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Showing 381 to 400 of 1040 Records
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2011 (1) TMI 1203
Addition - Estimation of work in progress - when there is no evidence on record to indicate that any work was actually carried out for the remaining period of the relevant previous year after the period in respect of which the last bill had been raised, the addition made by the Assessing Officer is based purely on assumption that some work must have been carried out during the said period. The Tribunal was, therefore, justified in upholding the deletion of the addition. Besides, the conclusion arrived at by the Tribunal is based upon findings of fact recorded by it after appreciating the evidence on record. In the circumstances, in the absence of any infirmity being pointed out in the findings of fact recorded by the Tribunal, the impugned order being based solely on findings of fact does not give rise to any question of law so as to call for intervention by this Court.
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2011 (1) TMI 1202
Issues Involved:
1. Applicability of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) to foreign companies.
2. Jurisdiction of the Board for Industrial and Financial Reconstruction (BIFR) to entertain references regarding foreign companies.
3. Validity of the revival scheme (SS-09) sanctioned by BIFR for Baranagore Jute Company PLC (BJC).
4. Locus standi of the petitioners to challenge the BIFR proceedings and the sanctioned scheme.
5. Interpretation of the term 'company' under SICA and its application to foreign companies.
Detailed Analysis:
1. Applicability of SICA to Foreign Companies:
The primary issue was whether SICA's ambit and coverage extend to foreign companies operating in India. The petitioners and some respondents argued that SICA does not apply to foreign companies. They contended that the language of SICA is plain, clear, and unambiguous, and thus, no external aid is required for understanding its provisions. Conversely, other respondents argued for a broader interpretation, suggesting that SICA should cover foreign companies to protect Indian shareholders, creditors, and workers.
2. Jurisdiction of BIFR:
The BIFR's jurisdiction to entertain references regarding foreign companies was questioned. The court noted that an objection regarding the BIFR's jurisdiction had been raised but not properly considered. It was emphasized that jurisdictional facts must exist for a tribunal to assume jurisdiction. The court held that the BIFR usurped jurisdiction not conferred by law, as SICA does not apply to foreign companies.
3. Validity of the Revival Scheme (SS-09):
The revival scheme sanctioned by BIFR for BJC was challenged on the grounds of jurisdiction and applicability of SICA. The court noted that if SICA does not apply to foreign companies, all proceedings and orders, including SS-09, would be invalid. The court ultimately quashed the proceedings before the BIFR, including the sanctioned scheme SS-09.
4. Locus Standi of the Petitioners:
The court examined the locus standi of the petitioners, particularly the unsecured creditor who was relegated to a civil suit by the Company Court. The court held that the writ petitioner in W.P. No. 12412(W) of 2010 had no right to seek remedy before the Writ Court regarding BIFR proceedings, as they were not directly affected by the scheme. Thus, W.P. No. 12412(W) of 2010 was dismissed.
5. Interpretation of 'Company' under SICA:
The court extensively analyzed the definition of 'company' under SICA and the Companies Act. It was noted that SICA defines 'company' as per section 3 of the Companies Act, 1956, which does not include foreign companies. The court referred to various principles of statutory interpretation, emphasizing that the legislative intent should be gathered from the language used in the statute. The court concluded that the restrictive definition of 'company' in SICA does not extend to foreign companies, and thus, SICA does not apply to BJC, a foreign company.
Conclusion:
The court held that SICA does not apply to foreign companies, and consequently, the BIFR had no jurisdiction to entertain the reference regarding BJC. All proceedings before the BIFR, including the sanctioned scheme SS-09, were quashed. The writ petition W.P. No. 12412(W) of 2010 was dismissed due to lack of locus standi, while the other two writ petitions were allowed.
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2011 (1) TMI 1201
Appellant guilty under section 454(5) of the Companies Act, 1956 - failed to file Statement of Affairs without reasonable excuse, complaint was moved by the Official Liquidator – Held that:-It is patent that if there is reasonable excuse, a person may not be held guilty under section 454(5) of the Act.
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2011 (1) TMI 1200
Transfer of shares - Defendant No. 1, which is a company, was allotted 12,000 sq. meters of land by Rajasthan State Industrial Development and Investment Corporation Ltd. (RIICO) for setting up a hotel - In MOU it was mentioned that loan amount was for 50 per cent shares of defendant No. 1 - Plaintiffs allotted 10,000 shares to defendants by increasing authorised share capital - The plaintiffs have sought a declaration that defendants 2 & 3 are neither shareholders nor directors of defendant No. 1. They have also sought a direction to defendant Nos. 2 & 3 to deliver the original share certificates for the purpose of cancellation. The plaintiffs have also sought an injunction restraining defendants 2 & 3 from representing or holding out of themselves as shareholders or directors of defendant No. 1 or acting on its behalf besides injunction against interference by them in the affairs of defendant No. 1.
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2011 (1) TMI 1199
Issues Involved:
1. Enlargement of time to file the certified copy of the sanctioned scheme with the Registrar of Companies.
2. Presumption of abandonment due to delay in filing.
3. Applicability of Rule 7 and Rule 81 of the Companies (Court) Rules, 1959.
4. Jurisdiction and discretion of the court to extend time limits.
5. Impact of procedural lapses by legal representatives on litigants.
6. Precedents and legal principles supporting the extension of procedural timelines.
Issue-wise Detailed Analysis:
1. Enlargement of Time to File Certified Copy:
The appeal was directed against an order refusing to enlarge the time for filing the certified copy of the sanctioned scheme with the Registrar of Companies beyond the permitted time. The court initially declined to condone the delay, prompting a formal application on March 22, 2010.
2. Presumption of Abandonment:
The company court dismissed the application, stating, "Upon the applicants not filing the certified copy of the order sanctioning the scheme within a month of the date of receipt thereof, a presumption arose that these applicants had abandoned the same." The court held that the applicants failed to rebut this presumption in their application and supplementary affidavit.
3. Applicability of Rule 7 and Rule 81:
The appellant's counsel cited Rule 81, which mandates filing the certified copy within 14 days or within such time as fixed by the court. Rule 7 empowers the court to enlarge or abridge the time fixed by an order of the court. The court has the discretion to extend the time even after the expiration of the appointed period.
4. Jurisdiction and Discretion of the Court:
The appellant argued that the court has the power to extend the time stipulated by the order dated July 21, 2009, under Rule 7, and there is no legal presumption of abandonment after 30 days. The learned judge did not specify under what law such a presumption arises, and sections 115 to 117 of the Indian Evidence Act, 1872, do not support such a presumption.
5. Impact of Procedural Lapses by Legal Representatives:
The appellant contended that the delay was due to the inadvertence of the clerk of the advocate-on-record, who obtained photostat signed copies instead of certified copies. The court should consider that a party should not suffer due to the lapses of their legal representatives. The appellant relied on precedents like Rafiq v. Munshilal AIR 1981 SC 1400 and National Bank Ltd. v. Dulai Kanti Chowdhury.
6. Precedents and Legal Principles:
The appellant cited several decisions supporting the extension of procedural timelines:
- Zolba v. Keshao [2008] 11 SCC 769: The Supreme Court held that procedural rules are meant to advance justice, not defeat it.
- Sambhaji v. Gangabai [2008] 17 SCC 117: The court emphasized that procedural laws should aid justice and not obstruct it.
- Coal Marketing Co. of India (P.) Ltd., In re [1967] 37 Comp. Cas. 720 (Cal.): Supported the appellant's case under Rule 7.
- Mahanth Ram Das v. Ganga Das AIR 1961 SC 882: Stated that procedural orders are in terrorem and do not estop the court from considering subsequent events.
- Chinnamarkathian v. Ayyavoo AIR 1982 SC 137: Highlighted that conditional orders create a guarantee for obedience but do not remove the court's jurisdiction to act justly.
Judgment:
After considering the arguments and precedents, the court concluded that the litigant should not suffer due to the advocate's procedural lapses. The court emphasized that procedural laws are meant to serve justice and should not be rigidly applied to deny substantive rights. Consequently, the court allowed the appeal, granting an extension for filing the certified copy of the order sanctioning the scheme with the Registrar of Companies within three weeks. The order of the single judge was set aside, and the appeal was allowed upon payment of costs.
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2011 (1) TMI 1198
Default in repayment of loan - Pursuant to enforcement of 1997 Act, undertakings of IRBI were transferred to appellant-IIBIL with effect from 27-3-1997 - Appellant gave notice to respondent for repayment of loan and on its failure to pay filed an application before High Court under section 40 - High Court rejected that application holding that same was not maintainable as it was filed under provision of a repealed Act – Held that:- High Court in the impugned judgment referred to section 13 of the 1997 Act, but failed to notice the true import of sub-section (2)(b) of section 13. Further, the High Court completely overlooked the provisions of sub-section (4) of section 4 of the 1997 Act and as a result arrived at a conclusion that is patently erroneous and cannot be sustained for a moment. application filed by the appellant under section 40 of the 1984 Act for the enforcement of its claim against respondent No. 1 was perfectly maintainable before the High Court.
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2011 (1) TMI 1197
Non-supply of documents forming part of the ADG’s investigation report
Held that:- It is directed that upon the documents being provided to the Petitioners on or before 7-1-2011, the Petitioners will be granted two weeks’ time thereafter to file their objections to the ADG’s Investigation Report. In other words, the objections will be filed on or before 21-1-2011. The CCI will reschedule the hearing fixed for 6-1-2011 to 14-2-2011 or any other date as soon thereafter as may be convenient to the CCI. In view of the need for the proceedings before the CCI to be concluded expeditiously, as mandated by the SAIL’s case (2010 (9) TMI 215 - SUPREME COURT OF INDIA), it is directed that the said time schedule should be strictly adhered to by the parties.
With the above directions the writ petitions are disposed of. The pending applications are also disposed of.
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2011 (1) TMI 1196
Tax revision - right to use - Andhra Pradesh General Sales Tax Act, 1956 - assessees treated the hiring of transit mixers as contract of transport service, and not the transfer of the right to use the goods - vehicles are maintained by the petitioners. They appoint the drivers and fix their roster. The licences, permits and insurances are taken in their names by the petitioners, which they themselves renew. The transit mixers go to Grasim's batching plants in Miyapur and Nacharam, where they are loaded with RMC and then proceed to the construction sites of customers. The product carried is manufactured by Grasim, which is delivered to the customers and the customers pay the cost of the RMC to Grasim and the petitioners nowhere figure in the process of putting the property in transit mixers to economic use – Held that:- entire use in the property in goods is to be exclusively utilised for a period of 42 months by Grasim. The existence of goods is identified and the transit mixers operate and are used for the business of Grasim. Therefore, conclusively it leads to the only conclusion that the petitioners had transferred the right to use goods to Grasim, revision cases fail and dismissed
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2011 (1) TMI 1195
Writ petition – delay in filing appeal - appeal was rejected on the ground that the said appeal, filed with a delay of 528 days, could not be admitted – Held that:- Section 31(1) of the VAT Act, and its first proviso, prescribe a maximum period of 60 days (3,0+30) for an appeal tp be entertained by the appellate authority, and not beyond. As the right of appeal conferred by the VAT Act is subject to the restrictions prescribed therein, and as the delay in the present case of 528 days is far in excess of the maximum period of 60 days within which alone can the appellate authority entertain an appeal under section 31(1), the principle of ubi jus ibi remedium has no application, writ petition fails and is, accordingly, dismissed
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2011 (1) TMI 1194
Gift tax - retiring partner gets the value of his share in the partnership assets less his liabilities at the time of his retirement - Held that:- adjustment of rights between the retiring partner and the continuing partner in the assets of the partnership where there was an element of transfer, the interest by the retiring partners to the continuing partner is not excisable to gift tax, appeals are rejected [T.M. Louiz (2000 - TMI - 40240 - SUPREME Court - Income Tax)]
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2011 (1) TMI 1193
Exemption - sale of item under brand name “double mazza” in pouch having two parts, one containing “tobacco” and the other “pan masala” - According to the assessing authority, the disputed item consisted of two commodities, “zarda”, a Schedule I item, and “pan masala”, a Schedule IV item, poured in a single pouch marking two parts separately but the customer had no option to buy either the “zarda” or the “pan masala” alone, and therefore, the disputed item should be treated as taxable under Schedule IV - Held that:- definition of “pan masala” or “pan masala with tobacco”, the General Rules for Interpretation given in the First Schedule to the Central Excise Tariff Act, 1985 have to be followed. Therefore, the disputed item manufactured by the dealer containing two separate folders, one for “pan masala” and the other for “tobacco”, but not offered to sale separately, was really a “pan masala containing tobacco” classified in Chapter 24 under the Tariff Heading 2404.49 although it was presented as the unassembled or disassembled article which had the essential character of the complete or finished article. The Tribunal erred in holding that the sale price of “tobacco” included in the total price of the disputed item should merit exemption in terms of the entry 82 of Schedule 1 of the West Bengal Sales Tax Act, 1994.
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2011 (1) TMI 1192
Condonation of delay - short payment of the tax - interest on such delayed payment of tax – Held that:- application seeking condonation of delay should be rejected on the principle that the judgment of the competent Court had already attained a finality, no explanation for the delay of one year, no sufficient cause is shown by the petitioner to condone the delay, revision petitions are dismissed
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2011 (1) TMI 1191
Writ petition - contention that dealer not afforded opportunity to be heard not tenable - Held that:- Even after the request made by the officers the petitioner did not produce the account books. After receiving the notice issued by the second respondent, the petitioner sent objections requesting an opportunity of personal hearing before concluding the proceedings, and also produced the books of accounts. During the hearing the petitioner’s authorized representative was asked to explain the turnover relating to purchase of iron and steel from dealers situated outside the State. The authorized signatory then submitted a letter admitting that purchases of raw materials were not shown in the return, and requested to pass an order adding the incorporation value of 10 per cent on the purchase value. The letter belied the petitioner’s only contention that it was denied a personal hearing before the assessment order was passed. The assessment order did not suffer from any error much less a grave error apparent on the face of the record warranting issue of a writ of certiorari to quash the assessment order, writ petition fails and is accordingly dismissed
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2011 (1) TMI 1190
Writ petitions - respondent statedly suspended execution of the work, and kept it "on hold". The petitioner allegedly did not submit bills and, therefore, treated the value of the fibre cables laid as part of the work in progress and capitalised the same in the balance sheet. For the two assessment years, the petitioner filed returns declaring "nil" turnover - show-cause notice dated February 10, 2010 was issued proposing to levy tax under section 4(7)(a) of the VAT Act at four per cent and/or 12.5 per cent on the material used in executing the work of laying cables involved in the works contract entrusted by the second respondent to the petitioner – Held that:- Merely because the works are abandoned, or merely because a part of the material was used only by the employer, the works contractor cannot escape VAT liability. In this case, there is no dispute that the petitioner has fully or partially completed the work of laying fibre cables and, even if it is abandoned by the second respondent, the taxable event under section 4(7)(a) of the VAT Act does not vanish. We are, therefore, not able to accept the submission of the petitioners, writ petitions fail and are accordingly dismissed
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2011 (1) TMI 1189
Confiscation – penalty – Held that:- proposal for confiscation and imposition of penalty needs to be preceded by issuance of show-cause notice. If it is the case of the Revenue that the goods imported by the respondents herein were prohibited goods due to non-availability of IEC number and would in turn be liable for confiscation under Section 111(d) of the Customs Act, 1962, Revenue should have issued a show-cause notice under Section 124 of the Customs Act, 1962 proposing to confiscate the goods and for consequent actions like redemption fine and/or for imposition of penalty. In the absence of any such proposition, the learned Commissioner (Appeals) was correct in coming to the conclusion that there is no contravention of Section 111(d) of the Customs Act, 1962, appeals filed by the Revenue are rejected
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2011 (1) TMI 1188
Revision petition - additional sales tax under Section 5D of the Act - ground raised by the assessee was not considered by the Tribunal earlier while disposing of the appeal of the assessee, there are no fixed rules governing the scope of the jurisdiction either to review an order or correct mistakes or 'errors apparent' on the face of record, power of review is not confined only to the errors apparent on the face of the record. But in a case like the present one where the power to review is limited only to the cases where the review is sought on the discovery of a new fact, the power to rectify mistakes, no merit in the revision and it is dismissed.
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2011 (1) TMI 1187
Whether in a re-assessment completed under section 153A read with section 143 (1) of the Income-tax Act (hereinafter referred to as the Act for short), interest for short payment of advance tax is to be demanded for the period provided under section 234B(1) or section 234B(3) of the Act – Held that:- Department conducted search and made revised assessments under section 153A of the Act though by accepting returns of undisclosed income filed and by issuing proceedings under section 143(1) read with section 153A of the Act, assessments under section 153A are revised assessments and so much so, interest could be demanded for the period mentioned in section 234(B)(3) of the Act as held by the Tribunal, order of the Tribunal upheld and dismiss the Department appeals
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2011 (1) TMI 1186
Reopening of assement - reasons for reopening that the assessment was reopened in view of the decision of Hon‟ble Supreme Court in the case of Orissa State Warehousing Corporation (1999 - TMI - 5742 - SUPREME Court), wherein it was held that only the income derived from the letting-out of godowns or warehouses is exempted since according to the respondent a substantial part of business of the appellant was with regard to handling of Container Freight Stations which is a separate business, claim for exemption u/s 10 (29) of the Act was wrongly allowed - argument of the assessee that it was a case of change of opinion has not been addressed at all by the Tribunal which should have been gone into when it was so specifically raised by the assessee – Held that:- order of the Tribunal set aside and remit the case back to the Tribunal for fresh consideration limiting its discussion only on the aspect as to whether the reason given by the Assessing Officer for reopening of the reassessment was the aspect considered earlier in the original assessment proceedings and it would be a case of mere change of opinion or this aspect was not considered at all and, therefore provided proper ground for reopening the assessment, appeals stand disposed of
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2011 (1) TMI 1185
This writ petition is filed by the petitioner seeking for a direction to release the gold articles seized vide Exts.P1, P1(a) and P1(b) to the petitioner, accepting the security by way of deposit of title deeds of the property and declaration, without insisting for registration of Mortgage Deed. - whether the Mortgage Deed has to be registered or not - property offered is that of the brother of the petitioner who is a stranger to the transaction - Department is insisting for execution of a registered Mortgage Deed - counsel for the petitioner submitted that the matter has been pending for a long time, direction to the competent authority among the respondents to complete the process of assessment and issue final proceedings within a period of four months from today - writ petition is accordingly disposed of
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2011 (1) TMI 1184
Deduction under section 36(1)(viii) of the Income Tax Act - Assessing Officer disallowed the claim for the reason that appellant being a Scheduled Bank does not fall within the meaning of "financial corporation" referred to in section 36(1)(viii) of the Act – Held that:- assessee is not a financial corporation falling under section 36(1)(viii) of the Act, provisions of section 36(1)(viii) until it was amended by Finance Act, 2006 did not include Banking Companies governed by the provisions of the Banking Regulation Act, order of the Tribunal upheld and assessee's appeal dismissed
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