|
Advanced Search Options
Case Laws
Showing 181 to 200 of 1432 Records
-
2021 (8) TMI 1253
Validity of Constitutional writ jurisdiction of this Court - existence of personal grievance or not - petitioner is a stranger - grievance is that the department is not taking action on the basis of his complaint against the said person though he is not personally aggrieved by any action of the respondent authorities - HELD THAT:- This writ petition is dismissed in limine.
-
2021 (8) TMI 1252
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational debt or not - time limitation - Section 8 of the IBC, 2016 - HELD THAT:- There is no reason to interfere with the impugned order KODEBOYINA SRINIVAS KRISHNA VERSUS PVM INNVENSYS PVT. LTD., C-TEL INFOSYSTEMS PVT. LTD. [2020 (9) TMI 1035 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI].
Appeal dismissed.
-
2021 (8) TMI 1251
Seeking out-of-turn disposal of appeal - HELD THAT:- Learned Authorised Representative submitted that he would need to ascertain the stand of the respondent in relation to a subsequent order passed by the first appellate authority in another dispute.
These applications for early hearing are allowed - Registry is directed to list the appeals for disposal on 14th September 2021.
-
2021 (8) TMI 1250
Seeking grant of bail - validity of the conditions imposed - petitioner contends that the conditions imposed by the Sessions Court are onerous and would defeat the very purpose of grant of bail - HELD THAT:- Issue notice to the respondent.
List on 01.09.2021.
-
2021 (8) TMI 1248
Seeking liberty to place on record a copy of order - Section 151 of the CPC - HELD THAT:- The respondents having been served with the advance notice of this application and having chosen not to be represented, it is considered appropriate that the documents sought to be placed on record with Co Appl. No. 456/2021 are allowed to be placed on record and furthermore, as prayed on behalf of the petitioner, a fresh hearing in the matter is granted.
The matter be thus renotified for consideration for the date 22.9.2021 at 3:30 p.m. - Application disposed off.
-
2021 (8) TMI 1247
Non-grant of interim order by the Tribunal for which 07.10.2021 has been fixed - HELD THAT:- Keeping in view that in the meantime if certain actions are taken, the appellant would suffer irreparably, we direct that the matter be taken up by the NCLAT on 07.09.2021 instead of 07.10.2021 for passing suitable orders on stay application of the appellant. We further direct that any action taken in the meanwhile, will be subject to further orders passed by the NCLAT while considering the application for interim order.
The appellant is at liberty to inform the other side about the preponement of the date before the NCLAT.
Appeal disposed off.
-
2021 (8) TMI 1246
Reopening of assessment u/s 147 - Bogus purchases u/s 69C - HELD THAT:- In view of the AO’s as well as the CIT(A)’s respective detailed discussions justifying the impugned re-opening(s) based on the Investigation Wing, Mumbai’s information pinpointing the specific inputs in search proceedings including M/s.Bhanwarlal Jain group authorised persons statement(s) to have been providing bogus accommodation entries. We therefore hold that the Assessing Officer had rightly initiated the impugned re-opening process in all these three cases. The assessee fails in its identical first and foremost ground therefore.
Quantification of the impugned bogus purchases - As considered the foregoing rival submissions and find no reason to delete the impugned bogus purchases disallowance/addition in entirety in all these three assessment years. This is for the precise reason that going by the circumstances before us, it can be safely inferred that the assessee obtained bogus purchase invoices from M/s.Bhanwarlal Jain group and further sourced its purchases from other suppliers - this tribunal’s coordinate bench in ITO Vs. M.Shailesh and Co. [2019 (1) TMI 1922 - ITAT MUMBAI] as well as various other similar orders hold that only a percentage of such purchases than the entire amount(s) thereof has to be disallowed - interest of justice that the impugned bogus purchases in all these three year(s) deserve to be restricted to disallowance @8% only in the given facts and circumstances with a rider that the same shall not be taken as a precedent in any other case. Necessary computation shall follow as per law.
-
2021 (8) TMI 1245
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dispute - Operational Creditors - existence of debt and dispute or not - Whether or not, a Letter communicating requirement of reconciliation can be said to be raising of a dispute? - HELD THAT:- The Appellant/Promoters/Directors of the ‘Corporate Debtor’ are directed to handover the assets and records of the ‘Corporate Debtor’ to the ‘Interim Resolution Professional’ immediately (if not yet handed over). The ‘Interim Resolution Professional’/ RP will make effort that the Company remains a going concern and will take assistance of the (suspended) Board of Directors and the officers/Director/Employees. The persons who are working will, at present continue to perform their duties, including the paid Directors. The person who is authorized to sign the bank cheques may sign cheques only after authorization of the ‘Interim Resolution Professional’ with counter signature of the ‘Interim Resolution Professional’/ RP at the back side of the cheques.
List the Appeal ‘For Admission (After Notice)’ Hearing on 07th October, 2021.
-
2021 (8) TMI 1244
Provisional release of confiscated goods - prohibited goods - order made under Section 125 of Customs Act - HELD THAT:- There are no reason to differ from a number of orders that have been passed by this Court in the past for provisional release of goods. However, it has been pointed out to us that at least on and from 01.04.2020, the goods, according to the Department, are clearly prohibited goods and on and from this date, unless an order is made under Section 125, the goods must stand confiscated.
The confiscation of these goods is stayed. The Notification dated 01.04.2020 is the subject matter of controversy before this Court, particularly in view of a subsequent Notification dated 18.03.2021 that has been pointed out by Mr. Arvind Datar, learned senior counsel.
The goods involved in these petitions, are allowed to be provisionally released on the same terms that have been indicated in all the other cases - SLP disposed off.
-
2021 (8) TMI 1243
TP Adjustment - international transaction of payment for CCR Divisional Cost treating at Nil - HELD THAT:- TPO on one hand admitted that the assessee availed services from its AE and rendering of services by the AE to the assessee. In our opinion the said services were in terms of agreement as discussed above and evidences also on record substantiating the said services which clearly demonstrate that the assessee availed services from its AE. Therefore, we hold that the assessee proved the receipt of services from its AE. The ld. DR reported no objection in remanding the matter to the TPO for determination of arms length price. Therefore, we deem it proper to remand the issue to the file of TPO for its fresh adjudication to determine the ALP of international transaction in respect of CCR Division Cost. Thus, the ground No. 3 raised by the assessee is allowed for statistical purpose.
Disallowance of depreciation on goodwill - HELD THAT:- As relying on assessee’s own case for A.Y. 2003-04 [2016 (2) TMI 187 - ITAT PUNE] it is clear that the allowance of depreciation on goodwill is granted. There was no contrary view placed by the ld. DR before us. Thus, the ground No. 8 raised by the assessee is allowed.
Disallowance of depreciation on non-compete fees - HELD THAT:- Tribunal in assessee’s own case for A.Y. 2003-04 [2016 (2) TMI 187 - ITAT PUNE] it is clear that the allowance of depreciation on non-compete fees is granted.
Disallowance of depreciation on technical know-how and other assets - HELD THAT:- In the light of the orders of this Tribunal in assessee’s own case for A.Y. 2004-05 [2018 (1) TMI 12 - ITAT PUNE] it is clear that the allowance of depreciation on technical know-how and other assets is granted. There was no contrary view placed by the ld. DR before us. - Decided in favour of assessee.
Short grant of credit of taxes deducted at source - HELD THAT:- AR filed details of annual tax statement in Form No. 26AS and prayed to give a direction to the AO/TPO for examination of the same afresh. Upon hearing both the parties, we deem it proper to remand this issue to the file of AO/TPO for fresh adjudication by examining the details provided in Form No. 26AS and to decide the issue giving an opportunity to the assessee. Thus, ground No. 11 raised by the assessee is allowed for statistical purpose.
-
2021 (8) TMI 1242
Freezing of petitioner's Bank account - allegations of corruption and laundering - ED proceeded in accordance with the statutory provisions including Section 60 while conducting the Search & seizure operations - while issuing the show cause, the “reasons to believe” was not provided - HELD THAT:- It is considered appropriate to direct the ld. counsels appearing for the ED to seek instructions as to whether they can provide the requisite documents to the Petitioners - If any of the documents are available with the ED, the same shall be placed on record in a sealed cover with the Court on 20th August, 2021. If any of the documents are not available with the ED, the Court shall be informed accordingly.
List this matter for further hearing on 23rd August, 2021.
-
2021 (8) TMI 1241
Maintainability of petition - HELD THAT:- Petitioner states that the question of law, which arises in the present petition is still pending consideration before the Hon’ble Supreme Court of India.
At request, list on 18th November, 2021.
-
2021 (8) TMI 1240
Service to Respondents Through Joint Director - Preferential transactions under Section 43 of the Code - Undervalued transactions under Section 45 of the Code - Extortionate credit transactions under Section 50 of the Code - Fraudulent transactions under Section 66 of the Code - HELD THAT:- The contentions raised by the parties are one and the same and the transaction audit report is also more or less point out fraudulent conduct of erstwhile management. There has been thorough leakages taken place which has got a recurring effect until this day.
This Bench is very cautiously making this statement and emphasising on the fact of the legal position that the transaction audit reports reveal for fraudulent conduct in the companies mentioned in the cause title and their affect felt till this date of filing the petition. The UoI has taken initiative to curtail the acts of preferential and fraudulent transactions in the best possible manner and the public interest could be better served.
Whether to pass any order under Section 242(2)(m) of the Companies Act, 2013, to intervene or not since the Respondent Counsels are making submissions on the maintainability of the Petition in view of the provisions of Section 14 and 238 of the IBC? - HELD THAT:- The argument advances by the Ld. Counsels for the Respondents that the Petitioners have no power under Section 242 has no bearing for the reasons that the provision is very clear which shows that in the event the Central Government is of the opinion that the affairs of the company are been conducted in the manner provided and to protect the public interest it may itself be applied to the petitioner for the order under this chapter. Thus provisions of section 241(2)(m) of the Act are independent and have wide import as evident from IL&FS orders passed by this Bench and the Hon'ble NCLAT.
The cover under moratorium and the same could not be instituted or proceeded with. This is not a proceedings against the Corporate Debtor but for the Corporate Debtor. We certainly agree that the contention that no suit or proceeding can be instituted against the Corporate Debtors. But here the efforts made by the Union of India is to secure or restore the assets back to the ultimate victims of fraud and it is not any adversarial proceeding that is the proceeding in rem which has initiated by the Government of India to catch hold all the wrong doers and the fraudulent persons - It is to be considered that the CIRP process is still on and it means that the company operations would continue under the control of RP. If at all an interim order as sought by the Union of India is not passed, the devastating effect would be that the wrong doers, fraudulent persons would get away and the valuable assets of the companies would get depleted, bringing the irreparable loss to the stakeholders.
This Bench is surprised with the manner in which the financial institution has come forward to grant loans to a sinking ship and again come forward to file petition under Section 7 of IBC and again supports this petition - As this Bench is cautious that Union of India is taking steps and also carrying out investigation through SFIO, i.e. Serious Fraud Investigation office to unearth the fraud.
List the matter on 22.09.2021.
-
2021 (8) TMI 1239
Glitches and shortcomings in the computer programme and software - petitioner challenging the subsequent Form-3 issued by the respondent/revenue after a full and final settlement of disputed taxes in Form-5 - modification of the software, the DGIT (Systems) is directed to join the proceedings - Petitioner contending that the designated authority was rendered functus officio after initial Form-5 had been issued on 28th December, 2020 - HELD THAT:- During the hearing, learned counsel for the respondent/revenue admits that the new Form-5 to be issued to the petitioner would be a photocopy of the Form-5 which had been issued to the petitioner on 28th December, 2020. Consequently, this Court is of the view that the petitioner should not be asked to furnish Form-4 and the original Form-5 dated 28th December, 2020 should be restored without any further ado!
But learned counsel for the respondent/revenue states that it is imperative that the petitioner should once again complete the process by filing Form-4 as the portal does not permit restoration of the previous Form-5 dated 28th December, 2020.
This Court is of the opinion that technology is intended to ease and facilitate transactions and cannot be used as a basis for harassing an assessee by asking him to repeatedly file unnecessary and irrelevant forms. This Court is also of the view that the software and the computerised systems should abide by lawful directions and it cannot be that the computer lays down an agenda contrary to law according to which the Court and assessees have to function. If the only impediment, in the way of granting the relief sought by the petitioners, is the software, then the same should be suitably modified.
To consider modification of the software, the DGIT (Systems) is directed to join the proceedings by way of online audio-video link on the next date of hearing.
-
2021 (8) TMI 1238
TP Adjustment - Arm’s Length Price (ALP) adjustment regarding its corporate guarantee(s) - International transaction u/s 92B - HELD THAT:- There is no dispute that this tribunal’s various earlier coordinate bench decisions in Micro Ink Ltd [2015 (12) TMI 143 - ITAT AHMEDABAD], BHARTI AIRTEL LIMITED (BHARTI CRESCENT) [2014 (3) TMI 496 - ITAT DELHI] and Bartronics India Ltd [2017 (9) TMI 1649 - ITAT HYDERABAD] had indeed held a corporate guarantee to be purely a shareholder activity than forming an international transaction u/s.92B of the Act. This legal proposition is no more res integra in view of the PCIT Vs. M/s.Redington (India) Limited, [2020 (12) TMI 516 - MADRAS HIGH COURT]taking note of not only the foregoing legislative positions (supra) but also holding that the same carried retrospective effect as well.
We adopt the foregoing detailed discussion Mutatis Mutandis and hold that the learned lower authorities have rightly treated the assessee’s corporate guarantee(s) in all the three impugned assessment years as an international transaction falling u/s.92B.
-
2021 (8) TMI 1237
Seeking withdrawal of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and debt and dispute or not - seeking withdrawal in Form FA - Bonafide settlement agreement of certain employees, or not - HELD THAT:- As per the information provided by the IRP, the Bench notes that the total claim amount pertaining to the 567 employees of Rolta India translates into about ₹ 86.41/- crores. Therefore, Bench notes that even the settlement which has been proposed by the Promoter on the behalf of the Corporate Debtor Company keeps aside the majority of the Workmen Employees’ claim which has been brought out by the IRP. The Bench also notes that the proposed settlement with the employees under the Joint Settlement Agreement will be done only after they withdraw the Petition.
Interestingly enough, it is the Corporate Debtor is willing to pay the major part of the dues to the employees only subsequent to withdrawal of Petition through the settlement jointly and/ or severally with the Employees. The Bench feels that this provides an escape route to both the promoter as well as to the Corporate Debtor Company to conveniently wriggle out of the partial mini settlement at any point of time - The Bench is also aware of the fact that the present Application is not strictly speaking as per the procedure prescribed in Regulation 30A of the CIRP Regulations. The Regulation 30A of the CIRP Regulations requires that the Applicant have to put any application for withdrawal under Section 12A through the IRP, before the constitution of the Committee of Creditors.
The Bench is fully aware that after passing the “Admission Order” dated 13.05.2021 and after the commencement of CIRP, the proceeding are in rem and therefore, any decision regarding the continuation or otherwise of CIRP has to be decided in the interest of all stakeholders and not just a handful of employees. The Bench is fully aware of the fact that under Section 53 of IBC the debts of the Workmen rank equally with the financial debt owed to the secure/ unsecured creditors - the fact cannot be ignored while taking a decision, the Bench also has to take into account the interest of all stakeholders.
The Hon’ble Supreme Court has recently in the matter of Indus Biotech Pvt. Ltd. vs. Kotak India Venture (Offshore) Fund & Ors. [2021 (3) TMI 1178 - SUPREME COURT] has clearly observed that when a petition under is admitted/triggered it becomes a proceeding in rem and even the creditor who has triggered the process would also lose control of the proceedings as Corporate Insolvency Resolution Process is required to be considered through the mechanism provided under the IB Code.
As the Bench is aware and as submitted by the RP, about more than 100 employees have lodged their claims against the Corporate Debtor, However, only some employees’ claims are being settled by the ex-management/ Promoter of the Company. Therefore, the purported settlement lacks bona fide. The Bench, therefore, is of the considered view that, be that as it may, the interest of the employees would in any event will be taken care of during the CIRP of the Corporate Debtor and they being Operational Creditors will be entitled to their rights as provided for under the IBC. The Bench has no doubt in its mind that considering that CIRP proceedings are in rem, the substantial claims of Financial Creditors cannot be disregarded or ignored in view of the purported settlement of certain employees of the Corporate Debtor.
Application filed by Mr. Dinesh Gupta under Section 12A of the IBC is dismissed and the CIRP against the Corporate Debtor Company would continue.
-
2021 (8) TMI 1236
Jurisdiction - power of proper officer to issue SCN - Section 28(4) of Customs Act, 1962 - Rule 16 of the Customs and Central Excise Duties and Service Tax Drawback Rules 1995 - HELD THAT:- The judgments passed by Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COUR] and various other Courts clearly show that one of the issues which has been raised in the present writ petition to the effect that the Joint Director, DRI is not ‘the proper officer’ to issue show cause notice has been held in favour of the petitioner. It has further been held that the entire proceedings stand vitiated and are required to be set aside.
It is deemed appropriate to allow the writ petition and to set aside the entire proceedings from the issuance of the SCN to the passing of the order - application disposed off.
-
2021 (8) TMI 1235
Disallowances of payment on account of payment of employees contribution to Provident Fund and ESI - Amount paid before the due date before furnishing of the return of u/s 139 of the Act but not before the respective due date as prescribed under the law - HELD THAT:- The facts shows that the assessee has collected the sum being employee’s contribution under the provident fund and with respect to ESI laws. The above contribution was admittedly not deposited by the assessee within the due date prescribed under the respective ESI and PF statue however, same was deposited before the due date of filing of return of income - AO as well as the ld CIT(A) disallowed the same holding that such contribution becomes the income of the assessee under the provision of section 2(24)(x) of the Act and thereafter if the same is deposit within the due date prescribed under the respective laws then same is allowable as deduction u/s 36(1)(va).
Addition/disallowance made by the learned assessing officer of late deposit of employees contribution to the provident fund and ESI, as it is deposited before the due date of the filing of the return of an income but beyond the due date prescribed under the respective provident fund and ESI laws is not sustainable in law - Decided in favour of assessee.
-
2021 (8) TMI 1234
Maintainability of appeal - Resolution plan of the appellant has been approved by the Committee of Creditors (COC) and placed before the adjudicating authority - HELD THAT:- In the meanwhile, the respondent has filed an appeal before the NCLAT. While issuing notice on 09.03.2021, the NCLAT directed the adjudicating authority not to pass final orders till the appeal is heard.
In view of the NCLT hearing the matter and reserving it for orders, the NCLAT is directed to decide the matter on the next date of hearing - appeal dismissed.
-
2021 (8) TMI 1233
Recovery of Income Tax Arrears - property mentioned was already attached in Form ITCP 16 by the Income Tax Department - mortgage in existence - priority over the charge - HELD THAT:- A perusal of the entire Rule would reveal that it is not an appeal or Revision. It is an investigation by the Tax Recovery Officer, which is contemplated. Therefore, any third person if involved in such transfer of property, which is declared as void under Section 281 of the Income Tax Act may submit an application for investigation by Tax Recovery Officer. Therefore, the statute does not assume that every third person is liable under the Income Tax Act. Schedule II Rule 11 of the Income Tax Act is a beneficial provision in respect of the person, who was otherwise cheated by any of the defaulter of tax arrears, who in turn can submit an application for further investigation in order to cull out the truth or genuinity with reference to the transactions or transfers. Therefore, the Tax Recovery Officer during the pendency found that the charge created in favour of the petitioner Bank is valid, then he can pass appropriate orders withdrawing the attachment made under the provisions of the Act.
On the one hand, the Income Tax Act states that, where during the pendency of any proceedings under the Income Tax Act or after completion thereof, any assessee creates a charge on or parts with the possession by way of mortgage, sale, etc. Shall be void against any claim in respect of any tax. So also, the SARFAESI Act states that Section 26E contemplates that the secured creditors shall be paid in priority over all other debts and all revenues, taxes, cesses and other rates payable to the Central Government of State Government or local authority. Therefore, equal weightage is given in respect of the secured creditors. So also Section 31B of Recovery of Debts and Bunkruptcy Act, 1993 states that sale of assets over which security interest is created, shall have priority and shall be paid in priority over all other debts and Government dues including revenues, taxes, cesses and rates due to the Central Government, State Government or local authority - conflicting provisions in these three independent statutes are creating heart burning issues between the secured creditors as well as the Tax Department.
The “doctrine of constitutional priority” will have precedence over the other priorities. If the priority clause is provided under various enactments, the question arises as to which priority is to be held precedence over the other priorities. The test of traceability and recognition under the constitutional provisions would be the proper procedure to form an opinion - In the present scenario, the SARFAESI Act and the DRT Act provides priority to secured creditors, i.e. the banks hold priority. The Income Tax Act contemplates any such mortgage or sale during the pendency of any proceedings under the Income Tax Act shall be void. Thus, this Court has to test the supremacy on the basis of the constitutional recognition, which is supreme than the statutes enacted under the constitution. The taxation laws are constitutionally recognised with reference to the sovereignty and the policies of the Government. Thus the supremacy of the Constitution overtakes the statutes enacted and such enactments constitutionally recognised directly takes precedence over the other statutes.
The mortgages, transactions or transfers are made during the pendency of the Income Tax proceedings, then all such transfers, mortgages, transactions are void under Section 281 of the Income Tax Act and any such mortgage or attachment made by the Bank during the pendency of the Income tax proceedings, cannot be a ground to claim priority based on the provisions of the SARFAESI Act or DRT Act - the disputed factors cannot be adjudicated by the High Court under Article 226 of the Constitution of India and it is for the petitioner to establish the details regarding the mortgage and the pendency of Income tax proceedings under the Income Tax Act. It is for the petitioners to produce the documents in original and adjudicate the same in the manner prescribed under Schedule II Rule 11 of the Income Tax Act. Thus, it would be improper to form an opinion regarding the disputed facts between the parties to the lis in the present case, which requires adjudication of facts based on the documents and evidences.
The petitioner is at liberty to approach the Tax Recovery Officer by filing an appropriate application under Schedule II, Rule 11 of the Income Tax Act. In the event of filing any such application, the Tax Recovery Officer is directed to investigate the same with reference to the original documents and pass appropriate orders as expeditiously as possible - petition disposed off.
............
|
9911796707
