|
Advanced Search Options
Case Laws
Showing 1 to 20 of 2118 Records
-
2019 (2) TMI 2127
Scope of “employee” under sub-section (9) of Section 2 of the Employees' State Insurance Act, 1948 - whether the Directors of respondent-Company, who are receiving remuneration, come within the purview of “employee” or not - HELD THAT:- It is noticed that in the present case, the appellant-Corporation in its impugned order dated 06.04.2005 specifically asserted that the Directors of the Company were paid remuneration at the rate of Rs. 3,000/- p.m. and they were falling within the definition of "employee" under the ESI Act and hence, contribution was payable in regard to the amount paid to them. Interestingly, even while seeking to challenge the aforesaid order dated 06.04.2005 by way of proceedings under Section 75 of the ESI Act, the respondent-Company chose not to lead any evidence before the Court. Hence, there was nothing on record to displace the facts asserted on behalf of the appellant-Corporation in its order dated 06.04.2005; rather the factual assertions in the said order remained uncontroverted. The order dated 06.04.2005 had been questioned by the respondent-Company only on the contention that the Directors do not fall within the category of "employee" but no attempt was made to show as to how and why the remuneration paid to its Directors would not fall within the purview of "wages" as per the meaning assigned by sub-section (22) of Section 2 of the ESI Act?
There are no hesitation in concluding that the High Court in the present case has been in error in assuming that the Director of a Company, who had been receiving remuneration for discharge of duties assigned to him, may not fall within the definition of an employee for the purpose of the ESI Act. There had been no reason to interfere with the order dated 06.04.2005 as issued by the appellant-Corporation.
Conclusion - The Directors receiving remuneration for their duties can be considered employees under the ESI Act.
The impugned orders are set-aside and the application filed by the respondent-Company under Section 75 of the ESI Act is dismissed - Appeal allowed.
-
2019 (2) TMI 2126
TP Adjustment - Business Process Outsourcing (BPO) services segment - margin which is to be calculated in respect of turnover of non-USA and UK countries which is 23% of the total turnover in the assessment year 2010-11 and 27% of the total turnover in the assessment year 2011-12 - HELD THAT:- We find that it is not in dispute that the nature of transaction which was entered into with associated enterprises situated in US and UK were same as associated enterprises situated in non-US and UK countries. The TPO has also applied same net profit margin rate for turnover of non-USA and UK countries as was applied for USA and UK countries. We, therefore, do not find any good reason why the margin rate agreed upon under MAP in respect of USA and UK business should not be applied for business transaction of other countries also. We have no material to hold that the net margin rate for the non-UK and USA countries will be different from the net margin rate of transactions with USA and UK.
We, therefore, set aside the orders of the lower authorities and direct the AO to adopt net margin @ 14.99% for the assessment year 2010-11 and 15.01% for the assessment year 2011-12. Therefore, the ground of appeal of the assessee is partly allowed.
Disallowance of Prior Period expenses - HELD THAT:- The issue of alleged prior period expenses is restored to the file of the AO for examining/verifying the claim of the assessee and allowing the same if it is found that the payments have crystallized in the year under appeal.
Deduction u/s 10A - Respectfully following the decision of Genpact India [2011 (11) TMI 119 - DELHI HIGH COURT] we set aside of the orders of lower authorities and direct the AO to compute deduction u/s 10A of the Act after deducting the Telecommunication expenses both from export turnover and total turnover of the assessee. Thus, this ground of appeal of the assessee is allowed.
TDS claim credit - Restore this issue back to the file of the Assessing Officer for allowing credit for TDS claimed by the assessee in the return of income after verification as per law.
Classification of gain - gain on buyback of shares is to be taxed under the head capital gain OR deemed dividend u/s 2(22)(d) - HELD THAT:- We hold that the receipt of buyback of share cannot be taxed as deemed dividend u/s 2(22)(d) of the Act. However, same has to be taxed under the head capital gains. Accordingly, we direct the AO to verify as to whether the assessee has shown the amount under the head capital gains. With these directions, the ground of appeal of the revenue is dismissed.
-
2019 (2) TMI 2125
Doctrine of merger - Withdrawal of the Sugar Industry Promotion Policy, 2004 by the State Government of Uttar Pradesh and the subsequent denial of benefits to the petitioners who had acted upon the policy - breach of principle of Promissory Estoppel, Natural Justice and Legitimate Expectation - benefits in the form of exemptions/reimbursements/capital subsidy as promised by the State Government under the Policy could have been suddenly withdrawn by the State Government despite the fact that the petitioners had already made large investments pursuant to the promise - rejection of application for declaration for eligibility of those petitioners who had completed their projects at either level on or before 31.03.2008 on the ground that the Policy had been withdrawn on 04.06.2007 - delay in payment to the cane farmers could be a justification for revocation of the Policy or not - revocation of incentive scheme for no valid reasons - incentives unequivocally promised and exemptions granted could have been taken back without there being any overwhelming public interest or not.
HELD THAT:- Most of the issues would stand answered by the judgment of this Court in the case of Bajaj Hindustan Limited Vs. State of Uttar Pradesh [2014 (10) TMI 561 - ALLAHABAD HIGH COURT]. The said decision of this Court has merged with the Order dated 07.03.2018 of the Supreme Court in Civil Appeal Nos. 7121-7122 and C.A. Nos 7121-7122 [2018 (8) TMI 215 - SC ORDER]. The Order of the Supreme Court came to be passed in Civil Appeals after grant of leave and therefore the Judgment dated 17.09.2014 of this Court stood merged with the Order of the Supreme Court.
As recently held by the Five Judge Bench of this Court in the case of ‘Dr. Archana Mishra and others Versus State of U.P. and others [2018 (10) TMI 2048 - ALLAHABAD HIGH COURT], once the decision of this Court merged in the Order of the Supreme Court, it would not be legally permissible for this Court to consider the correctness or otherwise of the decision of this Court. This Court is thus bound by the Order of the Supreme Court dated 07.03.2018 which now included Order dated 17.09.2014 passed in case of Bajaj Hindustan Limited in writ petitions nos. 1853 and 1854.
In the instant case, the petitioners made huge investment in the State of U.P. under a bona fide belief that the State Government shall grant all the benefits promised under the Policy. There is no reason why the State Government should not be compelled to make good such promise like any other individual.
As far as the issue of payment of cane dues to the farmers is concerned, it is to be noted that this condition was not contained in the Policy as originally announced on 24th August 3004 but was brought in by subsequent amendment dated 17.12.2004 to the Policy whereby it was stipulated that ‘various concessions/exemptions would be available only when the company/unit has paid the entire cane price including arrears. It is clear from the Policy documents that an application for being declared Eligible had to be accompanied with a certificate from the Cane Commissioner to the effect that the entire cane price has been paid. Without such a certificate from the Cane commissioner, the application for declaring eligibility would not have been entertained. It is therefore no brainer that the ‘Eligibility Certificate’ issued to some of the petitioners by the State Government would be only after the applicant had produced such a certificate.
The concept of ‘timely payment’ or ‘always in compliance of timely payment’ of cane price payment throughout the life time of the Policy was not envisaged in the original or the amended Policy and the only requirement was that the payment of entire cane price including arrears, if any, be made before availing the benefits under the Policy.
It is nobody’s case that those petitioners who had been granted the ‘Eligibility Certificate’ did not make the full payment of entire cane price even if there was some delay in making such payment to the farmers. It would be interesting to make a reference to ‘Co-generation and Distillery Promotion Policy-2013’ attached by the State Government to its affidavit dated 28.11.2017 filed in this Court, which stipulated that the benefits under that policy would be available only if the company/unit has made ‘timely payment’ of entire cane price. If ‘timely payment’ was so critical element of the Policy, State Government would have employed similar language as used in the case of Distillery Policy of 2013. The contention of the delay in ‘timely payment’ of cane price is therefore clearly an afterthought on the part of the State.
There is no quarrel with the legal proposition that the State is empowered to withdraw a Policy but if such Policy contained some unequivocal promise and assurance and someone has altered his position acting on such promise then such withdrawal shall have to pass the test of promissory estopple. There is also no quarrel with the proposition that promissory estopple must yield to overriding public interest except that the present case does not contain any such overriding public interest.
Conclusion - The petitioners are entitled for consideration of all the benefits in the form of exemptions/ remission/reimbursements as per the Sugar Industry Promotion Policy-2004 and various Notifications issued thereunder from time to time for the entire period of the validity of the Policy. The withdrawal of the Policy was arbitrary, unreasonable, and in violation of the principles of promissory estoppel, natural justice, and legitimate expectation.
Petition allowed.
-
2019 (2) TMI 2124
Juvenile at the time of the commission of the offence on 14.09.2000 - benefits of the Juvenile Justice (Care and Protection of Children) Act, 2000 - Whether such report may be given precedence over the contrary view taken by the High Court, so that the benefit of the 2000 Act may be given to the Appellant? - HELD THAT:- It is by now well-settled, as was held in Hari Ram v. State of Rajasthan, (2009) 13 SCC 211, that in light of Sections 2(k), 2(l), 7A read with Section 20 of the 2000 Act as amended in 2006, a juvenile who had not completed eighteen years on the date of commission of the offence is entitled to the benefit of the 2000 Act.
The learned Registrar has duly affirmed the veracity and bona fide nature of the certificates adduced by the schools attended by the Appellant. At the same time, since Rule 12(3)(a)(ii) specifically mentions that the certificate showing the date of birth of the person shall be from the school first attended (other than a play school), we find that the certificate issued and school records maintained by the Dayanand Arya Middle School, Sohna, where the Appellant studied for four years till class V, as duly affirmed through the examination of a witness from such school, is sufficient to satisfy the requirement of Clause (a)(ii) of Rule 12(3). Of course, it goes without saying that the certificate issued by the Government Senior Secondary School (Boys), Sohna and the accompanying school records serve to corroborate the veracity of the records furnished by the former school. It would not be out of place to highlight here that the findings in the inquiry report have also not been controverted by the State.
Conclusion - It has been conclusively established that the date of birth of the Appellant was 12.07.1984 and as such he was aged 16 years, 2 months and 2 days at the time of commission of the offence dated 14.09.2000. In such circumstances, we do not have any doubt that the inquiry conducted by the Registrar (Judicial) upon the direction of this Court in the instant matter amounts to an inquiry conducted by this Court itself, and is conclusive proof of the age of the Appellant as provided in Rule 12(3) of the 2007 Rules. As the Appellant satisfies the requirement of Sections 2(k) and 2(l) of the 2000 Act, the said Act is applicable to him in full force in light of Section 7A and Section 20.
The order of the High Court affirming the conviction and sentence of the Appellant Under Section 376(2)(g) of the Indian Penal Code is set aside - Appeal allowed.
-
2019 (2) TMI 2123
Condonation of delay in filing an appeal, when the delay is attributed to the negligence of the applicant's advocate - HELD THAT:- In N BALAKRISHNAN VERSUS M. KRISHNAMURTHY [1998 (9) TMI 602 - SUPREME COURT], a two Judge Bench of the Hon'ble Apex Court held that the order of the High Court in revision setting aside the order of the Trial Court condoning the delay of 883 days in filing the application for the condonation of delay due to the failure of the Advocate to inform the appellant as well as his failure to take action was not proper and that the Court should compensate the opposite party in such cases more so where the appellant had secured the compensation from the delinquent Advocate. In the brief facts the suit filed by the respondent for the declaration of title and ancillary reliefs was decreed ex-parte on 28/10/1991. The Appellant, on coming to know of the decree moved an application to set it aside which came to be dismissed for default on 17/02/1993.
Coming to the facts of the case it has been tried to be contended on behalf of the applicants that on account of the lapse of the Advocate then appearing on their behalf, the applicants should not suffer and as a large tracts of Government land was involved which would cause much loss to the exchequer in case the application for the condonation of delay was not allowed. However, having considering the judgment in N. Balakrishnan and Salil Dutta merely shifting the burden on the Advocate then appearing for the applicants by itself would not be a ground to condone the delay which is substantial. The applicant ought to have been more diligent in pursuing the matter and merely canvassing that there was a neglect on the part of the then Government Advocate even after the Court had granted umpteen opportunities to take steps cannot be countenanced.
It is apparent from the tenor of the application moved on behalf of the applicants that there was neglect on the part of the then Government Advocate in pursuing the matter which resulted in its dismissal and that too after the Court had granted umpteen opportunities to the applicants to take steps to serve the unserved respondents. The applicants had tried to canvass a ground that the order dismissing the proceeding came to their notice only on making enquiries somewhere in December 2015 i.e. more than 15 months after the order came to be passed dismissing the case for non-prosecution. No genuine or justifiable grounds have been set out - Although it has been brought to my notice that process fees were paid, nonetheless there was negligence on the part of the applicants not the pursue the matter further and when a learned Single Judge of this Court was constrained to grant a last opportunity and thereafter to identify the matter for dismissal and ultimately dismissed the same for non-prosecution and default on 3rd September, 2014.
No grounds have been made out for the condonation of delay and in view thereof, the application is accordingly dismissed.
-
2019 (2) TMI 2122
Anti-competitive action - collusive bid rigging - whether the CCI erred in undertaking an exercise itself to determine whether or not the allegation of inter-alia collusive bid rigging leveled against Respondent No. 2 & 3 has been established without ordering an investigation in terms of Section 26(1) of the Competition Act, 2002?
HELD THAT:- CCI is empowered to inquire into any alleged contravention of provisions contained in Section 3(1) or Section 4(1) of the Competition Act, 2002 on its own motion or on receipt of an information from any person, consumers or their associations or trade associations or upon a reference made to it by the Central Government, State Government or Statutory Authority. Section 26 of the Act provides that upon receipt of a reference or upon its own knowledge or upon information received from any person, the Commission, if of opinion that there exists a prima facie case, shall direct the Director General (DG) to cause an investigation to be made into the matter. On a bare reading of this provision, it is abundantly clear that causing of investigation to be conducted by Director General is entirely dependent on existence of a prima facie case warranting such investigation. Unless the Commission is satisfied that a prima facie case exists, the Informant (where information has been received from any person) has no vested right to seek investigation into alleged contravention of provisions Section 3(1) or Section 4(1) of the Act.
The Appellant – Informant who was neither an OEM nor an SI and was not in the fray for bidding qua the tender in question raised competition concerns on the basis of wild allegations without any substance. The circumstances projected by him, in absence of any incriminating evidence, would not justify drawing inference of complicity of Respondents 2 and 3 in bid rigging/ collusive bidding. The Appellant-Informant has miserably failed to make out a prima facie case warranting causing of an investigation by DG. The impugned order passed by the Commission is based on application of mind and does not suffer from any legal infirmity.
Conclusion - The Appellant-Informant has miserably failed to make out a prima facie case warranting causing of an investigation by DG. The impugned order passed by the Commission is based on application of mind and does not suffer from any legal infirmity.
Appeal dismissed.
-
2019 (2) TMI 2121
Complaint to the National Stock Exchange against the petitioner - petitioner is carrying out activities of trading in shares, and is also registered stock broker and respondent no. 2 registered himself as a client of the petitioner and started buying and selling of the shares through petitioner’s Authorised Person -petitioner had sold the shares worth Rs. 10.67 Crores, generated a loss of Rs. 9.08 Crores and assured payment of 1% was not paid.
observation/opinion of the Investor Grievance Redressal Committee wherein petitioner has not kept the margin money over and above the locked amount and it will not be able to trade - whether such an opinion is amenable to be examined under the writ jurisdiction of this Court. Even assuming that it is so amenable, obviously we cannot examine it exercising appellate powers.
HED THAT:- In the present case, the Committee has considered the case put up by both the petitioner as well as the respondent no.2 and has found that the trading member was aware of the arrangement. The Committee consists of experts in the trade. After giving an opportunity to both sides, the Committee has given a detail opinion based on their expertise and the material that the claim made against the petitioner is an admissible claim. They have found, based on their experience, that it is not possible that the petitioner, an experienced trader, would not know of the transaction. It is not possible for us to further dissect this opinion to hold that the opinion is incorrect. The Committee members are fully aware as to how day to day transactions are carried out on the Stock Exchange.
The petitioner being a member of the Stock Exchange is covered by the Circular of 2013. This methodology is operating for almost six years now. We find no special circumstances to make an exception from the procedure laid down, which is designed to secure confidence in the trading of the Stock Exchange.
The terminals of the petitioner would be shut down only if the petitioner does not furnish the requisite margin amount. The hearing was adjourned twice for the petitioner to inform about security for the blocked amount. The petitioner offered to give a security of a residential flat of his family members, without original title deeds.
Thereafter, during the course of arguments, the petitioner stated that 50% of the amount would be generated within six weeks. Dr. Saraf is correct in pointing out that the Stock Exchange cannot sell the immovable properties, that to recover the amount payable to the Complainant. That is not the role of the Stock Exchange. Shut down of terminals is not an order passed by the SEBI, but a situation created by not securing the amount and the margin money.
We are not inclined to exercise our extraordinary writ jurisdiction. The Writ Petition is accordingly rejected.
-
2019 (2) TMI 2120
Addition being entire sale receipts deposited in cash in bank account by treating as unexplained income - As argued the said receipts are not income but are the sale proceeds hence, the said addition should have been deleted - HELD THAT:- The assessee has failed to produce necessary documentary evidence before the lower authorities to substantiate its claim that cash deposits represented the sale proceeds of its business income. However, on the same time, the entire cash deposits could not be subjected to tax as the assessee explanation of the assessee is unsatisfactory.
The learned Counsel fairly conceded that only peak credit at Rs. 2, 56, 590 as appearing as on 18. 03. 2008 can be considered for addition as the assessee has failed to explain the cash deposits appearing in the bank accounts maintained by him with various banks.
AO is directed to consider the peak credits of Rs.2, 56, 590 for additions as against the entire cash deposits of Rs. 19, 90 400 appearing in various bank accounts. Our above view is also supported by decision of President Industries [1999 (4) TMI 8 - GUJARAT HIGH COURT] wherein it was held that in the absence of any finding of the material that there was suppression of investment in acquiring the goods which are subject of undisclosed sales, Tribunal was justified in holding that entire undisclosed sales could not be treated as income of the assessee but addition could be made only to the extent of estimated profits and embedded in sales for which the net profit rate was adopted, no referable question of law arises.
Similarly, in the case of Principal Commissioner of Income Tax v. Shri Inderjeet Zandusingh Tomar [2016 (1) TMI 182 - GUJARAT HIGH COURT] has observed that “in our opinion, the CIT(A) and Tribunal committed no error. There was nothing with the Department to suggest that entire deposit of Rs. 2.46 crores represents the income of the assessee. CIT(A) instead of adding 1% of Rs. 2.46 crores adopted peak credit of theory, which was also upheld by the Tribunal - this ground of appeal is partly allowed.
Estimation of profit element in respect of sale proceeds of shares - We find that the profit element in share transaction is not static and fluctuating on the market conditions. Therefore, taking a holistic view , we are of the considered opinion that the share transaction profit be restricted to 10% which worked out to Rs. 1,37,730, hence, addition is restricted to this extent and balance is deleted. This ground of appeal is therefore, partly allowed.
-
2019 (2) TMI 2119
Penalty orders in the name of dead person - HELD THAT:- As relying on SHRI M. HEMANATHAN [2016 (4) TMI 258 - MADRAS HIGH COURT] we hold that the penalty proceedings initiated against the dead person was not enforceable in law and thus the penalty imposed u/s 271(1)(c) in pursuance of such invalid initiation is not sustainable and hence delete the penalty. Thus, we allow the additional ground raised by the assessee.
-
2019 (2) TMI 2118
Deduction u/s 80HHC and 80HHD - Chapter VIA double deduction - whether an assessee is entitled to claim deductions under divers provisions in respect of the same income, if the assessee qualifies under the various provisions
As decided by HC 2019 (2) TMI 1328 - CALCUTTA HIGH COURT] questions pertaining to Sections 80HHC and 80HHD are concerned, they are covered by a judgment of this Court rendered in the same assessee’s case and reported in EIH Ltd. v. Commissioner of Income-Tax [2011 (8) TMI 411 - CALCUTTA HIGH COURT]. The two provisions involved are Sections 80HHD and 80-IA of the Act. A previous view of the Supreme Court was that if the assessee is entitled to claim on more than one head, the assessee must be left free to do so, subject to the deduction not being more than the income earned under such head. However, the same issue has been referred to a larger Bench for reconsideration in the judgment ACIT vs. Micro Labs Ltd [2015 (12) TMI 708 - SUPREME COURT]
HELD THAT:- UPON hearing the counsel the Court made the following
Delay condoned.
Leave granted.
-
2019 (2) TMI 2117
Reopening of assessment u/s 147 - reasons to believe OR Reasons to suspect - HELD THAT:- As in the instant case, the initiations of proceedings u/s 147 of the Act are based upon no evidence and/or uncorroborative material. AO further failed to establish the nexus that the investment made by the AO represented assessee's income. In our considered view, the competent authority is required to indicate some link or nexus while recording reasons for belief that the consideration amount of property acquired is chargeable to tax and has escaped the assessment, in this case the proceedings u/s 147 itself are vague, hence in any sense cannot survive and therefore we do not have any hesitation to held that the CIT(A) was absolutely unjustified in upholding the reopening of the assessment u/s 147 of the Act, without appreciating the facts of the case, explanation submitted and evidences places on record judiciously. Hence on this ground also, the assessment proceeding/order is liable to be quashed.
Method of serving notice - non serving assessee notice at his proper address - as argued due to non -possibility of service of notice through ordinary means, decided to serve through affixture at the last known address of the assessee - HELD THAT:- As we have called for the record of assessment proceedings, from which it does not reflect that the said notice u/s 148 was ever served upon the assessee or received by the assessee at the address as mentioned in the notice u/s 148 and the order for affixture of notice dated 03.03.2012. Even we realized that the Assessing Officer has sent the notice u/s 148 to the assessee at the address i.e. Behind Power House, Mohalla Saingarh, Pathankot, whereas in the assessment order, the address has been written as C/o Kundan Vila, LIC Lane, Dhanu Road, Pathankot, which further strengthen the case of the assessee that no notice or any enquiry letters has ever served upon the assessee at his proper address. Therefore, non-service of notice u/s 148 of the Act, vitiate the assessment proceedings and therefore on this ground also, the assessment proceeding/order is liable to be quashed. Hence, on the aforesaid analyzations and deliberations and in cumulative effects, we do not have any hesitation to quash the assessment order.
-
2019 (2) TMI 2116
Interpretation of statute - whether the word "existence" would include weeding-out arbitration clauses in agreements which indicate that the subject-matter is incapable of arbitration? - Rights in rem - Applicability of decision in the case of Himangni Enterprises [2017 (10) TMI 566 - SUPREME COURT] - HELD THAT:- A close reading of Section 114 would show that the rights of landlord and tenant are balanced by the aforesaid provision. This is because where a lease of immoveable property has determined by forfeiture for non-payment of rent, and at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrears, together with interest thereon and his full costs within 15 days, the Court in its discretion may relieve the lessee against the forfeiture - it is clear that every one of the grounds stated in Section 111, whether read with Section 114 and/or 114A, are grounds which can be raised before an arbitrator to decide as to whether a lease has or has not determined.
In a similar situation, this Court, in OLYMPUS SUPERSTRUCTURES PVT. LTD. VERSUS MEENA VIJAY KHETAN [1999 (5) TMI 581 - SUPREME COURT], held that when it came to the grant of specific performance, there is no prohibition in the Specific Relief Act that issues relating to specific performance cannot be referred to arbitration, unlike the English statute.
Equally, merely because a discretion had to be exercised by the court on whether or not to grant specific performance, would not militate against specific performance being granted. It is clear, therefore, that the judgment in Himangni Enterprises will require a relook by a Bench of three Hon'ble Judges of this Court - One more thing held in Himangni Enterprises is that the mere fact that an exemption from the Rent Act is available does not mean that the matter becomes non-arbitrable. The Court held that as soon as the exemption is withdrawn, the Rent Act will apply, and therefore, it cannot be contended that the Arbitration & Conciliation Act would apply. This reasoning is also, in our respectful view, not correct. Persons may be exempt from a Rent Act not merely for a certain period but also because the rent contained in the agreement between the landlord and tenant is above a certain amount. When the rent is fixed above the amount stated by a statute, in the normal course of human conduct, such rent can only be increased and not decreased so as to fall back within the provisions of the Rent Act. Further, the exemption based on a certain rent payable need not be withdrawn or cease to have application to a particular premises for many years to come. For all these reasons, we are of the view that this reason also does not hold good.
A few Sections of the Indian Trusts Act will suffice to demonstrate how disputes under this Act cannot possibly be the subject matter of arbitration. Under Section 34 of the Indian Trusts Act, a trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice, or direction on any present questions respecting management or administration of trust property, subject to other conditions laid down in the Section. Obviously, an arbitrator cannot possibly give such opinion, advice, or direction. Under Section 46, a trustee who has accepted the trust, cannot afterwards renounce it, except, inter alia, with the permission of a principal Civil Court of original jurisdiction. This again cannot be the subject matter of arbitration.
Under Section 74 of the Indian Trusts Act, under certain circumstances, a beneficiary may apply by petition to a principal Civil Court of original jurisdiction for the appointment of a trustee or a new trustee, and the Court may appoint such trustee accordingly. Here again, such appointment cannot possibly be by a consensual adjudicator. It can only be done by a petition to a principal Civil Court of original jurisdiction. Also, it is important to note that it is not any civil court that has jurisdiction, but only one designated court, namely, a principal Civil Court of original jurisdiction. All this goes to show that by necessary implication, disputes arising under the Indian Trusts Act cannot possibly be referred to arbitration.
This case is referred to a Bench of three Hon'ble Judges - the stay that has been granted to the arbitral proceedings by order dated 13.08.2018 is lifted, and the proceedings may go on and culminate in an award. The award cannot be executed without applying to this Court.
-
2019 (2) TMI 2115
Rejection of plaint under Order 7 Rule 11(d) of the Code of Civil Procedure (CPC) - Jurisdiction of Civil Courts - Applicability of Section 34 of the SARFAESI Act, 2002 - HELD THAT:- The trial Court has considered this argument of the appellant and rightly opined that there is no doubt that at the stage of decision of an application under Order 7 Rule 11 CPC, only plaint averments are required to be taken into account. Thereafter, the Court has taken pains to consider the plaint averments.
A careful reading of the finding of trial court shows that the said finding is based on the plaint averments itself. As per plaint averments, reproduced in the order of Court below, it is clear that the property in question as per the plaintiffs is part of khasra number 260 whereas as per bank it is part of khasra number 1039. The trial Court further opined that although plaintiff has brought the suit for khasra number 1039, the said khasra number was shown as khasra number 260 and loan was obtained. Thus, the trial Court has taken a decision on the basis of plaint averments itself and was not impressed with any factual defence taken by the bank. The trial Court rejected the plaint in the teeth of Section 34 of the SARFASI Act.
The trial court has rightly considered the plaint averments on the anvil of Section 34 of the SARFASI Act. Since jurisdiction of Civil Court is barred, the plaint was rightly rejected by applying the principles of ‘nip in the bud’ - there are no jurisdictional error, illegality or perversity in both the orders impugned - the appellant has a remedy of appeal under Section 17 of the SARFASI Act, 2002 - there are no substantial question of law and reason to entertain this second appeal.
Appeal dismissed.
-
2019 (2) TMI 2114
Seeking grant of bail - allegation is that petitioners have obtained Invoices from the Company of the respondent without delivery of the goods and thereby evaded payment of tax and they have committed an offence under Section 132(1)(b) of G.S.T. Act - HELD THAT:- The maximum punishment provided under the Act is five years and fine and if that is taken into consideration, the magnitude of the alleged offence and it is not punishable with death or imprisonment for life. Even as per the said provision, the alleged offence is also compoundable with the Authority, who has initiated the said proceedings. The only consideration which the Court has to consider while releasing the petitioners on anticipatory bail is, that whether the petitioners can be secured for the purpose of investigation or for the purpose of trial. Under such circumstances, it is felt that by imposing stringent conditions if the petitioners are ordered to be released on anticipatory bail, it would meet the ends of justice.
Under the similar facts and circumstances this Court in Crl.P. No. 979/2019 connected with Crl.P. No. 980/2019, after considering the issue has released the accused therein. In that light also the accused herein are entitled to be released on anticipatory bail.
The petitioners - Mr. Shravan A. Mehra and Mr. Anil K. Mehra are ordered to be released on anticipatory bail in the event of their apprehension or arrest in O.R. No. 40/2018-19 filed under Section 132 of G.S.T. Act, subject to the fulfilment of conditions imposed - bail application allowed.
-
2019 (2) TMI 2113
Challenge to order passed by the District Magistrate u/s 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - petitioner's grievance is that he is the owner of the property in question, and therefore, the impugned order dated 10.11.2017 deserves to be quashed - HELD THAT:- In the present case, respondent No.3 is driving the title of the property in question on the basis of sale deed dated 05.06.1995 and the petitioner is claiming title on the basis of sale dated 04.02.2016. There are allegations and counter allegations in the matter. The petitioner himself has stated in the writ petition that later on after purchasing the property on 04.02.2016, he came to know that some other sale deed is also in existence dated 05.06.1995. Nothing prevented the petitioner to take action with quite promptitude by filing a civil suit. The petitioner woke up from slumber only after the impugned order has been passed by respondent No.1 on 10.11.2017.
In the present case, the respondent No.2 is proceeding ahead against the owner of the property i.e. respondent No.3 on account of the fact that the property was mortgaged with the respondent No.2. The sale deed on the basis of which, respondent No.3 is driving title is of the year 1995. This Court cannot comment upon the sale deed of the year 1995 nor the sale deed dated 04.02.2016, as claims and counter claims have been raised by the petitioner as well as by respondents No.3 and 4.
The petitioner himself has stated in the writ petition that while he was obtaining loan for raising construction on the plot, he came to know that respondent No.3 has obtained loan from respondent No.2 by mortgaging the plots on the strength of two registered sale deed executed in the year 1995. Nothing prevented the petitioner to file a civil suit immediately in the matter. The petitioner kept quiet and it only after the respondent No.2 has initiated action against respondent No.3 and after an order has been passed on 10.11.2017, the present petition has been filed.
At present, there is an order against the petitioner dated 10.11.2017, which is certainly an appealable order and petitioner certainly has a right to place all grounds in support of his averments before the appellate authority. This Court does not find any reason to interfere with the order passed by respondent No.1 - Petition dismissed.
-
2019 (2) TMI 2112
Legality of removal of the writ Petitioners' food/pan stalls situated at Bandra Station Road - It was alleged that the action to remove the structures/stalls was not in conformity with any provision of the Act inasmuch as it also violated the principle of natural justice - Applicability of Sections 312 and 314 of the Mumbai Municipal Corporation Act, 1888 - HELD THAT:- The Appellants filed certain additional documents in these appeals such as map and the photographs of the site in question in support of their case. These documents were not filed before the High Court as is clear from the perusal of the impugned order. These documents were allowed to be taken on record being relevant and material for deciding the issue involved in these appeals. The Respondents, however, did not dispute the veracity of these documents and, therefore, these documents remained indisputable.
Perusal of the counter affidavit, map and the photographs of the site in question clearly show that, first, the stalls/structures of the Respondents were found erected on the sewer line/chamber; Second, these structures/stalls were not erected by the Respondents with the permission of the Commissioner as required Under Section 312 (1) of the Act; Third, no sanctioned map was filed by the Respondents to prove that the structures were legal; and fourth, the stalls/structures were causing obstruction to public at large and were causing encroachment on the street (Bandra Station Road), which is very narrow.
The Appellant (Commissioner) was justified in invoking the powers Under Section 314 of the Act against the Respondents on 26.05.2018 for removal of their stalls/structures. Since the action to remove the stalls/structures was taken Under Section 314 of the Act, it was not necessary to give any prior notice to the Respondents though a circular was issued on 05.10.2015 requesting the Respondents to remove their stalls/structures from the site in question.
The High Court was, therefore, not justified in striking down the action of the Appellant (Commissioner) taken Under Section 314 of the Act for removal of their stalls/structures on 26.05.2018. The High Court was also not justified in issuing a mandamus directing the Appellant-Municipal Corporation to provide to each Respondent some suitable land either in the same area or in adjacent area.
It is a settled principle of law that a writ of mandamus Under Article 226 of the Constitution is issued, when there is a right and correspondingly there is a legal duty to perform. In this case, neither there was any right (contractual or legal) in writ Petitioners' favour and nor there is any provision in the Act which casts an obligation to provide any alternate land to the Respondents.
The impugned order is set aside - Appeal allowed.
-
2019 (2) TMI 2111
Disallowance of payment for trademark to associated enterprises - Ground directed against the order of the AO holding that no recognizable benefit was passed on the appellant and therefore, there was no rationale for paying for trademark to the associated enterprises - HELD THAT:- We find that the revenue has brought no material on record to show that the operation of the order of the Tribunal passed in the assessment years 2007-08, 2008-09 & 2009-10 and 2010-11, 2011-12 & 2012-13 has been stayed by the Hon'ble High Court [2017 (2) TMI 1537 - DELHI HIGH COURT] That being so, the facts being identical, respectfully following the precedent, we set aside the order of the AO and allow this ground of appeal of the assessee.
Ad-hoc disallowance being 30% of the total expenditure incurred by the assessee on advertisement and publicity - assessee submitted that any disallowance on account of advertisement and sales promotion expenses holding the same to be incurred for brand building for the entities owing brand shall not be sustainable in law and the expenses were incurred for advertisement/marketing support activities etc. and are incidental to carrying on the business - HELD THAT:- Aa decided in earlier assessment years 2007-08, 2008-09 & 2009-10 vide order dated 29.04.2016 [2016 (7) TMI 21 - ITAT DELHI] the advertisement expenditure incurred by the assessee is incurred wholly for the purpose of its business and profession and ought to be allowed deduction in entirety. Further, the assessing officer has clearly made an ad-hoc disallowance of advertisement expenditure incurred by the assessee, which is not permissible under the law. We are of the considered view that AO was not justified in making such ad-hoc disallowances and therefore, direct the assessing officer to delete the adjustment on this account - Thus allow this ground of appeal of the assessee.
Disallowance on account of delay in deposit of employee's contribution towards Provident Fund u/s. 36(1)(va) - HELD THAT:- The issue has been decided against the assessee and in favour of the revenue by the Hon'ble Delhi High court in the case of CIT Vs M/s. Bharat Hotels Ltd. [2018 (9) TMI 798 - DELHI HIGH COURT] concluding amounts constituting deductions from employees' salaries towards their contributions, which were made beyond such stipulated period, obviously the assessee was not entitled to claim the deduction from its returns."
Levying interest u/s. 234A and 234B - HELD THAT:- We find that it is not in dispute that the return of income was filed by the assessee on 29.11.2014 as evident from the assessment order passed by the AO - also not in dispute that the due date for filing the return of income was 30.11.2014. Section 234A provides that where a return of income for any assessment year under sub-section (1) of Section 139 of the Act is furnished after the due date ending on the date of furnishing of return then assessee shall be liable to pay simple interest @ 1% for every month or part of a month comprised in the period commencing on the date immediately following the due date.
Thus, it is not in dispute that the return of income was filed by the assessee within the due date prescribed in sub-section (1) to Section 139 and therefore, no interest u/s. 234A was leviable on the assessee. Hence, we delete the interest levied u/s. 234A and allow this ground of appeal of the assessee.
Charging of interest u/s. 234B - assessee submitted that it was consequential. Therefore, this ground of appeal of the assessee is dismissed.
-
2019 (2) TMI 2110
Jurisdiction of the High Court under Article 226 of the Constitution of India - private educational body performing public duty or discharging public function - whether private institutions imparting education perform public duty, a State function, making them amenable to judicial review under Article 226 of the Constitution of India? - HELD THAT:- Though the jurisdiction of the High Court is not confined to issuing prerogative writs, there is consensus of opinion, the Court will not permit this extraordinary jurisdiction to be converted into a suit. A declaration that a contract of service with the employer still subsisted will not be made in the sphere of an ordinary relationship of master and servant or contract of service, not protected by any statutory or constitutional provisions, because of the principle that Courts do not grant specific performance of contract of service.
Judicial Review forms the basic structure of the Constitution. It is inalienable. Public law remedy by way of judicial review is available under Articles 32 and 226 of the Constitution. They do not operate in different fields. Article 226 operates only on a broader horizon to cover any other person or body performing public duty and not confined only to statutory authorities and instrumentalities of the State.
Governmental functions are multifacial. There cannot be a single test for defining public functions. Such functions are performed by a variety of means. Furthermore, even when public duties are expressly conferred by statute, the powers and duties do not thereunder limit the ambit of a statute, as there are instances when the conferment of powers involves the imposition of duty to exercise it, or to perform some other incidental act, such as obedience to the principles of natural justice. Many public duties are implied by the Courts rather than commanded by the legislature; some can even be said to be assumed voluntarily. There are, however, public duties which arise from sources other than a statute.
A private body though not 'State', but performing public duty is amenable to the writ jurisdiction under Article 226 of the Constitution. Whether a writ would lie at the behest of an aggrieved party against the offending act of the private body performing public duty would depend upon the facts and the nature of the offending act complained against.
Whether private educational institutions perform public duty? - HELD THAT:- The State neither has the funds and resources to setup educational institutions and in particular institutions imparting higher education. Imparting education is not a State monopoly, though it is one of the most important functions of the Indian State. The right to establish and administer educational institution is guaranteed under the Constitution to all citizens under Article 19(1)(g) and 26, and to the minorities specifically under Article 30 - A mere recognition from the State or affiliation by the Board/University does not make the educational institution an instrumentality of the State. But nevertheless educational institution discharge public duty in supplementing the effort of the State in imparting education, it is not an independent activity viz. banking and other commercial activity. If, therefore, what is discharged by the educational institution, is a public duty then that requires it to act fairly.
Private educational institutions, both aided and unaided, or established and administered by religious and linguistic minorities, as well as by non-minorities provide education at three levels, viz., school, college and professional level. The ultimate goal of a minority institution imparting general secular education like any other private educational institution is advancement of learning primarily a State function, therefore are amenable to judicial review under Article 226 of the Constitution of India.
The reference to the Full Bench, shall accordingly stand answered - The writ petition shall now be placed before the regular Bench according to roster for disposal in light of the questions so answered.
-
2019 (2) TMI 2109
Denial of Benefit of section 50B - non- furnishing of audit report - HELD THAT:- As assessee has applied concessional tax u/s 50B in the return of income. It is a fact that audit report was not filed at the time of filing of return of income in the AY under consideration. There is no possibility that assessee is expected to file the report along with the return of income, when there is provision to file with the return of income.
As long as, it is submitted at the time of assessment, it is as if filed along with the return of income.
AO is expected to accept the report when it is filed at the time of assessment. The claim of the assessee can be submitted only at the time of assessment when the case is selected for scrutiny. AO has to consider the submissions of the assessee when it is filed at the time of assessment. Even otherwise, the filing of report is curable even if it is not submitted along with the return of income. This cannot be the reason for the AO to deny the benefit which is lawfully eligible. Therefore, we direct the AO to accept the audit report and allow the benefit u/s 50B to the assessee. Accordingly, grounds raised by the assessee on this issue are allowed.
-
2019 (2) TMI 2108
Addition made towards estimation of G.P - Suppression of sales and turnover - discrepancies were noticed in the books of accounts found and seized during the course of search regarding the amount withdrawn and debited - as noticed that in place of real purchase of 1207.430 gms., only 188.500 gms. found place in the regular stock register giving rise to suppression of 1018.93 gms. which showed that a very good percentage of business of the show room at Kollam., i.e., about 84.39% was outside the books of accounts and only 15.61% was accounted.
HELD THAT:- The seized material related to the assessment year 2008-09. The Assessing Officer made the assessments for the assessment year 2005-06 to 2007-08 on the basis of the assessment of income for the assessment year 2008-09. There was a clear finding of the AO that the assessee firm had practiced suppression of sales for all the assessment years uniformly.
When it was a clear case of suppression which was found during the course of search and seizure operations, it is to be reasonably presumed that for the previous assessment years i.e., 2005-06, 2006-07 and 2007-08, the assessee had done suppression of sales. The discrepancies found during the search on 21/08/2007 were brought to the notice of Mr. Sunny Jacob who in reply to Q. No. 5 explained that the assessee was issuing 'estimate slips' only for showing the customer, but they were issuing bills on finalization of the sales.
This method adopted by the assessee is having no legal sanction. It was also noticed that the assessee had effected sales by issue of 'estimate slips' instead of sale bills and that sale bills were prepared for accounting purposes only in a few cases. It was also noticed that the sales on 'estimate slips' were not accounted resulting in unaccounting of sales and suppression of turnover. The estimate slips collected from different shops and the margin of profit on sale of gold ornaments were clearly compiled in para 18 of the original assessment order. This practice was regularly followed by the assessee.
In view of these facts and circumstances, there is a clear pattern of sales suppression visible in this case. Therefore, the ratio of the judgment of H.M. Esufali H.M. Abdulali (1973 (4) TMI 49 - SUPREME COURT] clearly applies to the case in hand.
In this kind of assessment, which was consequent to search u/s. 132 of the Act, the undisclosed income is to be computed based on evidence found as a result of search. The evidence collected during the course of search action suggest that the assessee is issuing 'estimate slips' while collecting sales. Later, the sale bills are prepared for accounting purposes and accounting of the sales made through 'estimate slips' which resulted in suppression of sales which was confirmed by the statement recorded from Shri Bejimon S., erstwhile Manager of M/s. Sunny Jacob Jewellers and Wedding Centre, Kottarakkara tried to explain that the shop at Kottarakkara was not using computer but on re-examination he stated that the computer was used at least sparingly. The statement given by Shri Pintu T. Jacob, Computer Operator, M/s. Sunny Jacob 916 Jewellery, Trivandrum was a clarification to the effect that he was only printing 'estimate slips' and not sale bills and he was only entrusted with the work of printing estimate slips and sale bills were written by Shri Mathew Eapen.
Assessing Officer had no option but to estimate the income of the assessee. It cannot be said that it is arbitrary but based on corroborative evidence unearthed during the course of search action and enquiry thereafter. In our opinion, the books of accounts of the assessee were rejected by the Assessing Officer and once the books of accounts are rejected, the turnover has to be estimated and while estimating the turnover, the pattern followed by the assessee has to be considered. In this case, the strategy followed by the assessee to suppress the sales is common for all the assessment years as compared to assessment year 2008-09 which would have direct relevance for estimation of income for the assessment years 2005-06 to 2007-08.
Scope of information gathered either during pre-search enquiry or during the course of search so far as the six previous assessment years - \As in the assessee's own case [2014 (3) TMI 217 - KERALA HIGH COURT] held that u/s. 153A, the Department can assess or reassess in accordance with the assessment or reassessment procedure contemplated u/s. 153A of the Act. There is also no requirement u/s. 153A and other provisions requiring the Department to collect information and evidence for each and every year for the six previous years u/s. 153A of the I.T. Act. Therefore, the argument of the learned counsel for the appellant-assessee that the information gathered either during pre-search enquiry or during the course of search cannot be made use so far as the six previous assessment years, is unsustainable.
Thus we find that the AO has given a categoric finding with regard to suppression of sales for all the assessment years. While estimating the profit, the Assessing Officer has assessed the income on the basis of rate of profit adopted for the assessment year 2008-09. On this reasoning, we do not find any infirmity in the order of the Assessing Officer and the same is confirmed. Hence, this ground of appeals of the Revenue are allowed.
........
|
9911796707
