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Showing 121 to 140 of 1409 Records
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2020 (12) TMI 1292
Drugs trafficking - Recovery of illegal drugs - Section 167 (2) of the Cr.P.C. - HELD THAT:- On perusal of the said decision rendered by the Hon'ble Supreme Court in SARAVANAN VERSUS STATE REPRESENTED BY THE INSPECTOR OF POLICE [2020 (10) TMI 1249 - SUPREME COURT], the contention of the learned counsel appearing for the petitioner appears to be correct. The issue involved therein was whether while releasing the appellant accused therein on default bail/statutory bail under Section 167 (2) CR.P.C., any condition of deposit of amount as imposed by the High Court, could have been imposed? The answer of the Hon'ble Supreme Court was in the negative and held that the only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the investigation is not completed and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail. No other condition of deposit of the alleged amount involved can be imposed. Imposing such condition while releasing the accused on default bail/statutory bail would frustrate the very object and purpose of default bail under Section 167(2), Cr.P.C.
The provisions of Section 167 (2) would apply to the accused arrested under the provisions of the ND & PS Act - petitioner shall be released on default bail provided he is ready to furnish PR bond to the satisfaction of the Special Judge, ND & PS, Manipur - Bail application allowed.
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2020 (12) TMI 1291
Seeking the sanction of scheme of amalgamation - sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- The requirements of the provisions of sections 230 and 232 are satisfied by the petitioner-companies. The proposed scheme is bonafide and in the interest of share- holders and creditors.
The composite scheme of amalgamation is attached herewith as annexure A and is declared as that the same shall be binding upon all the petitioner-companies, their shareholders, creditors and all concerned under the composite scheme of amalgamation - Application allowed.
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2020 (12) TMI 1290
Allegation of rape - reversal of order of acquittal passed by the learned trial Court - whether the High Court is justified in interfering with the order of acquittal passed by the learned trial Court and thereby convicting the accused? - disadvantage of the mental sickness and low IQ of the victim, was taken - scope and ambit of Section 378 Cr.P.C. - HELD THAT:- In the facts and circumstances of the case the High Court is justified and, as such, has not committed any error in reversing the order of acquittal passed by the learned trial Court and convicting the accused for the offences under Sections 376 and 506 IPC. Being the first appellate Court, the High Court was justified in reappreciating the entire evidence on record and the reasoning given by the learned trial Court.
The High Court has specifically found that the IQ of the victim was 62 which was based on the history and mental state examination of the victim. The High Court has also come to the conclusion that the victim was not in a position to understand the good and bad aspect of the sexual assault. Merely because the victim was in a position to do some household works cannot discard the medical evidence that the victim had mild mental retardation and she was not in a position to understand the good and bad aspect of sexual assault. It appears that the accused had taken disadvantage of the mental illness of the victim. It is required to be appreciated coupled with the fact that the accused is found to be the biological father of the baby child delivered by the victim.
Considering the evidence on record, more particularly the deposition of PW11 and PW22 and even the deposition of the other prosecution witnesses, the High Court has rightly observed that case would fall under Section 375 IPC and has rightly convicted the accused for the offence under Section 376 IPC. Even as per clause fifthly of Section 375 IPC, “a man is said to commit rape”, if with her consent when, at the time of giving such consent, by reason of unsoundness of mind, is unable to understand the nature and consequences of that to which she gives consent - On evidence, it has been established and proved that the victim was mentally retarded and her IQ was 62 and she was not in a position to understand the good and bad aspect of sexual assault. The accused has taken disadvantage of the mental sickness and low IQ of the victim.
From the medical evidence, it emerges that IQ 62 falls in the category of ‘mild mental retardation’. It has also emerged that the mental status and IQ are determined on the basis of the injuries and activities. IQ of a person can be known on the basis of the questions, activities and the history of a patient. Therefore, even if there might be some contradictions with respect to language known by the victim, in that case also, it cannot be said to be the major contradictions to disbelieve the entire medical evidence on the mental status of the victim. Therefore, the High Court is justified in reversing the order of acquittal and convicting the accused for the offences under Sections 376 & 506 IPC.
Submission on behalf of the accused that he has already undergone four years RI out of seven years RI awarded to him and is married and has two children and therefore a lenient view may be taken - HELD THAT:- It is required to be noted that as such the High Court has also taken a very lenient view by imposing the minimum sentence of seven years RI. It is required to be noted that it is a case of sexual assault on a victim whose IQ was 62 and was mentally retarded and that accused has taken undue advantage of the mental sickness/illness of the victim. A person suffering from mental disorder or mental sickness deserves special care, love and affection. They are not to be exploited. In the present case, the accused has exploited the victim by taking disadvantage of her mental sickness/illness. Therefore, no interference of this Court against the impugned judgment and order passed by the High Court convicting the accused is called for.
Appeal dismissed.
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2020 (12) TMI 1289
Maintainability of application before Bench-I of the National Company Law Appellate Tribunal (NCLAT) - HELD THAT:- The present petition is disposed of granting liberty to the petitioner to mention his application before Bench-I of the NCLAT for listing.
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2020 (12) TMI 1288
Auction purchase - issuance of final sale certificate to the auction purchaser - HELD THAT:- We should hear this matter finally and decide the rights of the respective parties over the secured assets. We may only say that till the disposal of this petition, the Bank may not proceed to issue the final sale certificate.
Let notice be issued to the respondents, returnable on 17.12.2020. Mr. Antani, the learned AGP, waives service of notice for and on behalf of the respondents Nos.1 and 2, whereas the respondent No.3 shall be served by the Bank through E-mail or through direct service.
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2020 (12) TMI 1287
Sale of property by way of auction - account of the borrower was declared or classified as NPA - issue of notice under Section 13(2) of the SARFAESI Act - mortgaged properties were tried to be put on auction but the Bank failed - HELD THAT:- At this stage, Mr. Kavina pointed out that the law is well settled in view of the two pronouncements of this Court that the Bank will have precedence over the charge of the State in view of Section 26E of the SARFAESI Act. According to Mr. Kavina, the State may not be able to enforce such charge in view of the settled position of law, but in the process, the Bank will also loose its legitimate dues.
Mr. Antani is requested to immediately get in touch with the authority concerned and discuss the matter. It should not happen that the State also fails in enforcing its charge, and at the same time, the Bank would also loose its legitimate dues. In other words, in this imbroglio, the public exchequer should not suffer. In the peculiar fact situation, we are adjourning this matter for tomorrow. The Registry shall prepare a Board and notify this matter for hearing
Let this matter come up tomorrow for further hearing as a special case. Post the matter on 12th December, 2020.
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2020 (12) TMI 1286
Sale of property by way of auction - buyer who has offered to purchase the property - entire exercise is required to be completed within 90 days - HELD THAT:- The matter is filed before the registry long back and if the aforesaid exercise is not completed within time limit, it would be again very difficult for the petitioner bank to find the buyer. It is also noted that the petitioner has filed two sets of the petition before the registry.
Under the circumstances, office is directed to place this matter before Appropriate Division Bench on 11.12.2020.
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2020 (12) TMI 1285
Validity of attachment order - overriding of charges of the Respondent under Section 48 of the VAT Act - first priority of the bank over the dues vis-a-vis. the Value Added Tax dues under the VAT Act, 2003, which the State Government wants to recover from the assets of the defaulter i.e. the respondent No.3 - HELD THAT:- The issue is nor more res-integra as decided in the case of Kalupur Commercial Coop. Bank Ltd. Vs. State of Gujarat [2019 (9) TMI 1018 - GUJARAT HIGH COURT] where it was held that
Thus, the Bank i.e. the writ applicant has the first charge over the secured assets. The State cannot rely upon the Section 48 of the VAT Act for the purpose of seeking precedence over the claim of the Bank.
The communication addressed by the respondent No.2 to the Talati of Bhunava Gram Panchayat, Taluka Gondal, Dist. Rajkot, to mutate appropriate charge over the immovable properties of the borrower (the respondent No.3) in the revenue record is not sustainable - Application allowed.
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2020 (12) TMI 1284
Unable to claim transitional credit under DVAT Act - input tax credit - technical glitches in uploading Form TRAN–1 - it was held by Delhi High Court that The Court therefore, directs that the Respondents to either open the Portal to enable the Petitioner to again file the TRAN-1 Form electronically, failing which they will accept the TRAN–1 Form already filed manually by the Petitioner - HELD THAT:- Delay condoned.
Issue notice.
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2020 (12) TMI 1283
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It is the 'date of default' which is the basis on which the applicability of the notification is to be applied and not the date of filing a Petition in this Tribunal. As the date of default is 03.06.2017 and onwards, the petition survives for consideration, on merits.
It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified reasons as per the Code. The Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited [2017 (9) TMI 1270 - SUPREME COURT], has inter alia held that I&B Code, 2016 is not intended to be substitute to a recovery forum. It is also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked.
In the instant case, it is found that from 2017 itself a dispute has been going on with regard to the quality of goods supplied by the Petitioner and the payments due from the Respondent, i.e. much prior to the issue of the Demand Notice under the Code and filing of the instant Petition. It is seen from the email dated 15.07.2017 and 01.08.2017, i.e. prior to the filing of this Petition, which were sent by the Respondent to the Applicant, that the Respondent had already raised disputes regarding the shoddy work done by the Applicant and the quality of the goods supplied - From the evidence brought on record, it is convincing that the disputes cited were genuine, were taken into other forums such as MSMEC, and documented, and not merely a made up dispute or ruse to stall initiation of CIRP.
In the instant case, it is admittedly a real dispute that has been taken to the MSMEC for resolution. Hence as far as the IBC is concerned, existence of such a dispute takes the Petition out of the ambit and scope of this Tribunal - it cannot be said that the Respondent has lost its substratum and is unable to run its business or pay its debts. Such a company cannot be unjustifiably pushed into an insolvency resolution process as that would be against the objects of the Code.
In view of the pre-existing dispute between the two sides, the readiness of the Corporate Debtor to settle the debt, as also for the reason that the Corporate Debtor is a solvent company; we are not satisfied that this is a fit case for ordering CIRP against the Respondent Corporate Debtor - petition disposed off.
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2020 (12) TMI 1282
Maintenance of status quo - composition of the Board of Directors of the Respondent Company prior to the alleged Board Meeting - HELD THAT:- This appeal is disposed off by requesting the Tribunal to accord priority to the matter and make endeavours for expeditious disposal of the Company Petition alongwith all connected Interlocutory Applications, preferably within two months.
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2020 (12) TMI 1281
Validity of assessment order - applicability of time limitation in reopening and reassessing the returns filed by the appellant for the year 2005-06 - inter-State Trade on C forms - HELD THAT:- The impugned order at annexure A passed by the first respondent confine itself to validity of the order of reassessment on the ground that the authorities were not beyond the period of limitation in reopening and reassessing the returns filed by the appellant for the year 2005-06. It does not go into the actual calculations as to whether the taxes, interest and penalty demanded by the order of respondent No. 2 is correct or not.
The respondent No. 2 as per the provisions of section 9 of the KVAT Act ought to have relooked as to whether there is any error apparent on the face of the record as mentioned by the appellant. He has failed to do so - the matter is remanded back and respondent No. 2 is directed to consider the request of the appellant and pass such orders in accordance with law - appeal allowed by way of remand.
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2020 (12) TMI 1280
TDS u/s 194B or 194BB - disallowance in respect of payment of stake money under section 40(a)(ia) - stake money and cups disbursed to horse owners without deducting TDS - HELD THAT:- As decided by Mumbai Tribunal in case of Royal Western Turf Club Ltd [2019 (8) TMI 402 - ITAT MUMBAI] section 194B/194BB are not applicable to stake money.
Respectfully following the same we also hold that stake money paid by assessee to the horse owners are not liable to TDS under section 194B or section 194 BB of the Act. Consequentially no disallowance could be made under section 40 (a) (ia) of the act in the hands of assessee. - Decided in favour of assessee.
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2020 (12) TMI 1279
Disallowance u/s 40(a)(ia) - no tax was deducted on the interest expenses - AR submits that one of the recipient i.e. India Bulls has shown interest expenses as their income and have offered the same for taxation as assessee has obtained certificate of Accountant and the provisions of section 201(1) of Income Tax Act, certifying that they have paid the tax on such interest income. Thus, the condition of second proviso of section 40(a)(ia) have been fulfilled - HELD THAT:- As the second provision the section is applicable and that no disallowance interest expenditure can be made in the hand of assessee and that various benches of Tribunal has taken a view that the second proviso is curative and declaratory in nature. The ld. AR of the assessee has also placed on record the certificate of Chartered Accountant under section 201(1) of the Act, certifying the facts that India Bulls (one of the recipients) has included the said interest income in their income and has paid tax thereon.
We are in the agreement, the submission of assessee that in case the recipient (India Bulls) has included the interest paid by assessee, in their income and have paid tax therein, no disallowances can be made in the hand of assessee. Therefore, we direct the Assessing Officer to verify the fact and allow appropriate relief to the assessee in accordance with law. The assessee also directed to supervise necessary evidence to the Assessing Officer.
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2020 (12) TMI 1278
Seeking grant of Bail - Smuggling - Gold Biscuits - offences punishable under Section 135 of the Customs Act, 1962 - HELD THAT:- The appellant is entitled to the facility of bail under Section 439 Code of Criminal Procedure. It is therefore, directed that
he appellant shall be produced before the Trial Court within three days from today and the Trial Court shall release him on bail on such conditions as the Trial Court may deem appropriate to impose; including
(i) That the appellant shall not go beyond the jurisdiction of the concerned Court without express permission of the Trial Court.
(ii) That he shall report to the concerned Police Station every Monday at 10.30 AM and shall make himself available and co-operate with investigation.
Appeal allowed.
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2020 (12) TMI 1277
Disallowance of the provision - Whether Tribunal erred in holding that the Appellant had failed to demonstrate either before the lower authorities or before it that the liability had accrued during the year, arrived at a finding that was contrary to the material placed on record and thus perverse? - HELD THAT:- As assessee had produced a comparative statement showing the sales in which erection is pending, the corresponding provisioning, the actual expenses incurred in the next year for financial years 2005-06 to 2011-12 and ledger account extracts of the provisions for erection and commissioning, which evidences reversals as on the last day of financial year. However, the CIT(Appeals) has not taken note of the aforesaid material produced by the assessee.
Tribunal has held that the assessee has failed to demonstrate either before the CIT (A) or before the tribunal that liability has accrued during the year and the fact that the substantial provision was reversed in subsequent years. The aforesaid finding is contrary to the material available on record. Therefore, in the facts of the case, the material produced by the assessee before the Commissioner of Income Tax (Appeals) as well as the tribunal needs factual adjudication - Remit the matter to the Commissioner of Income Tax (Appeals) to adjudicate the aforesaid issue afresh in the light of materials produced by the assessee and in view of law laid down in CALCUTTA CO. LTD. [1959 (5) TMI 3 - SUPREME COURT], BHARAT EARTH MOVERS [2000 (8) TMI 4 - SUPREME COURT] and ROTORN CONTROLS INDIA PVT. LTD. [2009 (5) TMI 16 - SUPREME COURT]
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2020 (12) TMI 1276
Reopening of assessment u/s 147 - assessee is beneficiary of bogus long term capital gain - HELD THAT:- AO after analyzing the information received from the Directorate of Investigation recorded reasons u/s 148(2) by referring to the return of income filed by the assessee and information furnished by the assessee qua the sale of shares and long term capital gain and came to conclusion that assessee’s income has escaped assessment accordingly.
Reopening of assessment is based on specific information as the director of investigation has specifically provided information to the AO that assessee is beneficiary of bogus long term capital gain which is a part of big racket - we do not find any merit in the contentions of the assessee that there is no linkage between the report of the investigation wing, statement of various individual recorded during the search with the facts of the appellant. Though the statement of various persons/brokers/exit provider did not name the assessee, however, during overall investigation of the entire scam the assessee’s name came to light that he is beneficiary of these bogus long term capital gain - we are inclined to dismiss the ground raised by the assessee on jurisdiction. Accordingly ground no. 1 is dismissed.
Addition u/s 68 and u/s 69C of the Act being 5% commission on total sales proceeds - As we find merit in the arguments of the Ld A.R. that assessee has furnished all the informations, details, documentary evidences before the AO but the AO has not done any further verification to find out the truth or done anything to prove the money trail of the funds as has been alleged in the order. Under these circumstances, we are not in a position to sustain the order of Ld. CIT(A) upholding the order of AO wherein the long term capital gain has been held to be non genuine and bogus - we are inclined to set aside the order of Ld. CIT(A) and direct the AO to delete the addition made under section 68. Addition made by the AO towards commission paid on the accommodation entry is a consequential one and is also deleted.
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2020 (12) TMI 1275
Seeking time to file counter affidavit - HELD THAT:- Time as prayed for is granted.
Let counter affidavit be filed before the next date of hearing. Status quo as on today with regard to ownership, possession and encumbrance upon the properties in question shall be maintained by the parties on both sides of the appeal.
List on 08.01.2021.
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2020 (12) TMI 1274
Liquidation of Corporate Debtor - no resolution plan has been approved and the Committee of Creditors (CoC) has unanimously decided to initiate liquidation proceedings of the Corporate Debtor - Section 33(1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Today the CIRP is at this stage that not only 270 days of CIRP have expired but also a huge period beyond 330 days has lapsed.
Ms. Vandana Garg is hereby appointed as Liquidator as provided under Section 34(1) of the Code - liquidation application allowed.
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2020 (12) TMI 1273
Exemption u/s 11 - whether any activity of rendering any service in relation to any trade, commerce or business for a cess or fee shall not be charitable if receipt from such activities is more than 25 lacs during the year? - assessee is a society registered u/s. 12A of the Act and is also notified u/s. 80G(5)(vi) - HELD THAT:- As on identical facts in A.Y. 2011-12 [2019 (11) TMI 1036 - ITAT DELHI] his predecessor allowed the appeal of the assessee and directed the AO to allow exemption u/s. 11 - it is held that the assessee is apparently not involved in any trade, commerce or business and as such the proviso to section 2(15) is not applicable. Exemption under section 11(1) is allowed to the assessee. Accordingly, the Assessing Officer is directed to allow exemption under section 11, with all the consequential benefits. Ground of the appeal are allowed.
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