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Showing 21 to 40 of 958 Records
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2020 (8) TMI 939
Allowability of exemption u/s 11 and addition u/s 115BBC - assessment of trust - unanimous donation received - HELD THAT:- As assessee has not filed full details regarding the donors which means that some details were filed by the assessee regarding donors which is not considered as full details by CIT(A) but he has not pointed out the defects or the short comings in the details filed by the assessee. For all these years, we find that the particulars given are regarding dates of receipt of donation, receipt number, name and address of the donors and the amount of donation received. Thus such details are sufficient to decide this aspect of the matter as to whether the donation are anonymous or not. Hence, we feel it proper to restore this matter on this issue also back to the file of CIT(A) for fresh decision.
Thus respectfully following this tribunal order above, we restore both issues i.e. the issue about allowability of exemption u/s 11 in both years and about addition made by the AO u/s 115BBC by alleging that this donation is unanimous donation to CIT (A) for fresh decision with similar directions - Appeals of the assessee are partly allowed for statistical purposes.
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2020 (8) TMI 938
Seeking direction for quashing of summons - illegal search and seizure proceedings conducted by the Respondent ED - HELD THAT:- As sought, let the respondents no.2 and 3 file replies within two weeks from today with an advance copy thereof to the learned counsel for petitioner through email. Rejoinder thereto, if any, be also filed within two weeks thereafter.
List on 12.10.2020 and in the meanwhile, the petitioner is directed to join the investigation as and when directed to do so, however there shall be no coercive action against him by the Department till the next date of hearing.
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2020 (8) TMI 937
Seeking grant of default bail with the aid of 167(2)(a)(ii) of Cr.P.C - whether in computation of period of 90 days or 60 days as contemplated in Section 167(2)(a) of Cr.P.C, the day of remand is to be included or excluded? - HELD THAT:- The anterior period of custody with the police prior to the remand is no detention pursuant to an authorization issued from the Magistrate. The period of detention by the Magistrate runs only from the date of order of first remand. Sub-section (2) of Section 167 of the Cr.P.C pertain to the power of the Magistrate to remand an accused and there is no reason why the first day has to be excluded. The sub-section finds place in a provision which prescribe the procedure when investigation cannot be completed in 24 hours and distinct contingencies are carved out in sub-section (2); the first being the Magistrate authorizing the detention of the accused for a term not exceeding 15 days in the whole, secondly, when the Magistrate do not consider further detention necessary and thirdly, the Magistrate authorise the detention beyond period of 15 days if adequate grounds exists for doing so. However, there is no time stipulated as to extension of custody beyond period of 15 days with a maximum limit on the same. The accused can be in magisterial custody for unlimited point of time if he is not admitted to bail. In order to avoid the long incarceration of an accused for the mere reason that the investigation is being carried out in a leisurely manner, prompted the legislature to confer a right on the accused to be released on bail if he is prepared to do so and the investigation can still continue.
As regards the applicability of the provisions of Limitation Act, 1963 is concerned, which prescribe limitation in filing of suits, appeals and applications is concerned, the right of release being claimed as by way of default, there is no scope of applicability of the said enactment and in particular, Section 12 (1) and (2) since there is no decision/order, against which any Appeal/ Application is being preferred.
It is pertinent to note the recent three Judge bench decision of the Apex Court in case of S. Kasi Vs. State [2020 (6) TMI 727 - SUPREME COURT] where it is reiterated that the period u/s. 167 is inviolable and cannot be extended by the Supreme Court even while exercising its power under Article 142. The power of Magistrate authorizing detention of accused in custody by prescribing the maximum period, cannot be extended directly or indirectly by any Court with an exception contained in Special Statutes, which to that extent modify the applicability of Section 167 of the Code. Undue delay is not conducive to administration of criminal justice.
The impugned order passed by the Sessions Judge, excluding the first day of remand while computing the period of 60 days cannot be sustained and is liable to be set aside and the filing of the chargesheet by the Directorate of Enforcement on 13th July 2020, being after of 60 days, by excluding the day of remand i.e. 14th May 2020, make the applicants entitled for default bail. They deserve to be released on bail in light of the right conferred u/s. 167(2)(a) (ii), if they are prepared to and furnish the bail.
Bail application allowed.
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2020 (8) TMI 936
Maintainability of petition - petition dismissed only on the ground that the certified copy of the impugned order was not appended rather a photocopy of the impugned was appended - HELD THAT:- Counsel for the State has fairly conceded that the impugned order deserves to be set aside and the matter may be remanded back with a direction to the appellate authority to decide the appeal on merits rather than dismissing on the ground that the certified copy has not been appended though photocopy of the impugned order was attached which is not disputed to be incorrect.
The matter is remanded back to the appellate authority to decide the appeal on merits after taking into consideration the photocopy of the impugned order - impugned order set aside.
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2020 (8) TMI 935
Refund claim alongwith interest - non-compliance with the direction to decide the claim for aforesaid refund along with interest as early as possible practicably within a period of eight weeks - HELD THAT:- The respondent is directed to supply copies of the order dated 14th August, 2020 to the Court Masters as well as to the learned counsel for the petitioner during the course of day. The undertaking given by respondent with regard to payment to the petitioner is accepted by this Court and the respondent is held bound by the same.
The present writ petition is disposed of with liberty to the petitioner to challenge the order dated 14th August, 2020 refusing grant of interest to the petitioner, by filing appropriate proceedings in accordance with law. All rights and contentions of the parties are left open.
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2020 (8) TMI 934
Dishonour of Cheque - case is posted for marking of the documents from the respondent's side and for cross-examination after recording petitioner's statement under Section 313 of the Code of Criminal Procedure - HELD THAT:- There is a procedural irregularity inasmuch as the statement of the petitioner under Section 313 of Cr.P.C. is recorded much before the completion of the respondent's evidence. The Section 313 statement should have been after the respondent's evidence was completed including his cross-examination. This irregularity renders the entire proceeding from the stage of recording the accused’: plea vitiated. Therefore, neither of the impugned judgments can be sustained. The learned counsel relies upon a decision of this Court in Crl.R-P. No. 100241/2018 decided on 13th March 2019 in support of his submission that the impugned judgments will have to be set aside and the case remanded for re-trial from the stage of cross-examination of the respondent.
The case is restored to the Beard of VI JMPC, Belagavi, for re- trial commencing with the cross-examination of the respondent. The parties shall appear before the VI JMPC. Belagavi without further notice, on 14 of September 2020 - The revision petition is accordingly allowed.
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2020 (8) TMI 933
Judgment-debtor has the means to satisfy the money decree or not - Ascertainment of assets and income of the judgment-debtor - Form 16A of Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure - requirement of modifications in the judgements and formats of affidavit.
HELD THAT:- This Court is of the view that the directions issued by this Court in the judgment dated 05th December, 2019 and formats of the affidavits (Annexures A, B and C) formulated by this Court require modification, in order to make them more comprehensive. The judgment dated 05th December, 2019, is hereby modified.
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2020 (8) TMI 932
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - It was held by NCLAT that the Application filed under Section 7 by the Appellant / Financial Creditor should have been admitted by the Adjudicating Authority - HELD THAT:- There are no ground to interfere with the impugned order passed by the National Company Law Appellate Tribunal.
Appeal dismissed.
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2020 (8) TMI 931
Direction to Resolution Professional to produce details of assets of the 'Corporate Debtor' along with the valuation report by two valuers within four weeks - HELD THAT:- The 'Corporate Debtor' is not a going concern and there being no resolution plan, the 'Committee of Creditors' has unanimously decided to send the 'Corporate Debtor' into the liquidation. Once the application under Section 33 of the 'I&B Code' was moved before the Adjudicating Authority, in the given circumstances, it was left with no option but to order the liquidation of the 'Corporate Debtor'. Collecting of material in regard to the assets of the 'Corporate Debtor' and valuation reports etc. is not germane to the disposal of the application under Section 33 of the 'I&B Code'.
Since the impugned order suffers from legal infirmity, same cannot be supported, the same is set aside with direction to the Adjudicating Authority to dispose of the application of the 'Resolution Professional' under Section 33 of the 'I&B Code' within a week's time.
Appeal disposed off.
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2020 (8) TMI 930
Rejection of Application for grant of interim relief - condonation of delay of 404 days in filing the review petitions - sufficient cause for delay, exists or not - HELD THAT:- There is delay of 404 days in filing the review petitions for which no sufficient cause has been shown by leaned counsel for the petitioner.
The review petitions are dismissed both on the ground of delay as well as on merits.
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2020 (8) TMI 929
TP adjustment - APA for international transactions - arm’s length in terms of provisions of section 92C - assessee has adopted the transaction by transaction approach which was disregarded by the TPO by aggregating all transactions and applying TNMM method and made a total adjustment - DRP upheld the application of TNMM on the basis that the appellant had adopted TNMM in the previous years and margins of the comparable companies were recomputed - HELD THAT:- Tribunal, in a series of decisions, have consistently held that even if the year under dispute is not covered by APA, if the FAR is same, APA should be adopted for international transactions for the year under dispute.
Accordingly, we direct TPO to consider the FAR of the year under consideration with FAR of the years in APA. The assessee is directed to produce all necessary documents in compliance with APA and the AO/TPO is directed to decide the issue in light of APA in respect of international transactions in dispute in the present appeal and adopt the same methodology which has been directed to be adopted in the APA.
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2020 (8) TMI 928
TP Adjustment - comparable selection - CIT upholding action of the AO by selecting Heinz India Pvt. Ltd. as comparable - HELD THAT:- As in commercial world, the manufactures in order to earn higher turnover at times reduce their margin of profit. It means higher turnover lower the margin of the profit, therefore, merely because a comparable company as a higher turnover cannot be the ground for its exclusion. However, we find that Heinz India Ltd. cannot be a good comparable as it is engaged in a different set of products.
As mentioned elsewhere Heinz India manufactures products like drinks, Prickly Heat Power (Nycil), Tomato Ketchup and Ghee whereas the appellant is a manufacturer of chocolate and confectionaries goods. Being functionally dissimilar, Heinz India fails the test of functional similarity and deserves to be excluded. As relying on RAMPGREEN SOLUTIONS PVT LTD case [2015 (8) TMI 931 - DELHI HIGH COURT] we direct the AO / TPO to exclude Heinz India from the final set of comparables.
Adjustment on account of custom duty - HELD THAT:- The undisputed fact is that the assessee has imported 100% of its raw material whereas the average import in the case of the comparable companies is only 0.56% -As relying on TEREX INDIA PVT. LTD. AND (VICE-VERSA) [2019 (4) TMI 412 - ITAT DELHI] we direct the AO/TPO to allow the adjustment of custom duty.
Adjustment on account of capacity utilisation - As financial report of every company contains the details relating to the capacity utilisation and the same are available in the public domain also. The financial reports of the comparable companies used by the TPO do contain the capacity utilisation details and the same can be used for giving the benefit of under utilisation of capacity by the appellant company. We accordingly direct the AO /TPO to allow adjustment of capacity utilisation by comparing the data of the comparable companies in so far as capacity utilisation is concerned with that of the assessee. In alternate the assessee shall furnish the relevant data and the AO / TPO shall examine the same after giving a reasonable opportunity of being heard to the assessee.
Ad-hoc disallowance of miscellaneous expenses - HELD THAT:- Facts on record show that the AO has disallowed Rs.289800/-being 10% of the miscellaneous expenses incurred during the year and the CIT( has restricted the disallowance to Rs.50,000/-. FAA has already given substantial relief to the assessee and considering the smallness of the amount we decline to interfere. This ground is accordingly dismissed.
Set of brought forward losses - HELD THAT:- We find that in A.Y.2008-09 the assessed loss was determined by the AO. The same was brought forward in A.Y. 2009-10 at Rs.12204535/-. The AO is directed to allow set of brought forward losses as per the provisions of the law. In the result the appeal by the assessee is allowed in part for statistical purpose.
Treatment of provision for impairment of assets as non operation - HELD THAT:- A provision for impairment of assets is not a depreciation charge nor amortisation of fixed assets but it is a provision made to the carring amount of the fixed assets which is reversible in nature. Moreover section 92 (1) of the Act requires that any income arsing from an international transaction / allowance for any expenses shall be computed having regard to arms length price.
Impairment of assets cannot be related as international transaction of the assessee. Provision for impairment of assets is not regular business expenditure since it is not recurring in nature and is not related normal business operation and hence not in the nature of operation expenses, therefore, in our considered opinion the same cannot be treated as operating expenditure for the calculation of PLI of the assessee. We accordingly direct the AO / TPO to exclude provision of impairment of assets as operating expenditure.
Exclusion of Candico India Ltd. in the final set of comparables - only reason for rejecting it is a persistent loss making company - HELD THAT:- As relying on case of GOLDMAN SACHS (INDIA) SECURITIES PVT. LTD. [2016 (4) TMI 1136 - BOMBAY HIGH COURT] we direct the AO / TPO to include Candico India in the final set of comparables.
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2020 (8) TMI 927
TP Adjustment - benchmark the reimbursement of AMP expenditure by the AE - TPO on the basis of its TP study computed the average ratio of AMP/sales expenditure at 2.29% of comparables vis-à-vis 6.23% of the comparables and proceeded to compute the AMP expenditure - HELD THAT:- Tribunal in taxpayer’s own case in AY 2010-11 [2018 (12) TMI 111 - ITAT DELHI] which is exactly on the identical issue and adjustment on account of AMP expenditure made by the TPO has been found to be not sustainable on the ground that no international transactions held to be involved and that economic/legal ownership of the brand seeking compensation for AMP expenditure is inconsistent with the characterization and business model of the taxpayer and that adjustment on account of AMP expenses is not permissible within the scheme of “Chapter – X”.
Even otherwise, adjustment on account of AMP expenses is not permissible within the scheme of “Chapter - X” of the Act as has been held by the Hon’ble Delhi High Court in case of Maruti Suzuki India Ltd. vs. CIT [2015 (12) TMI 634 - DELHI HIGH COURT]
We are of the considered view that addition made by AO/DRP/TPO on account of AMP expenses is not sustainable and as such question framed is answered in the negative.
We set aside the orders of authorities below and restore the matter to the file of the Assessing Officer. We hold that as per the facts of the case and the legal position as of now and discussed above in this order, the adjustment made by the TPO/DRP/AO in respect of AMP expenses is not sustainable.
Adjustment made by the TPO/DRP/AO by applying the BLT on account of AMP expenses in the absence of international transactions between the taxpayer and AE is not sustainable in the eyes of law, hence ordered to be deleted. Decided in favour of assessee.
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2020 (8) TMI 926
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - deterioration of the value of the corporate debtor (CD) which is not in operation - Financial Creditors - HELD THAT:- It is certain that other than the alleged clarity regarding the total amount of claim due from the CD there is no other objections seen raised from the CD. Availing loan exceeding one crore rupees as per amended proviso to section 4 of the Code as well as default of the loan amount within the period of limitation and before the declaration of lockdown I.e before, 25.03.2020 is an admitted fact. The application has been filed in proper form. The applicants have produced several documents including loan sanction letter, agreements, final recall notice, Information Utility Certificate, CIBIL Report, etc. The applicants have also proposed the name of Interim Resolution Professional and filed the Written Communication dated 04/06/2020 given by the said Insolvency Professional. It seems that all the compliance u/s. 7 of the I & B Code has been made. Being satisfied that the CD has committed default, that default occurred prior to declaration of lockdown, that application is complete and there is no disciplinary proceedings against the proposed resolution professional, this application is fit for admission.
The default admittedly committed being falls under the exhalation to section 10-A inserted by notification dated 5th June, 2020, this application is also maintainable and liable to be admitted.
Application admitted - moratorium declared.
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2020 (8) TMI 925
TP Adjustment - AE’s transaction by adopting internal TNMM - HELD THAT:- We remand the matter back in the present two years also to AO/TPO to undertake fresh analysis to bench mark the AE’s transaction by adopting internal TNMM in preference to external TNMM and if the assessee is able to establish that he has undertaken similar international transaction with AE and non-AE in the same countries, external benchmarking will be done otherwise the AO/TPO will act in accordance with law. The entire TP issue in both the years is restored back to AO/TPO with the above directions for fresh decision by a speaking and reasoned order after affording reasonable opportunity of being heard to the assessee.
Disallowance out of club expenses - We find that learned CIT(A) has decided the issue in cryptic manner without any discussion in respect of any judicial pronouncement on this issue. The judgment as noted above is very much relevant for deciding this issue and since the entire TP issue is being remanded to the AO/TPO for a fresh decision, we feel it proper to remand this issue also to the file of AO for a fresh decision after considering all judicial pronouncements on this issue along with the judgments noted above after allowing reasonable opportunity of being heard to the assessee and the AO should pass a speaking and reasoned order on this issue also. Accordingly, ground 2 is allowed for statistical purposes in both years.
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2020 (8) TMI 924
Assessment u/s 144C - APA between the assessee and the CBDT with reference to the TP issues - HELD THAT:- As in view of the Unilateral Advanced Pricing Arrangement [APA] between the assessee and the CBDT with reference to the TP issues for AY 2011-12, the assessee withdrew its appeal with reference to the grounds challenging the Transfer Pricing [TP] addition. The Tribunal dismissed the appeal of assessee by its order [2020 (2) TMI 1688 - ITAT BANGALORE]. A copy of the APA has also been filed before us. In this appeal by the revenue, the grounds are with reference to TP issues which have been settled in the APA.
We are of the view that the appeal of the revenue has become infructuous and accordingly the same is dismissed as infructuous.
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2020 (8) TMI 923
TP Adjustment - comparable selection - turnover filter - assessee alleged exclusion RS software India Pvt. Ltd.on turnover filter, as this company has huge turnover of 2472.08% - HELD THAT:- We note that international transaction for year under consideration and asst. year 2010-11 [2015 (7) TMI 212 - ITAT BANGALORE] are similar. There is nothing on record placed by revenue that brings out any factual differences.
Respectfully following above view, we direct Ld.AO/TPO to exclude all these comparables, for having excessive turnover.
Genesis International Corp Ltd - This company renders mapping and Geo spatial services in the process of which it develops software. Genesys International Corporation Ltd., cannot be considered as a comparable company and the said company should be excluded from the final list of comparable companies.
Comparables in respect of software R & D segment - As entire issue should be restored to the file of Ld. AO/TPO for undertaking exercise afresh by selecting fresh set of comparable companies in respect of software R & D segment. Accordingly, we set aside the order passed by Ld. AO on this issue and restore the same to his file for examining the issue afresh in the light of discussions made supra.
We direct learnt Ld.TPO to undertake fresh search analysis having regards the above observations and the view taken by this (Tribunal) in assessee’s own case for immediately preceding and succeeding assessment years. Assessee is directed to file all relevant information/details to assist Ld. AO/TPO for determining arms length price of the transaction in accordance with law.
Appeal filed by assessee stands allowed for statistical purposes.
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2020 (8) TMI 922
Violation of principles of natural justice - issuance of personal hearing notice even prior to the receipt of the explanation - Non-application of mind - HELD THAT:- A reading of the provisions of Section 75(4) of the Tamil Nadu Goods and Service Tax Act 2017 shows that after the explanation is received from the writ petitioners, the authority must apply their mind and if they contemplate an adverse decision, then they must provide an opportunity of hearing. Therefore, issuing a personal hearing notice even prior to the receipt of the explanation cannot be said to be compliance of the aforesaid statutory requirements. That stage would arise only after the authority prima facie considers the explanation and contemplates an adverse decision.
Since there is a clear violation of the aforesaid requirement, the orders impugned in the writ petitions stand quashed and the writ petitions are allowed - The matters are remitted to the file of the respondents to pass orders afresh in accordance with law.
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2020 (8) TMI 921
Recovery of dues - priority of settlement of dues - Reluctance to transfer property - execution proceedings initiated by Recovery Officer (RO) pursuant to Decree/Recovery Certificate (RC) obtained by Punjab National Bank (PNB or Secured Creditor), inter alia on the ground that the erstwhile owner/borrower has to pay certain dues to the Central Excise Department.
Whether the dues of the secured creditor are to be paid in priority, by sale of secured assets specifically charged to it, vis-à-vis the arrears of outstanding dues under the Central Excise Act, 1944? - HELD THAT:- The undisputed legal position which emerges is that a conjoint reading of the relevant provisions of all the three enactments, i.e. Recovery Act, 1993, Securitisation Act, 2002 and Central Excise, 1944 would show that the secured creditor shall have a prior right of recovery from the sale of the secured assets, over and above the right of Central Excise.
Further, in UNITED BANK OF INDIA VERSUS ABHIJIT TEA CO. (P.) LTD. [2000 (9) TMI 928 - SUPREME COURT] and NAHAR INDUSTRIAL ENTERPRISES LTD. AND OTHERS VERSUS HONG KONG & SHANGHAI BANKING CORPORATION AND OTHERS [2009 (7) TMI 1193 - SUPREME COURT], Recovery Act, 1993 has been noticed to be a procedural Act, since, it precisely lays down, the manner and procedure of recovery of debts due to Banks and Financial Institutions. Since both Recovery Act, 1993 and Securitisation Act, 1993 are procedural in nature and complimentary to each other, therefore, the ratio of law, with regard to the applicability of principle of retroactive operation of the provisions of the Securitisation Act, 2002 would apply with equal force to the amendment under the Recovery Act, 1993 as well, and the above judgments would apply with equal force, to the amendment brought under the Recovery Act, 1993 as well.
There are no hesitation in concluding that the argument of the Central Excise, that the demands of Central Excise having been made/confirmed earlier than the aforesaid amendments under the aforesaid enactments which would have prospective operation in nature, and thus the demands under the Central Excise Act, 1944 would have precedence, is misplaced and hence is rejected.
It is well settled that, it is only when a charge is created by act of parties or exists by operation of law, upon the property, that question of priority arises to be determined. In the present case, the property in question had never been attached nor a charge was created by the Central Excise. Further, there is no provision which provides for creation of charge upon immovable property of assessee by operation of law. Therefore, Central Excise had no charge upon the property in question. Consequently, it had no locus to thwart/negate the entitlement of the secured creditor to sell the secured asset or deny the auction purchaser to enjoy natural fruits of the sale, upon which mortgage has been created in favour of secured creditor by creation of mortgage in terms of section 58 of the Transfer of Property Act, 1882, which mortgage has been upheld by DRT on issuance of Recovery Certificate - on account to conspicuous absence of charge or attachment upon the secured asset in favour of Central Excise in the manner so provided under the Act, 1944, it could not even have claimed priority of charge vis-à-vis the claim of the secured creditor.
Issue is answered in affirmative, and it is held, that the dues of the secured creditor are to be paid in priority by sale of secured assets specifically charged to it vis-à-vis the arrears of outstanding dues under the Central Excise Act, 1944.
Charges being claimed by various third parties, including Government and Semi-Government entities upon the property (secured asset) by enforcing their claim/s, of the dues recoverable from the erstwhile owner/borrower of the property - HELD THAT:- These are claimed by way of act of attachment being effected upon the secured asset, either pursuant-to dues being claimed under various enactments, or through the process of recovery where attachment orders are passed by the courts/authorities, on the application of 'the claimants or by operation of law. These encumbrances shall include, dues which are claimed, by third party entities like Central Excise, Government dues, Semi Government, dues of private individuals seeking attachment on the property of the defaulter/borrower etc. It would thus be fruitful to discuss these claims broadly by their respective classification.
It is to be noticed that the rights of the auction purchaser, on purchasing the secured asset, are virtually derivative rights from the secured creditor. Thus, if the auction purchaser has purchased the property from the secured creditor, it is the secured creditor which has exercised its right of priority to sell the secured asset to recover and appropriate its dues and hence the auction purchaser cannot be called upon to pay the dues of the previous owner/borrower.
While the banks proceed to sell the mortgaged property to recover the secured debts, it is noticed that due to attachments orders obtained by the agencies upon the secured asset/s, it does not get adequate buyers because of the encumbrance of attachment. If at all, it is able to sell it, the auction purchaser faces difficulty in getting the property transferred in its favour. Such attachments upon the property, which are obtained by the agencies or such other similarly placed entities, from the courts or arbitral tribunals are all unsecured attachments. Such unsecured debts/claims cannot have precedence over the secured debts by virtue of prior mortgage rights of having been created in favour of the secured creditor by the owner/mortgagor and consequently cannot be treated as an encumbrance either for the secured creditor or for the auction purchaser. The auction purchaser who has purchased such property from the secured creditor cannot be put to any disadvantageous position because of the such third party attachments.
Section 48 of the Act, 1882 would protect the right of the secured creditor and the also the subsequent rights created in favour of the auction purchaser purchasing the property from such secured creditor - an auction purchaser purchasing such property from the secured creditor would not be liable for the dues being claimed by such plaintiff nor can he interject right of enjoyment of the property purchased by the auction purchaser, merely on the basis of an attachment order for an unsecured debt. Even section 48 of the TP Act, 1882 would also protect the right of the secured creditor in whose favour prior mortgage rights exist and the consequent right of the auction purchaser from such attachments upon the secured asset.
Dues which emanate but of utilization of the property (secured asset) itself by the erstwhile occupier/owner/borrower, that are sought to be recovered from the auction purchaser - HELD THAT:- The most common claim is that of the Electricity Department against the auction purchaser towards unpaid bills of supply/use of electricity by the previous occupier/owner of the secured asset. Hence,' it requires to be dealt with specifically. It is to be noticed that it is consequent upon purchase of property in a public auction conducted by or on behalf of a secured creditor, that the auction purchaser realizes that previous electricity dues, consumed by the erstwhile owner has not been cleared due to which, re-connection or fresh electricity connection is denied. The Electricity Department, raises a demand and a condition, of clearance of previous dues, before the subsequent purchaser could claim a connection or a restoration thereof, which leads to an issue as to whether the auction -purchaser would be liable to clear the dues of the electricity consumed by the previous owner/occupier of the property.
As regards, other dues are concerned including transferable and recoverable statutory dues, pending installments due and payable to the allotting agency, Internal and External Development Charges payable to Development Authority, Extension fee/non-construction charges. Water and Sewerage dues etc., which are directly emanating out of the usage of the -property in question, would also be payable by the auction purchaser, where the properties are being sold on "as is where is basis".
The issue is answered in negative and it is held petitioner being successful auction purchaser, pursuant to an auction conducted by DRT under Recovery Act, 1993 would not be liable to pay the dues being claimed by Central Excise originally payable by the erstwhile owner/assessee/borrower.
Whether respondent No. 3 could have refused the transfer of the property in question in the name of the petitioner? - HELD THAT:- A perusal of the writ petition would reveal that petitioner submitted request letter dated 04.10.2019, vide diary No. 3921 to Respondent No. 3, pursuant to which, it issued the impugned letter dated 15.10.2019 (P-3), vide which transfer of property is sought to be resisted by Respondent No. 3 predominantly on five grounds. The first one being, that Urban Ceiling Officer Ludhiana vide letter dated 1275 dated 28.09.1987, has restricted the transfer of the property in question, and the decision in that regard is sought to be intimated to it. Petitioner has replied to the same, vide letter dated 16.10.2019 (P-4), stating that Urban Ceiling Law, is not applicable to the property in question. Since, Urban Land (Ceiling and Regulation) Act, 1976, was repealed by the Parliament by passing Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act No. 15 of 1999), therefore, the same cannot be an objection to resist the transfer of the property in favour of petitioner.
The respondent No. 3-GLADA is directed, that in case if it insists on compulsory registration in-spite of the aforesaid statutory provision, to decide the issue, after giving an opportunity of hearing to the petitioner and passing a speaking and reasoned order within four (04) weeks from the receipt of certified copy of the order, failing which the competent authority, shall be liable for proceedings for contempt under the Contempt of Courts Act, 1971.
Petition allowed.
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2020 (8) TMI 920
Admission of additional ground of appeal - Violation of provision of section 144C - whether Assessing Officer erred on facts and in law in directly passing final assessment order in the garb of issuing draft assessment order and raising a demand vide notice issued u/s 156 and initiating penalty proceedings vide notice issued u/s 274 r.w.s 271 - HELD THAT:- It would be pertinent to mention here that on identical set of facts the Tribunal in the case of Perfetti Van Melle (India) (P) Ltd. [2020 (8) TMI 273 - ITAT DELHI] has decided the issue in favour of the assessee and against the Revenue.
Thus we have no hesitation to hold that the proceedings culminated on 07.12.2018 when the demand notice was issued and served upon the assessee along with the penalty notice u/s 274 of the Act and therefore all the subsequent proceedings and orders become non est. The additional ground is accordingly allowed.
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9911796707
