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2020 (8) TMI 879
Benami Transactions - Scope of 2016 amendment Benami Transactions Act, 1988 - HELD THAT:- As in M/S. GANPATI DEALCOM PVT. LTD. THROUGH MANAGING DIRECTOR [2020 (3) TMI 899 - SUPREME COURT] has passed an interim order, whereby, the operation of the impugned order insofar as it holds that 2016 amendment of the Benami Transactions Act, 1988 was prospective in nature, was stayed.
Keeping in view the above order, it is ordered that in the meantime, operation of the impugned order passed by the learned Single Judge insofar as it holds that 2016 amendment Benami Transactions Act, 1988 was prospective in nature, shall remain stayed.
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2020 (8) TMI 878
Seeking order of injunction restraining the Corporate Debtor and/or its Officers and/or any third party from dealing/ alienating / transferring/ selling the assets of the Corporate Debtor during pendency of this application - time limitation - HELD THAT:- The OC has succeeded in placing all the relevant documents so as to comply with the requirements to be meted out u/s.9 (3) of the Code. Pressing for an order of injunction in a case of this nature does not by itself indicate that this application was filed by the OC for recovery of money found admittedly due to the OC. Therefore the submission that the intention on the side of the OC is not to initiate CIRP but to initiate recovery proceedings is devoid of any merit. The application therefore is perfectly maintainable u/s. 9 of the Code.
The admitted correspondence letters (Annexure- G) exchanged in between the OC and the CD, proves that the amount as claimed by the OC is due and payable by the CD. The claim of the OC is also not barred by limitation - the application is complete, there is no payment of unpaid operational debt despite receipt of the demand notice, and there is no disciplinary proceeding pending against the insolvency resolution professional.
Application admitted - moratorium declared.
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2020 (8) TMI 877
Rectification of mistake - Comparable selection - HELD THAT:- This Tribunal, inadvertently did not adjudicate comparability of following comparables with assessee with E-Zest Solutions and Softsole India Ltd - We accordingly, recall this ground for limited purposes of adjudicating comparability of E-Zest Solutions and Softsole India Ltd., with assessee.
Computation of deduction u/s 10A - CIT(A) upholding the action of the learned AO in not allowing deduction under section 10A of the Act on the enhanced export income determined as per Mutual Agreement between the Competent Authorities ("CA") - HELD THAT:- The argument of Ld.AR regarding export income determined as per MAP as accepted by assessee. However we note that there inadvertently a view has not been expressed in this regard.
We also note that corporate ground in revenue’s appeal though have been discussed, however since it is appearing under ground 15-16 of assessee’s appeal, conclusion needs to be also modified.
Accordingly, we recall impugned order for limited purposes of adjudicating Ground 15-16 in assessee’s appeal and Ground No.1 in revenue’s appeal under corporate tax issues. MP of assessee allowed.
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2020 (8) TMI 876
Scope of appeal - Case of appellant is that the point of maintainability which goes to the root of the appeal, had not been considered by the tribunal while passing orders from time to time - HELD THAT:- The interim order made on 21st February 2020 records that the appeal would be taken up on 13th July 2020 - the interest of justice would be subserved if the tribunal is directed to hear out the appeal as expeditiously as possible, preferably within three months from date by video link or any other mode.
The maintainability point shall be formally raised by the appellant by filing a supplementary affidavit before the tribunal by 7th September 2020, serving copies thereof on the respondents. The tribunal shall decide the point of maintainability as a preliminary issue - There cannot be indefinite continuance of the interim order. It is extended only till 31st December 2020 by which time the appeal should be disposed of by the tribunal.
Appeal disposed off.
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2020 (8) TMI 875
Seeking pre-arbitration interim relief - Sinister sequence of events - Section 9 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Section 9 of the 1996 Act contemplates "interim measures, etc.", by the Court. The expression "etc.", used at the end of a definition clause has been held, in several decisions, to be required to be interpreted noscitur a sociis and ejusdem generis (the latter principle applying where the words, preceding the word "etc.", constituted a genus, and the former principle applying more universally, in all cases), the words preceding it.
The Court, while exercising its power under Section 9 of the 1996 Act, has to be acutely conscious of the power, vested in the arbitrator/arbitral tribunal, by Section 17 of the same Act. A reading of Section 9, and Section 17, of the 1996 Act, reveals that they are identically worded. The "interim measures", which can be ordered by the arbitral tribunal, under Section 17, are the very same as those which can be ordered by the Court under Section 9. It is for this reason that sub-section (3) of Section 9 proscribes grant of interim measures, by the Court, consequent on constitution of the arbitral tribunal, save and except where the Court finds that circumstances exist, which may not render the remedy, under Section 17, to be efficacious. The Court, while exercising jurisdiction under Section 9, even at a pre-arbitration stage, cannot, therefore, usurp the jurisdiction which would, otherwise, be vested in the arbitrator, or the arbitral tribunal, yet to be constituted.
There is no whisper of any denial, in the aforesaid response, dated 8th July, 2020, from the petitioner to the Respondent, of the allegations that the petitioner had failed to maintain the Required Security Cover, and to liquidate all Outstanding Amounts by the final Redemption Date, i.e. 10th July, 2019. The fact of failure, on the part of the petitioner, to pay the Outstanding Amounts by the cutoff date of 10th July, 2019, stands, in fact, expressly acknowledged and admitted, by the petitioner, in its letter dated 30th June, 2020. The approach of the petitioner, in its response dated 8th July, 2020, was to maintain a studied silence thereon, and, instead, to allege "market manipulation" by KKR and its confederates. Even in the present petition, before this Court, the petitioner has remained completely silent, regarding the allegation of non-maintenance of the Required Security Cover, and of failing to repay all Outstanding Amounts, to the Debenture Holders, on or before 10th July, 2019. Prima facie, therefore, "Events of Default" had taken place, within the meaning of Clause 1.1.41 of the Debenture Trust Deeds, read with Clause 3.4 and S. No. 2 and 14 of the "Events of Default", enumerated in Schedule 3 to the Debenture Trust Deed.
The very contention, of the petitioner, that the price of the CGP shares had fallen owing to a misleading report, by Vaish & Co., too, is entirely presumptuous in nature, amounting to nothing more than speculation. There are myriad and manifold considerations, which operate to raise, or lower, the prices of stocks in the stock market. Fluctuation of the stock market, as is axiomatic in macroeconomic theory, is one of the most unpredictable of all unpredictable sciences - the dispute is entirely foreign to the issue of default, by the petitioner, to honour its obligations under the Debenture Trust Deeds, and the resultant right, of the Respondent to invoke the pledged shares, and sell them in the stock market, for realisation of the outstanding amounts.
The dispute, between the petitioner and the respondent, which could legitimately form the basis of an arbitral proceeding and, consequently, of the present proceedings under Section 9 of the 1996 Act, is the alleged infraction, by the petitioner, of the covenants of the Debenture Trust Deeds, and the right of the respondents, on that basis, to proceed against the shares, pledged by the petitioner by way of security. That dispute has nothing to do with good faith or bad faith. The "want of good faith", on the part of the respondents-as alleged by the petitioner-is in the manner in which the respondents allegedly depressed, artificially, the price of the CGP shares, before purchasing them in the open market - the prayers of the petitioner, in the present petition cannot, therefore, be granted, in exercise of the power conferred on this Court by Section 9 of the 1996 Act.
Petition dismissed.
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2020 (8) TMI 874
The Bench for hearing of the urgent matters through Video Conference (VC) - The matter is taken up on VC. Counsel for the Applicant and Mr. Sanjay Shorey, Director, Legal & Prosecution, (MCA), Mumbai and Mr. Manmohan Juneja, Regional Director (WR), Mumbai are present for the Respondent, Union of India.
On request, matter is adjourned to 31/08/2020 for the Applicant to furnish an intimation regarding his son’s admission to a particular Institute.
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2020 (8) TMI 873
Seeking to withdraw an amount from his Bank account over and above the limit fixed by this Tribunal - HELD THAT:- The Applicant is directed to furnish the Account Statements of all his Bank Accounts from 01.01.2019 till date, supported by an affidavit, for the consideration of the Bench which would be necessary while passing the order.
List this matter on 12.8.2020 for compliance and hearing of the Application.
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2020 (8) TMI 872
Maintainability of appeal - appeal rejected on the ground that the appeal of the petitioner is not qualified for admission, as the petitioner did not adhere to the provisions in Section 107 of AP GST Act, 2017 and Rule 108 of AP GST Rules, 2017 - HELD THAT:- Rule 108 of GST Rules deals with the appeal to the Appellate Authority. According to the said Rule, an appeal to the Appellate Authority under sub-section (1) of Section 107 shall be filed in FORM GST APL-1 along with the relevant documents, either electronically or otherwise, as may be notified by the Commissioner.
This writ petition is allowed and the impugned rejection order is set aside with a direction to the 2nd respondent to entertain the appeal of the petitioner and pass appropriate orders, in accordance with the procedure established by law.
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2020 (8) TMI 871
Grant of partial grant of award by the learned Arbitrator - Section 34 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The logic of the learned Arbitrator, as reflected from the award impugned herein, gives clear justification for the interest as awarded. It was entirely within the bounds of logic and reason to divide the award into several time-periods, being the pre-award, pendente lite and post-award periods, each of which would have to focus on interest on the sum due at that stage. As such, since the principal awarded carried interest for the pre-litigation period, there is no bar in considering the principal sum, for the purpose of interest pendente lite at the next stage to be the sum total of the pre-litigation interest added to the interest thereon. By similar logic, each of the stages entitled the award-holder to interest and the interest component, along with the principal, of each previous stage would be taken as the principal "sum" for the purpose of levying interest for the next.
There is no justification in finding fault with such ratio of the arbitrator in imposing interest, all the more since the scope of interference under Section 34 is extremely limited.
Corroborative evidence in support of the 5th RA Bill work being done - HELD THAT:- The same cannot hold water, since the RA Bill, by its very definition and nature, is a running account bill which is raised from time to time. The amount on the 1st to 4th bills were not claimed since the same was already credited to the account of the claimant. As such, the question of abandonment of work being a basis of refusal of such amount does not arise - The TDS certificate, read in conjunction with the RA bill itself, particularly in view of the clearance of the previous RA Bills, clearly weigh the preponderance of probability in favour of amount claimed on the 5th RA Bill being justifiable.
It is a fallacious argument that different yardsticks were followed in respect of refusal of the claims on the 1st to 4th RA bills while granting the 5th RA bill dues. This is for the simple reason that the 1st to 4th bill amounts were already credited by the respondent company to the claimant's account and there was no claim in the arbitral proceeding, as such, for the said amount. Any question of the claimant being not entitled to the previous bill dues would be superfluous in the context. The arbitrator sufficiently applied his mind in considering the relevant materials on record in conjunction with each other and was justified in granting the partial award, including interest, in the present case.
The stringent tests of Section 34(2) of the 1996 Act are not satisfied at all in the instant case to justify interference under the said provision - petition dismissed.
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2020 (8) TMI 870
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Non-Performing Asset (NPA) - existence of debt and dispute or not - time limitation - HELD THAT:- The Hon'ble Apex Court in B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta and Associates [2018 (10) TMI 777 - SUPREME COURT] where it was held that The right to sue therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.
This application is hopelessly time barred - Application dismissed.
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2020 (8) TMI 869
Detention of goods alongwith vehicle - E-way bill not present - levy of penalty u/s Central Goods and Services Tax Act, 2017 - HELD THAT:- Immediately after noticing that a single consignment of 80 plywood sheets transporting under two invoices without e-way bill and also identifying it as fraud transaction in order to avoid e-way bills which are mandatory documents as per the CGST Act, the 3rd respondent by following the procedure contemplated under Section 129 (3) of CGST Act has issued the notice to the petitioner.
Even the counsel for the petitioner also admits that the petitioner was transporting the goods without e-way bills, which will attract the provisions of Section 129 (1) (a), which ordains 100% penalty leviable on the value of goods, but pleads indulgence as imposing 100% penalty is on a higher side.
The order passed the 3rd respondent is legally sustainable & in accordance with law, which is not disputed the same warrants no interference by this Court - petition dismissed.
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2020 (8) TMI 868
Maintainability of application - it is submitted that Adjudicating Authority should have rejected the application under Section 9 if there was no material to substantiate the allegations in respect to debt and default and it was impermissible for Adjudicating Authority to direct the Appellant to file Profit and Loss Account and Balance Sheet of the company for the year 2011-12 to till date.
HELD THAT:- Issue notice upon Respondent. Appellant to provide mobile Nos./e-mail address of the Respondent. Notice be issued through e-mail or any other available mode. Requisites along with process fee be filed within two days.
List the appeal ‘for admission (after notice)’ on 27th August, 2020.
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2020 (8) TMI 867
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - threshold limit of minimum default - petition filed within time limitation or not - HELD THAT:- In the present case, it would be seen that the petition has been filed under Insolvency & Bankruptcy Code on 23.09.2019 which is within 3 years from the due date with regard to only one invoice i.e. Invoice No. 16011613002088, dated 09.09.2016, after considering the grace period of 20 days as agreed between the parties in terms of clause 2.4 of the Agreement dated 03.03.2016 as the right to sue under this invoice accrues on 29.09.2016. For the other two invoices for which the due date is 14.08.2016 and 21.08.2016 are clearly barred by limitation as the present petition has been filed on 23.09.2019. The invoice dated 09.09.2016 is only for an amount of ₹ 36,074/- and even if the interest @ 24% is added, the total amount comes to ₹ 61,288/-.
This is well below the threshold limit of minimum amount of default of ₹ 1,00,000/- for any petition under section 7 or 9 to be considered/ admitted by this Tribunal in terms of Section 4 of the Insolvency and Bankruptcy Code, 2016.
Petition dismissed.
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2020 (8) TMI 866
Decree of recovery of possession of the suit premises - Refusal of relief of possession especially when the Lower Appellate Court granted relief of mesne profits till delivery of possession - entitlement to a declaration in respect of half of the suit property overlooking the pleadings and the documents of title - substantial question of law or not - burden of proof - HELD THAT:- To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way - To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.
Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a second appeal cannot be entertained - Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis.
The First Appellate Court examined the evidence on record at length, and arrived at a reasoned conclusion, that the Appellant-Defendant was owner of a part of the suit premises and the Respondent-Plaintiff was owner of the other part of the suit premises. This finding is based on cogent and binding documents of title, including the registered deeds of conveyance by which the respective predecessors-in-interest of the Appellant-Defendant and Respondent-Plaintiff had acquired title over the suit premises. There was no erroneous inference from any proved fact. Nor had the burden of proof erroneously been shifted.
The second question of law, that is, the question of whether the First Appellate Court was right in holding that the plaintiff was entitled to a declaration of title in respect of half of the suit property, has, as observed above, been decided in favour of the Respondent Plaintiff, based on pleadings and evidence. The conclusion of the First Appellate Court, of the entitlement of the Respondent Plaintiff to a declaration in respect of his half share in the suit property does not warrant interference in a second appeal - The first question framed by the High Court, that is, the question of whether the Lower Court /Appellate Court was right in refusing the Respondent Plaintiff relief of possession, when the Appellate Court had granted mesne profits to the Respondent Plaintiff, is based on the erroneous factual premises that the First Appellate Court had granted mesne profits to the Respondent Plaintiff, which the First Appellate Court had not done.
The High Court erred in law in proceeding to allow possession to the Respondent-Plaintiff on the ground that the Appellant-Defendant had not taken the defence of adverse possession, ignoring the well established principle that the Plaintiff’s claim to reliefs is to be decided on the strength of the Plaintiff’s case and not the weakness, if any, in the opponent’s case - the Appellant-Defendant claimed the right of ownership of the suit property on the basis of a deed of conveyance, executed over 75 years ago. The Appellant- Defendant has claimed continuous possession since the year 1966 on the strength of a deed of release executed by his father. In other words, the Appellant-Defendant has claimed to be in possession of the suit premises, as owner, for almost 28 years prior to the institution of suit.
When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law.
The judgment and order of the High Court under appeal is set aside - Appeal allowed.
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2020 (8) TMI 865
Maintaiability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors - Existence of debt and dispute or not - Corporate Debtor deliberately failed and neglected to pay legally enforceable debt - service of demand notice - HELD THAT:- This Bench on examination, finds that the Demand Notice dated 10.09.2018 has been duly served through registered post by the Petitioner at 604, Kaushal point, 4th floor, behind Uday cinema, Ghatkopar (W), Mumbai. A proof of delivery by way of acknowledgment card has been attached by the Petitioner with his Petition. That it is the correct address for delivery of Demand Notice is borne out by the fact this address is mentioned as the Registered address of the Corporate Debtor company even in their Annual Report of 2018-2019. This Bench, therefore, has no doubt that the Demand Notice was duly served upon the Corporate Debtor and it chose not to contest it.
The Corporate Debtor has not been able to produce a single piece of paper which points towards it raising any dispute regarding the transactions, invoices or the amount payable.This Bench has no doubt that at least an amount of ₹ 90,49,843/- is a liability which is due from Risa International Limited and qualifies as Operational Debt both in terms of Section 3(11) and Section 5(21) of the IBC, 2016 - Application under sub-section (2) of Section 9 of I&B Code, 2016 filed by the Operational Creditor for initiation of CIRP in prescribed Form5, as per the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 is complete. The existing operational debt beyond the threshold limit against the Corporate Debtor and its default is also proved.
The application filed under section 9 of the Insolvency and Bankruptcy Code for initiation of corporate insolvency resolution process against the Corporate Debtor deserves to be admitted - Application admitted - moratorium declared.
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2020 (8) TMI 864
Levy of penalty - Rebate of duty - failure to issue a show cause notice for a proposal to impose penalty under Section 11AC of the Act - relevancy of documents sought for - principles of natural justice - HELD THAT:- In the present case, the petitioner had claimed and received rebate of duty by production of a Disclaimer Certificate issued by M/s.ERTP. On investigation by the department, it was found that production particulars submitted by M/s.ERTP to the department was less when compared to the actual production, since M/s.ERTP had suppressed the same. The issue therefore before the department, at that point of time, was as to whether M/s.ERTP suppressed the production during the relevant time and thereby, enabling the petitioner to claim rebate based on such suppressed production. The fact of suppression was revealed to the department through a private file seized by them, which contained details of processed fabrics, dispatched by M/s.ERTP during January 1997 to July 2000.
When the disclaimer certificate issued by M/s.ERTP was based on suppression of production details, it is for M/s.ERTP to substantiate the issue raised by the department in this regard. However, M/s.ERTP neither replied to the show cause notice nor participated in the hearing conducted by the department thereafter, but had rather accepted the contents of the documents relied upon by the department and admitted their guilt. Thus, the proceedings initiated against M/s.ERTP was never challenged and had become final - the petitioner instead of availing the opportunities to peruse and take copies of the documents relied upon by the department, had been insisting the department to give them the copies, even after the period stipulated in the show cause notice had expired.
Relevancy of the documents sought for by the petitioner for establishing his case and their bonafides in making such a request - HELD THAT:- This issue that requires to be answered by the petitioner was as to why the excess rebate amount claimed on the basis of suppressed production furnished by M/s.ERTP, should not be demanded from the petitioner. The proposal to recover was only on the basis of suppression of production details by the petitioner's processor namely M/s.ERTP. The documents relied upon by the department are the ones depicting the actual production and clearance of goods made by M/s.ERTP - there are no bona-fides on the part of the petitioner in insisting for the copies of documents which may not relevant or sufficient to enable them to give a reply.
The petitioner, had not only refrained from availing the opportunities given to them for perusing and taking copies of the documents, but had, after obtaining some of the copies, chosen to seek for further documents, which will not assist them in anyway for giving an effective reply to the show cause notice. Consequently, it can be held that there were reasonable opportunities extended to the petitioner and therefore, there is no violation of principles of natural justice in this regard - It is a settled proposition of law that whenever a penalty of such a nature is imposed, the same should be preceded with a prior notice of proposal. In the absence of the same, it would be appropriate to give an opportunity to the petitioner to put forth his objections with regard to the imposition of penalty under Section 11 AC of the Act alone. However, the petitioner shall not once again indulge in seeking for the documents relied upon by the department for the purpose of giving a reply to the proposal for penalty under Section 11AC, but, shall address this issue independently on its legal permissibility.
The revisions filed stands confirmed, except the portion of the order imposing penalty of ₹ 15,84,083/- under Section 11AC of the Central Excise Act, which is set aside - petition disposed off.
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2020 (8) TMI 863
Interpretation of law - admission and continuation in postgraduate medical degree courses - HELD THAT:- It is directed that the doctors who are already undergoing the postgraduate degree courses on the basis of being successful in the original writ petition filed in the High Court at Calcutta shall not be disturbed from pursuing the said course. The same direction shall also cover successful medical students who have already undertaken admission in postgraduate medical degree courses following the applicable admission process and are pursuing their postgraduate studies in the States of Gujarat, Haryana, Kerala, Maharashtra and Tamil Nadu.
Application disposed off.
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2020 (8) TMI 862
Scope of Limited scrutiny - expansion of the scope of limited scrutiny - unsecured loans from persons who have not filed their return of income - Sales consideration of property in ITR less than sales consideration reported in Form 26QB - applicability of sec 50C - assessee filed the first appeal before the Ld. CIT (A) wherein it was contended that provisions of Section 50C of the Act were not at all applicable as the assessee had not sold any asset being land or building or both but had sold a capital asset in the form of booking rights/right to allotment of flat only - HELD THAT:- It is an undisputed fact that the instant case was picked up for ‘Limited Scrutiny’ on two specific issues as reproduced - It is also an undisputed fact that neither any permission was sought by the AO to expand the scope of limited scrutiny in the instant case nor such permission was ever granted by the Ld. Pr.CIT/CIT in this case to inquire into any other issue during assessment proceedings. AO, while passing the assessment order, has not drawn any adverse inference against the assessee on either of the two issues on which the case was picked up for limited scrutiny under CASS.
The assessee had claimed TDS credit u/s 194IA and had declared sales consideration in his ITR. The rate of TDS during this period was 1% under Section 194IA of the Act and the amount of TDS which fully corresponds to the amount as declared by the assessee in his ITR. Thus, it cannot be said that the sales consideration declared in ITR is less than the one reported in FORM 26Q filed by buyer. Even the AO has not disputed this fact in the assessment order.
No adverse inference has been drawn by him against the assessee on the issue of unsecured loans. In our considered opinion, the findings of the Ld. CIT (A) on this issue are not correct and there was no valid basis for the AO to inquire into other issues while conducting a limited scrutiny, without taking the mandatory permission from the Ld. Pr.CIT. On these facts, when the CBDT instructions did not permit the AO to travel beyond the issues which are authorised by the Board in this regard under CASS, it is held that the addition made by the AO is beyond his jurisdiction.
AO has travelled beyond his jurisdiction when he has invoked the provisions of Section 50C, whereas he only had the jurisdiction to verify as to whether the sales consideration declared by the assesse in his ITR was less than the amount reflected in FORM 26QB. Once he was satisfied on this aspect, he ought not have travelled beyond this without obtaining the mandatory permission from the Ld. Pr.CIT to do so in terms of the above referred CBDT Instructions. The finding of the Ld. CIT (A) on this issue, therefore, cannot be upheld and the assessee’s first ground of appeal is allowed.
Possession of the flat was not offered by the builder as the project was still under construction as proved from the order of RERA dated 6-10-2017 brought on record by the assessee both before the AO and the Ld. CIT (A). Thus, it is a case of transfer of only the booking rights of a residential flat in an under construction project. As the assessee did not have possession of any immovable property, there was no question of sale of any land or building or both. On these facts, in our considered opinion, the provisions of section 50C are not applicable as the assessee has neither sold any land nor any building or both.
Since it has been held by us that the provisions of Section 50C of the Act are not applicable to the transaction of selling booking rights/rights to allotment of a flat, as has been done by the assessee in the instant case, the issue of making reference or not to the DVO becomes academic and is not adjudicated here. Appeal of the assessee is allowed.
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2020 (8) TMI 861
Provisional order of attachment by order - right cause before the wrong forum - sufficient cause for delay or not - Section 14 of the Limitation Act, 1963 - HELD THAT:- The expression "sufficient cause" has received the attention of this Court and the Hon'ble Apex Court in catena of judgments. The expression "sufficient cause" which also finds a place in Section 5 of the Limitation Act has been examined by the Hon'ble Apex Court and it has been consistently held that sufficient cause should receive liberal interpretation rather than pedantic approach. It is no doubt true that no litigant would stand to benefit by approaching the Courts belatedly. As such, wherever issue regarding delay would arise, there may be liberal approach while examining the plea of delay, it is not the length of delay, but it is the cause for delay which would be of paramount consideration. However long the delay might be, if the cause shown is sufficient or in the proximity of truth, such delay deserves to be condoned.
The writ petitions had been filed on 13.12.2016 and there is not even a whisper in the writ petitions as to what prevented the petitioners from challenging the order of Adjudicating Authority dated 14.09.2016. In other words, at every step, petitioners have been exhibiting laxity, negligence, carelessness and what is applicable to a rustic villager or a person who is not conversant with the worldly affairs, i.e., to plead ignorance about nuances of filing appeals, cannot be extended to the petitioners herein because first petitioner was a Group 'A' officer in Government of Karnataka and the second appellant is none other than his wife. In other words, they are fully conversant with the nuances of filing petitions and appeals as is evident from their acts in challenging orders passed by authorities in different forums at different stages.
There is no question of law much less substantial question of law as framed in the appeal memorandum which requires to be framed in these appeals to be adjudicated and answered - Appeal dismissed.
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2020 (8) TMI 860
Seeking grant of Bail - HELD THAT:- There is no dispute that the applicant-petitioner has already surrendered. The interim order/relief granted to the petitioner was passed without taking into account the fact that the petitioner was in custody on that day. Therefore, the order preventing any coercive steps is hereby recalled, as redundant.
The applicant-petitioner is given liberty to apply for bail before the appropriate court - Application disposed off.
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9911796707
