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Showing 21 to 40 of 2056 Records
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2019 (7) TMI 2037
Transfer of shares - whether the shares were transferred in the first place? - whether the Respondents could rightly claim that all due procedure under the Companies Act was followed for omitting the name of OP1 and entering the name of OR2 in the register of members? - it was held by NCLAT that 'the Appellants failed to prove such defence of gift before NCLT and us that the Appellants have justifiable reasons for their action to omit the name of the original Petitioners from the Register of members and to add that of Appellant No.1 - Smiti Golyan.'
HELD THAT:- It is found that the findings recorded by the National Company Law Appellate Tribunal, New Delhi, to be absolutely proper. No ground is made out to interfere with the impugned order(s) passed by the Tribunal.
The appeal is, accordingly, dismissed.
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2019 (7) TMI 2036
Reopening of assessment - Validity of second notice of reassessment - scope of two parallel assessments - HELD THAT:- As decided in Marwadi Shares & Finance Ltd. [2018 (5) TMI 1547 - GUJARAT HIGH COURT] second notice u/s. 148 was issued by the AO without withdrawing the first notice issued by the AO u/s. 148. This was held that the law does not recognize two parallel assessments. It was held that in the absence of withdrawal of the first notice of reassessment, the proceedings would survive making the subsequent notice of reopening invalid.
In the present case, we have noted that second notice of reassessment was issued on 31.03.2015 whereas the assessment pursuant to first notice of reassessment u/s. 148 could have been made by the AO up to 31.03.2015 and therefore, it has to be accepted that second notice of re-opening u/s. 148 was issued during the pendency of first notice issued by the AO u/s. 148 and therefore, this judgment of Hon’ble Gujarat High Court is squarely applicable - we hold that the second notice of reassessment u/s. 148 issued by the AO on 31.03.2015 is invalid and therefore, the assessment framed by the AO pursuant to this notice of reassessment u/s. 148 is void-ab-initio. Assessee appeal allowed.
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2019 (7) TMI 2035
Rectification of mistake - typographical errors in the impugned Order - HELD THAT:- There were only typographical errors in the impugned Order, which hereby stand rectified. There is no ground for recall of the impugned Order, as has also been conceded by Ld. Senior Advocate on behalf of the Petitioner.
It is also observed that before concluding, that essentially, the prayer made in both the Writ Petitions was to challenge the constitutional validity of Section 50 PMLA. It paragraph 84 of the impugned Order, reference has been made to the case of Vijay Madanlal Choudhary vs. UOI [2022 (7) TMI 1316 - SUPREME COURT], wherein the Three Judge Bench of Apex Court has upheld the constitutional validity of Section 50 of PMLA. Therefore, the relief sought may have existed at the time when the petition was filed in 2019, but with the findings of the Apex Court, the relief stood answered and satisfied.
It is clarified that the petitioner is at liberty to challenge the other reliefs as sought in their prayers in the Writ Petitions, before the appropriate Forum.
Application disposed off.
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2019 (7) TMI 2034
Quantum of compensation - Land Reference for enhancement of compensation - assessment of market value of the acquired land on the date of publication of notification under Section 4 (1) of Land Acquisition Act, 1894 - it was held by High Court that 'judgment and award passed by 2nd Joint Civil Judge, Senior Division, Latur is set aside' - HELD THAT:- No case is made out to interfere with the impugned order(s) passed by the High Court.
The special leave petition is, accordingly, dismissed.
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2019 (7) TMI 2033
Levy of penalty - amount of duty paid before the issuance of SCN and the same was properly reflected in the returns filed by the appellant - no requirement to issue SCN - HELD THAT:- There is no dispute about the fact that the entire duty demand along with interest was paid by the appellant and this was done prior to the issuance of show cause notice and this fact had been intimated to the department. In view of this, in terms of the provisions of Section 11A(2B), no show cause notice is required to be issued and hence there was no question of imposing any penalty on the appellant.
The impugned order imposing penalty is, therefore, set aside - Appeal allowed.
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2019 (7) TMI 2032
Seeking quashing of FIR - offences punishable under Sections 420, 409 I.P.C. - HELD THAT:- In view of the statement of learned Deputy Advocate General, this criminal writ petition has become infructuous and the same is dismissed as such.
The petitioner is directed to surrender before the Court concerned on or before 02.08.2019. It is made clear that as soon as the petitioner appears before the Court below and moves bail application, the same shall be considered as far as possible on the same day itself on its merit.
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2019 (7) TMI 2031
Maintainability of appeal on low tax effect in ITAT - Disallowance of Maintenance Charges deleted by CIT(A) - HELD THAT:- Admittedly, the tax effect in the Departmental Appeal is less than Rs.20 lakhs. Vide Circular No. 3 of 2018 dated 11.07.2018 issued by Central Board of Direct Taxes (CBDT) under section 268A of the I.T. Act, it has been directed that Department shall not file appeal before the Tribunal in case where the tax effect does not exceed the monetary limit of Rs.20 lakhs. It is also directed that this instruction will apply retrospectively to the pending appeals and appeals to be filed henceforth in the Tribunal.
It is also directed in this Circular, that pending appeals below the specified tax effect may be withdrawn/not pressed. CIT(DR), who appeared on behalf of Revenue, did not press the appeal in view of the aforesaid Circular of CBDT. We may also note that this appeal of Revenue would not fall within the exceptions provided in the aforesaid Circular. In the result, the Departmental Appeal is not maintainable, in view of aforesaid CBDT Circular. The Appeal of Revenue is dismissed as withdrawn/not pressed by the Ld. CIT(DR).
Revenue will be at liberty to file a miscellaneous application seeking recall of this order for restoration of the appeal, if it is found that the appeal of Revenue is not covered by aforesaid CBDT Circular.
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2019 (7) TMI 2030
TP Adjustment on Payment of Royalty - HELD THAT:- Since the facts of the impugned assessment year are identical to the facts of the preceding assessment year, therefore, following the order of the Tribunal in assessee’s own case for the immediately preceding assessment years, we restore the issue to the file of the A.O./TPO with a direction to decide the issue afresh [2018 (7) TMI 2348 - ITAT DELHI] and in accordance with the law in the light of the directions of the Tribunal. The ground of appeal No.2 raised by the assessee is accordingly allowed for statistical purposes.
TP adjustment in respect of the realization of receivables from the AEs considering the same to be an international transaction of loan - No adjustment is required on account of interest on receivables. We accordingly set aside the order of the AO/TPO/DRP and direct the A.O. to delete the disallowances so made. The grounds of appeal on this issue are accordingly allowed.
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2019 (7) TMI 2029
Entitlement of secured and unsecured creditors in a liquidation case - entitlement to enforce their full claim on the basis of the certificate under Section 19(22) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - HELD THAT:- It is not in dispute that the amount which is lying in deposit with the bank through the Company Court will have to be sent to the Recovery Officer for disbursement. However, looking to the dispute between the secured creditors regarding their unsatisfied claims and the objection raised by the unsecured creditors regarding their entitlement and the claims made by the unsecured creditors, in my view, it would be appropriate at this stage to direct the Recovery Officer to ascertain the entitlement of the secured creditors and the unsecured creditors keeping in view the priorities as per Section 529A of the Companies Act, 1956 and Section 31B of the RDB Act.
For the purpose of provisional determination of the entitlement of the secured creditors and unsecured creditors, the Recovery Officer shall consider that the amount of Rs.20,00,00,000/- is available for disbursement.
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2019 (7) TMI 2028
Refund of the excess credit reversed by them in terms of Rule 6 of CCR 2002/2004 as Rule 6 was amended retrospectively vide Sections 72 and 73 of the Finance Act, 2010 - recovery of interest.
Whether the appellants are entitled for refund of excess credit reversed by them? - HELD THAT:- The issue of restoring the credit by the appellants where credit has been reversed in excess has been settled in favour of the appellants. It is not the case of the Department that the credit or duty for that matter requires to be paid twice. The appellants have reversed the credit before the order of the confirmation of reversal in view of Hon’ble Supreme Court’s judgment in the case of Ballarpur Industries [1989 (9) TMI 102 - SUPREME COURT]. The appellants have demonstrated that they have only availed the credit and have not utilised it. As longs as the credit is not utilised, the entries in the register are just book entries and by no stretch of imagination can be treated as duty paid so as to invite the provisions of Section 11B of CEA 1944. The Assistant Commissioner himself has found that provisions of unjust enrichment are not applicable in such cases. In view of the judgment cited, the appellants are entitled to take recredit of the excess reversal.
Whether they are liable to pay interest on the amount held to be reversable by the learned Commissioner? - HELD THAT:- In view of the wordings of Rule 14 of CCR, payment of interest, if any, comes into play only when the credit is utilised. As the appellants have successfully demonstrated the credit is not utilised, the payment of interest is not warranted.
Appeal allowed.
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2019 (7) TMI 2027
Levy of penalty imposed on a truck driver for discrepancies in a road permit while transporting goods - in the road permit, the truck number was not mentioned and the truck had entered through the different entry point in the State of Jharkhand - violation of Section 72 (3) (a) of the Jharkhand Value Added Tax Act and Rule 42(2) framed therein - HELD THAT:- According to the road permit, which was issued on 01.01.2016, the consignment was shown to have left the destination on 01.01,2016 itself. By no stretch of imagination it could have taken more than one day to reach the entry point at Jharkhand, where the consignment was apprehended, which, as per the order passed by the Appellate Authority, was at a distance of only about 270 Kms - The order of the Appellate Authority shows that there is difference in the amount shown in the tax invoice as also in the 'Sugam G'. Even in the tax invoice, the number of the vehicle is missing.
In that view of the matter, it could not be held that the non-mentioning of the vehicle number in the tax invoice or in the 'Sugam G' road permit, was not with the intention to evade the tax, and since the vehicle was found to be entering the State of Jharkhand through a different entry point, that too after inordinate delay from the date of dispatch without any reasonable cause, the chances of the deliberate attempt to evade the tax liability, could not be ruled out. The form 'Sugam G' is statutory in nature, having been prescribed to ensure prevention of evasion of tax liability, and in such cases the strict compliance of the mandates of law are required to be followed, to avoid any reasonable apprehension of evasion of tax liability.
There are no merit even in the submission of learned counsel for the petitioner, that reasonable opportunity of hearing was not given to the petitioner. The notice to appear before the Commercial Taxes Officer, was served upon the petitioner personally, five days in advance, and by no stretch of imagination it could be held to be insufficient time given to the petitioner.
There are no illegality in the impugned orders passed either by the Commercial Taxes Officer, or the Appellate Authority, or even by the Tribunal, confirming the penalty imposed upon the petitioner, being the driver of the truck, carrying the consignment, with the defective road permit - application dismissed.
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2019 (7) TMI 2026
Reopening of assessment u/s 147 - proceedings made after completing of 4 years - AO had received information from Investigation Wing Mumbai as assessee had indulged in bogus transaction - HELD THAT:- As in the case of Amit Polyprints (P) Ltd. [2018 (5) TMI 1845 - GUJARAT HIGH COURT] wherein it was held that where reassessment proceedings were initiated on the basis of information received for Investigation Wing that the assessee had received certain amount from shell companies working as an accommodation provider, reassessment could not be held unjustified.
Similarly, in the case of Aradhna Estate (P) Ltd. [2018 (2) TMI 1534 - GUJARAT HIGH COURT] held that where reassessment proceedings were initiated on the basis of information received from Investigation Wing that the assessee had received certain amount from shell companies working as an accommodation entry provider, merely because these transaction were scrutinized by AO during original assessment, reassessment could not be held unjustified.
AO has in his possession a credible information that income chargeable to tax has escaped assessment hence proceedings u/s. 147 r.w.s.148 has been correctly initiated. Therefore, the contention and arguments raised by the learned counsel for the assessee are not sustainable in law. Accordingly, the validity of reopening of assessment is held to be sustainable in law, and therefore, upheld. Consequently, Ground No. 1 of the appeal is therefore, dismissed.
Estimation of income - bogus purchases - HELD THAT:- We observe that the assessee has failed to substantiate the purchases by not producing the parties in question and admission of the party that they have indulged in providing bogus accommodation entries - In the light of above facts and circumstances and considering the net profit of 5% as the average rate of the industry as observed as in the case of Mayank Diamonds Pvt. Ltd. [2014 (11) TMI 812 - GUJARAT HIGH COURT] we deem it fit to restrict the addition to 5% of total bogus purchases. Accordingly, addition @ 5% is sustained as against the addition sustained by the Ld. CIT(A) and balance is deleted. Accordingly, Ground No. 2 to 4 of appeal of the assessee are therefore, partly allowed.
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2019 (7) TMI 2025
Reopening of assessment u/s 147 - bogus purchase received - credible information from the DGIT (Inv.), Mumbai, indicating that the assessee had received accommodation entries - HELD THAT:- The sufficiency of material at this stage in determining whether commencement of proceedings u/s 147(a) was valid, what was to be seen was only the prima facie material; the sufficiency or correctness of the material was not a thing to be considered at that stage.
In the case of Phool Chand Bajrang Lal [1993 (7) TMI 1 - SUPREME COURT] held that one of the purposes of section 147 is to ensure that a party cannot get away by willfully making a false or untrue statement at the time of the original assessment and when that falsity comes to notice, to turn around and say: "You accepted my lie, now your hands are tied and you can do nothing." It would be a travesty of justice to allow the assessee that latitude. further relied in the case of Pramamount Communication (P.) Ltd. [2017 (7) TMI 621 - SC ORDER] affirming the judgement of Paramount Communication (P.) Ltd. [2017 (4) TMI 188 - DELHI HIGH COURT] held that Information regarding bogus purchase by assessee received by DRI for CCE which was passed on to the revenue authorities was “tangible material on record “to initiate valid reassessment proceedings.
Our view is further supported by the judgement of Amit Polyprints (P) Ltd. [2018 (5) TMI 1845 - GUJARAT HIGH COURT] wherein it was held that where reassessment proceedings were initiated on the basis of information received for Investigation Wing that the assessee had received certain amount from shell companies working as an accommodation provider, reassessment could not be held unjustified.
In the case of Aradhna Estate (P) Ltd. [2018 (2) TMI 1534 - GUJARAT HIGH COURT] held that where reassessment proceedings were initiated on the basis of information received from Investigation Wing that the assessee had received certain amount from shell companies working as an accommodation entry provider, merely because these transaction were scrutinized by AO during original assessment , reassessment could not be held unjustified.
AO has in his possession a credible information that income chargeable to tax has escaped assessment hence proceedings u/s. 147 read with section 148 of the Act has been correctly initiated. Therefore, the contention and arguments raised by the learned counsel for the assessee are not sustainable in law. Accordingly, the validity of reopening of assessment is held to be sustainable in law, and therefore, upheld. Consequently, Ground No. 1 of the appeal is therefore, dismissed.
Estimation of income - bogus purchases - HELD THAT:- As decided in Deluxe Diamonds [2018 (4) TMI 1892 - ITAT SURAT] wherein the Tribunal has restricted the estimation of 5% of bogus phases and not of entire purchases disclosed in books of accounts by the assessee by following decision of Mayank Diamonds Pvt. Ltd [2014 (11) TMI 812 - GUJARAT HIGH COURT] Therefore, in the light of above facts and circumstances and considering the net profit of 5% as the average rate of the industry as observed by the Hon`ble Jurisdictional High Court and following the judicial pronouncements by the Co-ordinate Bench of Tribunals and the decision in the case of Mayank Diamonds Pvt. Ltd [2014 (11) TMI 812 - GUJARAT HIGH COURT] we deem it fit to restrict the addition to 5% of total bogus purchases Accordingly, addition @ 5% is sustained as against the addition sustained by the CIT (A) and balance is deleted. Accordingly, Ground of the assessee are therefore, partly allowed.
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2019 (7) TMI 2024
Suit for specific performance of agreement - scope of interference in second appeal in Punjab and Haryana, governed by Section 41 of the Punjab Act - Dhanwant Singh was the attorney to act on behalf of the Appellant or not.
Scope of interference in second appeal in Punjab and Haryana is governed by Section 41 of the Punjab Act - HELD THAT:- The effect of the Constitution Bench judgment in Pankajakshi [2016 (2) TMI 1063 - SUPREME COURT] is that in second appeal, the scope of interference within the Punjab and Haryana High Court would be the same as Code of Civil Procedure existed prior to 1976 amendment. The provisions of Section 41 of the Punjab Act and of Section 100 of the Code of Civil Procedure are pari materia.
In a judgment, reported in Kshitish Chandra Bose v. Commissioner of Ranchi [1981 (2) TMI 251 - SUPREME COURT] three Judges, of this Court held that the High Court has no jurisdiction to entertain second appeal on findings of fact even if it was erroneous.
The jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact.
Dhanwant Singh was power of attorney holder or not - HELD THAT:- The learned first appellate court has returned a finding that the Plaintiff was ready and willing to perform the contract and that the Defendants cannot take plea that they were not aware that Dhanwant Singh was power of attorney holder. Therefore, the findings recorded by the first appellate court cannot be said to be contrary to law which may confer jurisdiction on the High Court to interfere with the findings of fact recorded by the first appellate court.
In respect of financial capacity, it has come on record that the sale deeds were executed by Randhir Kaur prior to January 30, 2005 for making payment to the Defendants to execute the sale deed as per terms and conditions of the agreement. Therefore, the High Court was not within its jurisdiction to interfere in second appeal only for the reason that on the date of agreement, there was no specific power of attorney in favour of son of the Plaintiff, Dhanwant Singh.
The High Court's judgment is set aside and the decree of the lower appellate court is restored, granting the Appellant two months to pay the balance sale consideration. The Defendants were directed to execute the sale deed upon receiving the amount, failing which the Plaintiff could deposit the amount with the executing court and seek execution of the decree.
Appeal allowed.
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2019 (7) TMI 2023
Grant/release of full and final reward - HELD THAT:- It is pointed out that the Division Bench of this Court (of which the undersigned was a member) had rendered a judgment in RANNU DEVI AND ANOTHER VERSUS CHAIRMAN, CENTRAL BOARD OF EXCISE AND CUSTOMES AND OTHERS [2014 (6) TMI 518 - DELHI HIGH COURT] accepting the petitioners’ entitlement for a reward as informers under the relevant policy - This Court had also noted that the interim reward had already been granted by the department to some of its officers and had left it to the concerned authorities to exercise their discretion to pass appropriate orders regarding disbursement of interim award to the petitioners.
The grievance of the petitioners is that they are not aware of the status of the appeal, as no details have been provided. In view of the above, the respondents are directed to communicate the details of the appeal preferred by the assessee.
Petition allowed.
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2019 (7) TMI 2022
Violation of principle of natural justice - lack of cross examination provided - addition made on the basis of the information received from the Investigation Wing - HELD THAT:- Issue decided in favour of assessee as relying on case of Amitabh Bansal [2019 (2) TMI 1132 - ITAT DELHI] in which exactly similar issue has been dealt by the Tribunal and decided that when revenue strongly relies on statements of certain persons to implicate an assessee, principle of cross examination has to invariably followed if truth and justice needs to be found out, which has not been done in the case of the assessee.
Thus the issue of cross examination in dispute is squarely covered in favour of the assessee by the findings of the Tribunal, as reproduced above. Appeal of the assessee is allowed.
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2019 (7) TMI 2021
Application for recall of an ex-parte under Order IX Rule 13 of the Code of Civil Procedure, 1908 allowed - defendant's failure to lead the evidence or appear was not on account of his own default - suit for recovery of the price of goods sold to the respondent - HELD THAT:- The Trial Court has been persuaded by the defendant's argument that the defendant and his counsel were not in communication when the defendant was in judicial custody. However, the facts regarding his having applied for certified copies of the decree during this period, and having appeared for the defendant on atleast two occasions before the Supreme Court, belie the stand taken by the defendant.
It is also significant that, even during this period, an application was filed in March, 2016 for reopening the defendant's evidence, which had been closed in October, 2015. This application was filed by a pairokar of the defendant and shows that the defendant was in a position to participate in judicial proceedings even at that stage.
This is a fit case for exercise of jurisdiction under Article 227 of the Constitution, against the order of the Trial Court invoking its powers under Order IX Rule 13 of the CPC.
The impugned order is set aside - petition allowed.
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2019 (7) TMI 2020
Seeking grant of Regular Bail - offence punishable under Sections 132(1)(A) (B)(C)(D) of Central Goods and Services Tax Act, 2017 by Assistant Commissioner of State Tax, Unit 99, Jamnagar - HELD THAT:- Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
The applicant is ordered to be released on regular bail on fulfilment of conditions imposed - bail application allowed.
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2019 (7) TMI 2019
Validity of order passed by the Settlement Commission - Revenue submits that the Settlement Commission has wrongly allowed deductions u/s 80-IA (4) as the returns were filed after the period prescribed by law - HELD THAT:- It is observed that the issue of filing of returns after the date prescribed by law was taken up by the respondent before this Court in M/S DILIP BUILDCON LTD. VERSUS UNION OF INDIA & OTHERS [2016 (7) TMI 215 - MADHYA PRADESH HIGH COURT] allowed the petition setting aside the order passed by the Central Board of Direct Taxes and condoned the delay on the part of the respondent in filing returns.
Admittedly, the order passed by this Court [supra] has attained finality as the same has not been assailed or challenged by the petitioner before any higher Court. Thus the issue regarding delay in filing the return does not survive and has been finally settled in favour of the respondent.
In view of the order passed by this Court, the contention of the learned counsel for the petitioner that the Settlement Commission has wrongly allowed deductions under Section 80- IA (4) of the Act, without taking into consideration the aspect of delay, has no merit and does not survive for either being raised or adjudicated.
Also contention of revenue that the respondent was only involved in construction of roads as a contractor and, therefore, as he was only a works contractor, the benefit of the provisions relating to work undertaken for infrastructural development would not have been availed by the respondent and has wrongly been allowed by the Settlement Commission, is to be rejected as Settlement Commission has discussed these aspects extensively - The aforesaid finding in favour of the respondent, is a finding of fact and does not warrant any interference by this Court in writ proceedings.
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2019 (7) TMI 2018
Maintainability of appeal - monetary amount involved in the appeal - refund granted in CENVAT account - HELD THAT:- Inasmuch as the amount disputed by the Revenue is only to the extent of Rs.12.00 Lakhs, the Revenue’s appeal is covered by the Litigation Policy.
Accordingly the appeal dismissed as not maintainable.
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