directed the departmental authorities to exclude the very five comparables M/s Tata Elxsi Limited, M/s Infobeans Technologies Ltd., Persistent Systems Ltd, Infosys Ltd., M/s Cybage Software Private Ltd.for the purpose of determining the ALP in the corresponding segment of development of software and ITES.
Working capital adjustment - As relying on GXS INDIA TECHNOLOGY CENTRE PVT. LTD [2021 (1) TMI 775 - ITAT BANGALORE] assessee’s failure in placing on record the relevant working capital particulars only led to the impugned disallowance than on merits. We thus accept this 7th substantive ground for statistical purposes and direct the TPO to consider assessee’s working capital adjustment as per law.
ALP adjustment in the nature of interest on receivables due to its overseas Associated Enterprises ‘AEs’ - HELD THAT:- It transpires that the learned lower authorities had adopted SBI short term fixed deposit rate on assessee’s international transactions without doing any benchmarking as per market rates in the very segment by referring to comparable entities. We accept this instant substantive ground on this count alone and direct the TPO to delete the impugned adjustment.
Deemed international transaction - ALP adjustment in respect of recoveries made from resident associated enterprise M/s CDK Global India Private Limited - HELD THAT:- This last issue of deemed international transaction deserves a fresh innings before the TPO. We accordingly deem it appropriate to restore the same back to the file of TPO for his adjudication as per law within three effective opportunities of hearing. The assessee or its authorized representative shall appear before the TPO on or before 31.08.2021 with all necessary papers/ verification of records at its own risk and responsibility in the specified number of opportunities, failing which our remand directions shall stand vacated.
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2021 (4) TMI 1289
Refund of accumulated Cenvat Credit in cash - ineligible input services - clearing and forwarding agent services - period October, 2008 and December, 2008 - HELD THAT:- The precedents on the subject held that credit of service tax paid on clearing and forwarding agent services are admissible.
The Cenvat credit availed on clearing and forwarding agent’s service is admissible to the Appellant and consequently the refund of accumulated credit Cenvat credit on this service on export of the finished goods is also admissible to the Appellant - Appeal allowed - decided in favor of appellant.
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2021 (4) TMI 1288
Liquidation of Corporate Debtor - non-compliance with the order dated 16.03.2021, the direction that the CoC shall deliberate and take a decision on the resolution plan, on or before 25.03.2021 - whether there has been any violation of the order dated 16.03.2021 and if so, whether it is sufficient to order liquidation of the corporate debtor? - HELD THAT:- The argument that in view of the extension and exclusion granted by this Adjudicating Authority, there was plenty of time left for concluding the CIRP and therefore, the CoC was justified in taking time in violation of the order dated 16.03.2021, cannot be countenanced at all.
While it is true that following the order of exclusion of 52 days vide order dated 16.03.2021 in IA 259/KB/2021, the CIRP was to expire only on 07.05.2021, it does not follow as a natural corollary that time up to 07.05.2021 is available with the CoC to take final call on the resolution plan. The entire CIRP was to be completed on or before 07.05.2021, which is to say, either the resolution plan was to be finally approved after a resolution in its favour was passed by the CoC, or the corporate debtor would have to be sent into liquidation. This was the underlying intention of the order dated 16.03.2021, which specifically provided for a decision to be taken on or before 25.03.2021.
The defence that the CoC took the decision that it did on the ground of maximisation of the corporate debtor cannot be accepted because the IBC envisages maximisation of value but within a definite timeframe. Emphasising one aspect at the expense of the other will derail the whole process of resolution. Therefore, the RP and the CoC were certainly not correct in not adhering to the timelines given in the order dated 16.03.2021 without approaching or even once mentioning the matter before the Court for enlargement of time.
Given the circumstances and the fact that voting has already been taken place in resolution plan, we do not at this stage pass any orders with respect to liquidation of the corporate debtor. However, the conclusion is inescapable that we have been presented with a fait accompli both by the RP and by the CoC in the guise of maximisation of value of the corporate debtor - Application disposed off.
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2021 (4) TMI 1287
Dishonor of cheque - insufficiency of funds - issuance of cheque, admitted or not - rebuttal of statutory presumption - Sections 118 and 139 of the Negotiable Instruments Act - HELD THAT:- It is very much clear that the accused had admitted the issuance of Ex.P.3 cheque, but according to him, the cheque was issued to the complainant's son-in-law siddque. Whatever it is, as rightly observed by the trial Court as well as the Appellate Court, the accused has admitted that the cheque in dispute Ex.P.3 was belonging to him and that he had not disputed the signatures found in Ex.P.3 cheque. Consequently, both the Courts below have rightly drawn the presumption under Section 139 and 118 of Negotiable Instruments Act in favour of the complainant.
It is settled law that the accused in order to rebut the presumption drawn in favour of the complainant under Sections 118 and 139 of Negotiable Instruments Act, is not required to adduce any evidence and he can prove his probable defence through the evidence adduced by the complainant and that the standard of proof required is of preponderance of probability - In the present case, as already pointed out, the accused has disputed the alleged loan transaction existed between him and the defacto complainant, but admitted the issuance of the cheque to the complainant's son-in-law. As rightly contended by the complainant's side, the accused, at no point of time, disputed the signature found in Ex.P.3 cheque.
No doubt, the accused has taken another stand that the complainant was not having sufficient means or capacity to advance the loan, but the same was dealt with by the trial Court as well as the appellate Court. As already pointed out, the accused has taken a stand that Ex.P.3 cheque was issued only to the complainant's son-in-law Sidque and he has not produced any evidence to substantiate the same. Though P.W.1 and P.W.2 were subjected to cross examination, nothing was elicited by the defence in their favour - the defence has neither produced any materials nor shown any facts and circumstances to infer that the defence put forth by the accused is probable.
This Court has no hesitation to hold that the accused has not rebutted the statutory presumption under Section 139 of Negotiable Instruments Act. Hence, this Court decides that the finding of the trial Court as well as the Appellate Court, that the accused is guilty of the offence under Section 138 of Negotiable Instruments Act, cannot be found fault with and this Court is in entire agreement with the concurrent judgments of conviction passed by the Courts below - Criminal Revision Case is dismissed.
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2021 (4) TMI 1286
EOU - refund of Input Tax Credit - inward supply utilized for Export of Services without payment of Tax - Section 54 of CGST Act, 2017 - HELD THAT:- In the instant case though the message was conveyed to the appellant through GST portal regarding issuance of SCN (RFD-08) and rejection of his refund claim, but the appellant could not view/download the copy of show cause notice (RFD-08) as well as Order-in-Original (RFD-06) through GST portal hence, he could not reply to show cause notice as well as could not attend the personal hearing on the scheduled date and time.
There is no doubt that the appellant had not got the opportunity to be heard as well as to defend his case. Therefore in the instant case, it is found that principle of natural justice has not been followed properly. Further, ongoing through the column No. 3 of Order-in-Original dated 10-12-2020 (RFD-06) it is found that the whole amount of refund claim mentioned as inadmissible but in the order portion neither the rejection amount has been mentioned nor any provisions/acts/rules has been mentioned by which refund has been rejected.
Order-in-Original is non-speaking, non-reasoned order and proper opportunity to be heard has also not been given as per Rule 92(3) of CGST Rules, 2017 to the appellant. Therefore, it is not possible at the appellate level to decide the case on merits - matter remanded back to the adjudicating authority to provide the proper opportunity of being heard to the appellant and decide the case afresh with proper reason and details speaking order by following the principle of natural justice.
Appeal allowed by way of remand.
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2021 (4) TMI 1285
CENVAT Credit - laying of pipeline of inward transmission of CNG, service availed for inspection at a new sites - credit on input service mistakenly taken at Zone I that pertains to Zone II - services for medical check-up in health camp arranged for auto and taxi drivers using CNG under CSR Scheme - HELD THAT:- The issue of laying of pipeline for inward transmission of CNG has been settled by this Tribunal in the appellant’s own case pertaining to a different period vide decision dated 14-4-2019 of CESTAT Mumbai. The findings is concurred with and in carrying forward the judicial precedent, the appellant’s claim for availment of credit on service tax paid for laying of pipelines used for inward transmission of inputs-natural gas is, therefore, accepted and the benefit of availment of such credit is hereby extended to the appellant.
Credit of input services taken on Zone I and II - HELD THAT:- It is observed that appellant had registered itself under Centralised Registration Scheme and these zones were subsequently demarcated as C.B.E. & C. Circular No. 875/13/2008-CX., dated 16-10-2008 clearly stipulates that separate registration is required under each jurisdiction of the Chief Commissioner. This being the factual and legal position, appellant won’t have been allowed such credit had it not transferred its credit in the book of accounts from one zone to another. Since it had done the changes that is required for availing credit in the other zone, it should not have been denied the credits for narrow technical consideration as it is in no way stand as a stumbling block in extending such benefit. Hence the credit on input services pertaining to Zone II is allowed to the appellant who had already made necessary changes of transfer of such credits between the zones.
The dispute concerning inspection at new site and denial of Cenvat credit on input services availed for such inspection needs discussion on two counts. Firstly, appellant contended that it is statutory/mandatory requirement for them to have inspection of the geographical area of the city/locality where compressed natural gas distribution is to be effected - The second reason on which denial is justified by the Learned DR is that the definition of Cenvat credit available in Rule 2(l) of Cenvat Credit Rules, 2004 clearly excludes the word “setting up” with effect from 1-4-2014 and therefore no interference in the order passed by the Commissioner (Appeals) is required on this issue since such feasibility report was a part of setting up of gas distribution network.
The only other denial of credit left is concerning services of free medical check-up of the drivers etc. on which appellant claimed Cenvat credit on the ground of meeting corporate social responsibility but there is nothing available on record to show that such services are freely extended to all CNG Drivers irrespective of the fact that they were consuming CNG from the appellant services station or elsewhere - the finding of the Learned Commissioner (Appeals) is concurred with, that the appellant is not entitled to get benefits of Cenvat credit on services availed for providing free medical check-up.
The order of Commissioner (Appeals) is modified to the extent of allowing Cenvat credit on these three components namely tax paid for laying of pipeline of inward transmission of CNG, service availed for inspection at a new sites, credit on input service mistakenly taken at Zone I that pertains to Zone II - Appeal allowed in part.
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2021 (4) TMI 1284
Maintainability of appeal - low tax effect - HELD THAT:- This Tribunal has dismissed the Revenue’s appeal on account of low tax effect; however the Revenue was given liberty to get the appeal reviewed if the tax effect discovered later on, is more than the monetary limit prescribed by the CBDT. The Ld. DR has furnished before us, computation of the tax effect which comes to ₹ 75,00,000/- which is more than the tax limit of ₹ 50 lacs prescribed by CBDT Circular No.17 of 2019 dated 08.08.2019, therefore, we recall the order of the Tribunal dated 23.08.2019. The Registry is directed to fix the appeal for hearing on 27.05.2021. Since, the date of hearing has been announced in the open court, therefore no separate notice of hearing would be sent to the parties.
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2021 (4) TMI 1283
TP Adjustment - Selection of MAM - applying TNMM as selected MAM - HELD THAT:- In the present case, for the impugned assessment year, we are not in agreement with selection of different method (CUP) by the TPO for bench marking one element of service, when entire services received by the assessee from its AE are tested at TNMM. In principle, we agree with the arguments of assessee that segregation of one element of services out of bunches of services received by the assessee from its AE and applying different method for bench marking transaction is not correct, most particularly when TPO has accepted transactions of the assessee with its AE are at ALP under TNMM.
Fact remains that from the orders of the lower authorities, it was noticed that the TPO wanted the assessee to show that services were actually rendered by its AE to the assessee. Unless, the assessee substantiates its claim with necessary evidence including Invoices, if any, raised by the AE for rendering of services, then the claim of the assessee cannot be accepted. Therefore, we are of the considered view that the issue needs to be set aside to the file of the AO for limited purpose verification of facts with regard to rendering of services by the AE to the assessee in connection with payment of management fees. In case, the assessee produced particulars of actual receipt of services, then the TPO is directed to accept the TP study conducted by the assessee by applying TNMM as the most appropriate method and delete TP adjustment made towards management fees - Appeal filed by the assessee is allowed for statistical purposes.
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2021 (4) TMI 1282
Validity of pre-revision notices issued by the respondent - it is alleged that Assessing Officer failed to take note of the specific direction issued by the Commissioner of Commercial Taxes in Circular dated 04.11.2013, as to how the operation of Section 19(20) of the Act should be adopted - vires of Section 19(20) of TNVAT Act - HELD THAT:- The substantial portion of the contention advanced by the appellants were accepted and found favour with the learned Writ Court. However, ultimately, the learned Writ Court sustained the objection raised by the learned Additional Government Pleader and directed the assessee to submit their objections, after the Assessing Officer issued a supplemental show cause notice. The correctness of this direction is called in question.
In the instant case, the pre-revision notices were triggered on account of the inspection conducted by the Enforcement Wing. As pointed out by the learned Writ Court, this can be at best cause of action to reopen the assessment by invoking power under Section 27 of the Act, but while issuing pre-revision notices, assessee cannot straightaway make a proposal for ad-hoc reversal of the input tax credit, when the appellant assessee would state that they have got sufficient records to prove that no such reversal can be done, much less ad-hoc reversal on input tax credit. Therefore, the appropriate procedure that should have been followed by the respondent Assessing Officer, on receipt of the proposal by the enforcement wing, is to issue a notice to the assessee to produce all records to examine as to whether there has been any huge accumulation of input tax credit on account of lesser sale price than purchase price. This required to be mandatorily done by the Assessing Officer in the light of the Circular dated 04.11.2013.
The circular instructions cannot bind the assessee, but it binds the Assessing Officer, who is the subordinate authority in the hierarchy of authority in the Commercial Tax Department. Therefore, the pre-revision notices straightaway proposing the ad-hoc reversal is not sustainable in law.
The pre-revision notices are set aside and these matters are remanded to the respondent. The respondent is directed to issue a show cause notice to the appellant directing them to produce all their books of accounts and other records to examine them in the light of the direction issued in the Circular, dated 04.11.2013 and ascertain as to whether there is any accumulation of input tax credit on account of lesser sale price than the purchase price - Appeal allowed by way of remand.
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2021 (4) TMI 1281
Execution of the works and rendering of services - contract for Civil and Structural work for the Balance of Plant (BoP Works) - whether prima facie an arbitration agreement exists between Indiabulls and Shapoorji in respect of the BTG Contract for execution of BTG Works and BoP Contract for execution of the BoP Works? - HELD THAT:- In the present case, it is evident that Indiabulls had fully participated in the formation of the BTG Contract. It is material to note that the thermal power plant in question was being developed by Indiabulls as its undertaking. Undisputedly, Indiabulls is a beneficiary of the works being executed by Shapoorji. Whether a non-signatory is a direct beneficiary of the contract containing the arbitration clause is material in determining whether the said beneficiary can be compelled to arbitrate even though it is not a signatory to the Agreement. However, this is coupled with the condition that such benefit should be direct and not indirect - In the present case, Indiabulls (and not Elena) had invited offers for BTG Works. Shapoorji had submitted its bid (revised offer) directly to Indiabulls pursuant to the invitation issued by Indiabulls. The said bid was accepted and such acceptance constituted a binding contract. Concededly, on Shapoorji's bid (revised offer) being accepted, it was no longer open for Shapoorji to resile from its commitments. In this view, there is ample evidence to show that Indiabulls had directly participated in the negotiations and formation of the contract for execution of the BTG Works even though it was not a signatory to the BTG Contract that was executed subsequently.
There is also ample material on record to show that Indiabulls had a direct involvement in the BTG Contract. It is not disputed that in terms of Clause 6 of the LoA, Shapoorji was obliged to provide Bank Guarantees to Indiabulls. It is also not disputed that in terms of the LoA, Shapoorji had furnished Bank Guarantees against the advances received as well as a Performance Bank Guarantee and the same were in favour of Indiabulls and not Elena. Thus, Indiabulls had secured itself against performance of the BTG Contract by Shapoorji - It is also not disputed that Indiabulls had directly issued Letters of Credit to Shapoorji and made certain payments to Shapoorji, which were due under the BTG Contract. In the given facts, this Court finds it difficult to accept that Indiabulls can avoid its obligation to arbitrate even though it has been a direct beneficiary of the BTG contract and to some extent been directly involved with Shapoorji in negotiating and execution of the contract.
There is material on record to impute that Indiabulls is a party to the arbitration agreement. There is also merit in Mr. Mukhopadhyay's contention that since Shapoorji had made a revised offer to Indiabulls and it is not disputed that the same was accepted, it must follow that the resultant contract was also made with Indiabulls. Clearly, a third party cannot accept an offer to constitute binding contractual obligations and it is not disputed before this Court that the LoA did give rise to a contract that bound Shapoorji to the terms contained therein. The LoA was accepted by Shapoorji. Thus, it also agreed to the terms thereof which are stated above, which included a specific condition that it would enter into a formal contract agreement with Indiabulls - Estoppel principles have frequently been applied by Courts in the United States of America to hold that a party is bound by the arbitration clause associated with the substantive contractual agreement.
Whether the relationship between Indiabulls and Elena and their conduct, is sufficient to compel Indiabulls to be a party to the arbitration regarding the disputes raised by Shapoorji? - HELD THAT:- This Court is inclined to accept the contention that Elena is a Special Purpose Vehicle and it would be apposite to treat Elena as an extended division of Indiabulls as it is not involved in any other business other than executing the projects for Indiabulls. Although it is contended that Elena is an independent contractor and was awarded three separate contracts by Indiabulls, there is no material on record to indicate that Elena and Indiabulls function as independent and separate organisations. On the contrary, there is material to indicate that Elena is not organized and staffed separately and is independent of Indiabulls.
This Court is of the view that it would be apposite to compel Indiabulls to arbitrate as there is sufficient material to show that Elena is its alter ego. This is evident from the fact that Elena's name has been mentioned in parenthesis against the name of Indiabulls in the LoA. The shareholding pattern confirms that Indiabulls does exercise complete control as a shareholder over Elena. The fact that the officials of Indiabulls acted on behalf of Elena also indicate that Indiabulls exercises substantial and dominant direct control over the affairs of Elena.
Elena had appointed Justice C.K. Prasad as its nominee arbitrator. He would also be considered as the nominee Arbitrator of Indiabulls. He, along with the learned Arbitrator nominated by Shapoorji, shall nominate the third Arbitrator to constitute an Arbitral Tribunal within a further period of two weeks from date, failing which the parties are at liberty to approach this Court for appointment of the third Arbitrator.
Petition allowed.
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2021 (4) TMI 1280
Receipts arising on sale of carbon credits - revenue or capital receipt - HELD THAT:- AS following the decision of the Co-ordinate Bench of this Tribunal in the case of Ambika Cotton Mills Limited and the decision in the Sri Velayudhaswamy Spinning Mills (P) Limited [2015 (4) TMI 132 - ITAT CHENNAI] as also on account of the fact that the legislature has by intent providing for taxing of the receipts from the sale of carbon credits under a special provision of Section 115BBG w.e.f 01.04.2018 and as the appeals relate to the period before this date, the receipts arising to the assessee herein on the sale of carbon credits is held to be capital receipt. Consequently, the order of the learned CIT(A) and that of the learned Assessing Officer on this issue stands reversed.
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2021 (4) TMI 1279
Validity of assessment order - ex-parte order - levy of tax on unaccounted purchases - rectification application - HELD THAT:- It is seen that the petitioner had preferred rectification application under Section 66 of the KVAT Act after issuance of the assessment order under Section 25 of the KVAT Act for the year 2016-17. The rectified assessment order has already been passed which is at Ext.P4. Dissatisifed with the said rectified assessment order, petitioner has again preferred further application which is at Ext.P5. The endorsement on that application makes it clear that the same has received by the authority on 26.03.2021. Within few days, the petitioner has approached this Court and the learned counsel for the petitioner is seeking a direction to the respondents to decide the application at Ext.P5 in a time bound manner.
Once the rectification application has been disposed of and the rectified assessment order is passed, the remedy, if any, which can be available to the petitioner is that of challenging the rectified assessment order in a statutory appeal. He cannot go on by filing rectification applications again and again - Petition dismissed.
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2021 (4) TMI 1278
Seeking multifarious reliefs embracing several causes of action, including a challenge to the termination orders of the employees working in the Food and Beverages department of Delhi Golf Club - issuance of various directions to DGC, Government of India, Government of National Capital Territory of Delhi and other Authorities under different labour welfare legislations - HELD THAT:- The functions carried out by DGC cannot even remotely be termed as public functions. Providing recreation as a Club to its restricted members cannot be compared to the functions of the BCCI on any pedestal.
Since this Court has held that writ petitions are not maintainable as no writ would lie against a private body not performing public functions, it would be unnecessary to decide the other issues raised by the parties including the existence or otherwise of an alternate remedy. It is left open to the Petitioners to resort to appropriate remedies available to them in accordance with law for ventilating the grievances raised in the present petitions. It is made clear that this Court has not expressed any opinion on the merits of the issues raised.
Petitioners seek prosecution of the office bearers of DGC, alleging violation of the various provisions of the Industrial Disputes Act, 1947, Factories Act, 1948, Disaster Management Act, 2005 and Contract Labour (Regulation & Abolition) Act, 1970. The reliefs sought cannot be granted by this Court as it is the prerogative of the State Government to initiate prosecution, depending on the facts and circumstances of each case before it. A writ of mandamus cannot be issued for directing prosecution or institution of legal proceedings to any party and there is a complete mechanism available to the Petitioners under the relevant statutes for the said purpose.
Petition dismissed.
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2021 (4) TMI 1277
Rejection of claim of application - initiation of CIRP - Condonation of delay of 52 days (12.01.2021 to 04.03.2021) in submission of the claim by the Applicant before the 2nd Respondent in the liquidation process - HELD THAT:- CIRP in respect of CD was initiated by Adjudicating Authority vide its order dated 29th October, 2019, at the instance of M/s. Sri Visveswaraya Co-operative Bank Ltd. Accordingly, Public Announcement was given on 20th November, 2019, by inviting claims from creditors of CD in prescribed form with last date as 4th December, 2019 and also specified estimated date of closure of CIRP as 26th April, 2020. Subsequently exclusion/extension of time was granted by Adjudicating Authority, and having failed to get suitable Resolution Plan, the CD was placed under Liquidation process as early as on 2nd December, 2020. However, the Applicant pleading ignorance about the said developments, has in casual way awoke and responded only to public Announcement given under Liquidation process, by submitting its claim only on 04.03.2021, that too after last date was over by citing untenable grounds.
The reasons cited by the Applicant that it was unaware of the CIRP/Liquidation of Corporate Debtor, the State would lose its legitimate dues viz., the tax collected from public, it is duty of Liquidator alone to verify its records etc., are not at all tenable. While alleging that the Liquidator has failed to discharge his duties, the Applicant has failed to take any action at appropriate time to recover tax and they cannot wait for proceeding to be initiated by others under provisions of the Code. The Applicant has absolute independent right to initiate appropriate action to recover the tax in question but they have failed to discharge their duties. The reasons cited for delay in approaching the Liquidator are not at all tenable.
The Respondent has followed extant provisions of law in continuing proceedings under the provisions of the Code, and the impugned order cannot be interfered with - application dismissed.
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