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2020 (3) TMI 1485
Revision u/s 263 - Assessee credited a sum in the account of M/s. Nitin Sales Corporation and debited a sum in the same account, which the AO failed to examine - HELD THAT:- Assessee furnished all the relevant details to CIT by giving elaborate response which has been referred to hereinabove and also reproduced in the impugned order.
Not only did the assessee explain the source of payment of Rs.7.00 lakh given to Shri Nitin Bhusare but also gave the Permanent Account Number and other relevant income-tax details of M/s N.K. Developers and also Shri Nitin Bhusare. No infirmity whatsoever was found by the ld. Pr.CIT in such details. Despite that, he proceeded with setting aside the assessment order. In our considered opinion, if there is an aspect of the assessment which does not find mention in the assessment order, the Pr. CIT can rightly invoke his power u/s.263.
Having invoked such a power, if the assessee furnishes details proving the veracity of that aspect of the assessment, which prima facie appear to be correct and are further not faulted with, then the Pr. CIT cannot treat the assessment order erroneous and prejudicial to the interest of Revenue on that score and direct the AO to examine it de novo.
Assessee did furnish all the relevant details of the receipt from and payment to M/s. Nitin Sales Corporation. The ld. Pr. CIT did not find anything amiss in such details. In that case, he could not have set aside the assessment order and directed the AO to re-examine the same. The impugned order, being contrary to law, cannot be sustained. Decided in favour of assessee.
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2020 (3) TMI 1484
Anti-competitive action - abuse of dominant position - relevant market - Opposite Party is dominant in the said relevant market or not AGL has abused its dominant position in the relevant market.
Whether AGL is dominant in the said Relevant Market? - HELD THAT:- A vital question for consideration which cannot be glossed over and is of primary importance in regard to status of Industrial Consumers as a distinct category is whether there is any gaseous substitute for natural gas for the Industrial Consumers. It emerges from the record that two types of agreements were offered by AGL to Industrial Consumers viz. (a) MGO Contract, whereby the off taker agrees to purchase a minimum amount of natural gas ensuring a minimum level of supply to the buyer and stable revenue to the supplier and (b) Non-MGO Contracts, where the buyer is not under any obligation to purchase a minimum level of gas and has the liberty to purchase gas based on its requirement.
the only conclusion deducible on the basis of material available on record is that during the relevant period there was no gaseous substitute of natural gas available to Industrial Units in Faridabad. It is emphatically clear that PNG was not interchangeable with other fuels as contended on behalf of AGL. Furthermore, it cannot be ignored that during the relevant period LPG was not available to Industrial Units as an alternate fuel as revealed from the submissions made before the DG. It is therefore futile on the part of AGL to contend that it had successfully demonstrated that PNG was interchangeable with other fuels at the relevant time. Having regard to all relevant considerations and the material available on record, we find no hesitation in supporting the finding recorded by the Commission on the aspect of ‘relevant market’ and ‘AGL’s dominant position in the relevant market’. The fact that the pipeline infrastructure setup by AGL subsequently can be used now by any other competitor to distribute CNG does not create any dent in the aforesaid finding. As a sequel thereto, we affirm the finding that the Appellant – AGL occupied a position of strength making it the dominant player and enjoying dominant position in the relevant market.
Alleged abuse of dominant position be it seen that the Commission in its impugned order held against AGL contravention - HELD THAT:- On a plain reading of the provision engrafted in Section 27 of the Act, it emerges that contravention of Section 3 or Section 4 of the Act being established, the Commission is empowered to pass all or any of the orders envisaged under Clauses (a) to (g). The language of this provision leaves no scope for doubt that the Commission may, befitting the circumstances of a case, pass any order falling under either one or more of the Clauses in combination or even encompassing all the Clauses. The term ‘any’ has to be accorded a purposive and a creative interpretation which can be explained on no hypothesis other than the one that it embraces one, more than one, some, many and all.
In the instant case, the Commission passed orders under Clauses (a), (b) & (d) of Section 27. Under Section 27(a), Commission directed AGL to cease and desist from indulging in the contravening conduct; under Section 27(b), the Commission imposed a penalty of 4% of the average turnover of the last three years while under Section 27(d), the Commission directed AGL to modify the Gas Supply Agreements (GSAs) in light of observations in the impugned order. So far as direction under Section 27(a) is concerned, no exception can be taken to it. AGL has to be restrained perpetually from indulging in the contravening conduct. Now before coming to quantum of penalty under Section 27, it is apt to ascertain whether AGL has modified the Gas Supply Agreements (GSAs) to bring it out of the offending, violative and contravening conduct.
Conclusion - AGL enjoyed a dominant position, its dominance prevailed in the relevant market, and it abused its dominant position by imposing unfair conditions. The penalty imposed on AGL is modified by reducing it from 4% to 1% of the average turnover for the relevant years.
Appeal disposed off.
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2020 (3) TMI 1483
Anti-competitive action - abuse appreciable adverse effect on competition (AAEC) within the relevant market in India - procedural requirements under Sections 29 and 30 of the Competition Act, 2002.
HELD THAT:- The question as to how a notice on proposal of combination in terms of Section 6(2) was required to be considered came for consideration before this Appellate Tribunal in TA(AT)(Competition) No.32 of 2017 (appeal No.43 of 2016), Piyush Joshi Vs Competition Commission of India [2019 (7) TMI 2006 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that 'on receipt of notice from a person or enterprise, who or which proposes to enter into a combination, if the Commission forms opinion that no prima facie case emerges to hold that a combination is likely to cause, or has caused an appreciable adverse effect on competition within the relevant market in India, is not required to follow the procedure under Section 29 and Section 30 of the Act and required to pass order of approval under Section 31.'
The Commission observed that both the parties to the Proposed Combination are entities with foreign investments and are thus governed by the Foreign Director Investment Policy which explains B2b Sales as “Cash and Carry Wholesale trading/Wholesale trading, would mean sale of goods/merchandise to retailers, industrial, commercial, institutional or other professional business users or to other wholesalers and related subordinated service providers. Wholesale trading would, accordingly, imply sales for the purpose of trade, business and profession, as opposed to sales for the purpose of personal consumption. The yardstick to determine whether the sale is wholesale or not would be the type of customers to whom the sale is made and not the size and volume of sales. Wholesale trading would include resale, processing and thereafter sale, bulk imports with export/ex-bonded warehouse business sales and B2B e-commerce. This lays the boundaries of B2B sales within which the parties to the combination have to operate.
The Commission specifically and rightly came to a finding in absence of any evidence on record that the proposed combination is not resulting in elimination of any major player in the relevant market. The appellant has failed to show that any major player in the relevant market will be eliminated due to combination in question.
This Appellate Tribunal in Piyush Joshi [2019 (7) TMI 2006 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], held that in absence of any prime facie opinion framed, that the combination is likely to cause or has caused appreciable adverse effect on the competition within the relevant market in India, the Commission is not required to following the procedure under Section 29 and Section 30 of the Act and is required to pass order of approval under Section 31. In the present case there are no prime facie case has been made out on the facts of the case or by appellant. There is no requirement on the part of the Commission to follow the procedure under Section 29 and 30 of the Act and it rightly passed order of approval under Section 31 of the Act.
Conclusion - In absence of any prime facie opinion framed, that the combination is likely to cause or has caused appreciable adverse effect on the competition within the relevant market in India, the Commission is not required to follow the procedure under Section 29 and Section 30 of the Act.
There are no merit in this appeal. It is accordingly dismissed.
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2020 (3) TMI 1482
Anti-competitive conduct - abuse of dominant position - Association of Malayalam Movie Artists (AMMA) and Film Employees Federation of Kerala (FEFKA) - violation of Sections 3 and 4 of the Competition Act, 2002 - HELD THAT:- There are large number of evidences which have been relied upon by the DG and also by the Commission to come to a definite conclusion about the Appellant(s) indulged in anti-competitive conduct in violation of the provision of Section 3 of the Act. Accordingly, the Appellants - Association of Malayalam Movie Artists (AMMA/Opposite Party No. 1/ OP-1); Film Employees Federation of Kerala (FEFKA/Opposite Party No. 2/OP-2); FEFKA Director’s Union’ (Opposite Party No. 6/ OP-6); and FEFKA Production Executive’s Union (Opposite Party No. 7/ OP-7) and their office bearers were found to be liable under Section 48 of the anti-competitive conduct.
Conclusion - The trade unions are not exempt from the Competition Act and that anti-competitive agreements need not be formalized to be actionable.
Appeal dismissed.
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2020 (3) TMI 1481
Levy of service tax on the appellant's activities prior to 01.07.2010 as well as period from 01.07.2010 to 31.12.2010 - construction of complex service - extended period of limitation - interest and penalties.
HELD THAT:- The legislative competence to tax has been enlarged by the 46th Constitutional amendment and to that extent, the scope of the residual clause entry 97 of the Union List was truncated. In other words, prior to 46th amendment, tax on composite works contract could be levied by the Union (although they never levied it) and after 46th amendment, the Union was competent to levy the tax only on such contracts to the extent they did not represent deemed sale or purchase of goods under Article 366(29A). The legislative competence of the Union to tax “works contracts” per se was never in doubt.
The question as to whether taxation of works contracts is covered by the charging section of the service tax provisions (Finance Act 1994) or otherwise was examined by the Hon’ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] - The Hon’ble Apex Court has decided that service contracts are a separate specie of contracts known to the trade and they cannot be equated with contracts for service simpliciter. Therefore such contracts can be charged to service tax only with effect from 01.07.2007 and as works contract service (when works contracts were brought under charging Section 66).
As far as service tax under “construction of complex services” is concerned, prior to 01.07.2010 (when the explanation was inserted), no tax could be levied. This was also clarified by the CBEC in Circular No. 108/2/2009/ST dated 29.01.2009. The question before the Tribunal Principal Bench in the case of M/S KRISHNA HOMES VERSUS CCE, BHOPAL AND CCE, BHOPAL VERSUS M/S RAJ HOMES [2014 (3) TMI 694 - CESTAT AHMEDABAD] was whether this limitation on taxation prior to 01.07.2010 also extends to cases where such services were rendered not as “construction of complex services” but as “works contract services” and it was answered in affirmative.
Thus, no service tax could be charged from the appellant in respect of the services rendered by them as works contract services for the period 01.06.2007 to 01.07.2010.
Period from 01.07.2010 to 31.12.2010 - HELD THAT:- The undisputed fact is that appellant had entered into two contracts one for sale of land and the second construction agreement for the flat with individual buyers. For a tax to be levied under works contract service, in the first place, it must be either construction of a new residential complex or a part thereof or completion of unfinished services related to it. The term “residential complex” under Section 65(91a) specifically excludes any construction for personal use by an individual. This builder has planned his business with a separate construction agreement entered into with individual flat owners. Hence they get excluded from the definition of works contract service. Therefore no service tax can be levied even for the period post 01.07.2010.
Thus, the entire demand needs to be set aside along with interest and penalties - appeal allowed.
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2020 (3) TMI 1480
Disallowance of deduction claimed u/s 80IC while processing the return of income u/s 143(1) - HELD THAT:- As noticed that the return of income of the assessee pertaining to AY 2016-17 was processed u/s 143(1) on 25.06.2017, i.e., after the date of insertion of clause (v) to sec.143(1), i.e, after 1.4.2017. The contention of the revenue is that, if processing of return of income of any assessment year is done after 1.4.2017, then the provisions of clauses (iii) to (vi) inserted w.e.f. 1.4.2017 can be applied. In that case, in our view, the proviso mandating giving of intimation to the assessee to the proposed adjustment should have also been followed by the revenue.
It is so because, the said proviso was also inserted in sec. 143(1) along with clauses (iii) to (vi) by Finance Act, 2016. Since no such intimation was given to the assessee, the impugned adjustment is liable to be deleted.
D.R invited our attention to the provisions of sec. 80AC of the Act. However, the controversy here is related the power of the AO in processing return of income u/s 143(1) - Hence we are of the view that we need not examine the provisions of sec. 80AC of the Act at this stage.
Accordingly, we set aside the order passed by CIT (A) on this issue and direct the AO to delete the disallowance of deduction claimed u/s 80IC of the Act - Appeal of the assessee is allowed.
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2020 (3) TMI 1479
Lifting of attachment over the land which was the secured asset of the Indian Bank - Priority of secured creditors under Section 26E of SARFAESI Act - HELD THAT:- It is settled beyond the pale of doubt that in view of the overriding non obstante provisions enacted in Section 26E of the SARFAESI Act as well as Section 31B of the RDB Act, the realisation of the secured interest for satisfying the debts of the secured creditors shall prevail over all other dues including the decretal dues under the decrees passed by the Civil Courts and the Government dues like taxes, cesses etc. The purpose of enacting this special provisions with non obstante clause is obvious i.e., to give them an overriding effect over the dues of other persons or Departments. Therefore, the dues under a decree held to the Appellant/TANFED has to take a back seat behind the secured interest claimed by the financial institutions or his assignee like ARCIL in the present case. Therefore, there is no iota of doubt that the learned Single Judge was justified in lifting or raising or removing the attachment over the secured interest or the land in question which is secured of the secured creditor Bank of India/ARCIL in the present case.
As far as the claims, based on facts or objections like the extent of land, being the secured interest of the Bank/Assignee's concerned or its value being an excess etc. if any, are concerned, these factual issues are required to be gone into by the concerned Debts Recovery Tribunal or the Authorised Officer thereof, who is dealing with the said security interest under the provisions of the SARFASEI Act/RDB Act. The Appellant/ TANFED, the Decree Holder is of course free to raise all these factual objections or such claims before the concerned Debts Recovery Tribunal or the Authorised Officer of DRT.
The present Original Side Appeal is disposed of.
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2020 (3) TMI 1478
Validity of reassessment proceedings - cash credits u/s 68 - HELD THAT:- A perusal of the reasons demonstrate that the Assessing Officer was of the belief that the assessee is engaged in “tyre business” and as such, large cash deposits and cash withdrawals do not appear to be genuine business transaction. This assumption of the Assessing Officer is factually incorrect. AO in the assessment order for the records that, “the assessee was engaged in the business of raw jute, seeds etc. in remote areas.” This proves that there was non-application of mind by the AO while recording reasons for reopening. The basis on which the reopening is made is factually incorrect. When the assessee is not engaged in “tyre business” and when he is engaged in the business of raw jute, seeds, taking mango gardens on lease etc. that too in remote areas, cash transactions are inevitable. AO also records that the tax auditor has noted the fact of these cash transactions in his audit report in From No. 3CD. Hence he knew that these are not unrecorded transactions. Thus, the entire premise on which the reopening is made, is bad in law
Reopening is bad in law as the belief is based on wrong facts and inferences and against the facts on record.
AO in the reasons recorded clearly states that the cash deposits are “suspicious”. Suspicion cannot be basis of recording reasons that income subject to tax has escaped assessment, for the purpose of reopening of assessment. The reasons recorded contradict the information in Form 3CD, wherein he noticed that the tax auditor has audited these transactions and draw some conclusions and that these were examined by the AO.
When the entire transactions, bank accounts etc. are recorded in the books, the question of coming to a conclusion that the transactions are not truly disclosed, is a factual mistake. Moreover, it is clear that the entire reasons are recorded based on borrowed satisfaction from the office of the DDIT-Kolkata, rather than prima facie application of mind by the AO to the information received. The books of accounts were impounded by the investigation wing. The books of accounts were audited and the copies of the annual accounts and audit report were on the file of the Assessing Officer. The Assessing Officer has not bothered to examine the information received with these documents. He recorded reasons that he has formed a belief that income subject to tax has escaped assessment based on surmises and conjectures arising out of wrong facts.
The reopening for both the Assessment Years, is bad in law, as there is non application of mind to the information by the AO, so as to come to a reasonable belief that income subject to tax has escaped assessment.
AO has recorded the same figures of cash deposits for both the Assessment Years, which also demonstrates non-application of mind. The turnover, cash deposits, cash withdrawn etc. varies from year to year - Decided in favour of assessee.
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2020 (3) TMI 1477
Bail application filed under section 438 Cr.P.C - rape - sexual intercourse with the victim without her consent - blackmailing - HELD THAT:- The authenticity of the CDR can only be judged at the appropriate stage. It is settled law that at this stage of bail, the court cannot minutely examine and analyze the prosecution evidence or defence of the accused as no mini trial can be conducted while deciding the bail application.
Keeping in view the facts appearing on record and the allegations leveled against the petitioner which are grave in nature and further keeping in view the fact that petitioner has not only videographed the alleged incident of sexual intercourse but also threatened the victim, no grounds for anticipatory bail are made out at this stage. The anticipatory bail application is, therefore, dismissed and stands disposed of accordingly.
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2020 (3) TMI 1476
Part addition sustained on account of X-Ray receipts - suppression of receipts - HELD THAT:- Addition is not based upon any material or evidence for the year under consideration and even during search nothing has been found related to the year. There is no basis for estimation of suppression of X-Rays. Even the technician during the search proceedings had stated that in every bundle certain X-Rays gets damaged, and further there are various other reasons by which X-Rays films can get damaged. There is no allegation that some X-Rays having been done, and there is no receipts issued or there is any suppression of receipts. Therefore, in view of the above facts and circumstances of the case, we find no merit in the addition sustained by the ld CIT(A) hence we direct the A.O. to delete the same.
Addition for discounts - AO made addition on the ground that in the search year it was found that the appellant had claimed certain discounts which could not be verified - CIT(A) sustained disallowance @ 25% - HELD THAT:- There is no claim of discount as such, and the addition was based on estimated discounts. In case there is no claim of such discounts the question of disallowance of any addition is uncalled for. There is no case of suppression of receipts by showing lesser receipts. Further if the receipts are shown net of discount the same cannot be said to be not verifiable as the same is directly linked to the corresponding receipts. The addition being made only on the basis of suspicion, therefore, we direct to delete the same.
Appeal of the assessee is allowed.
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2020 (3) TMI 1475
TP adjustment - interest on the delayed receipt of money from non-residents -DRP adopted PLR rate instead of LIBOR rate - assessee argued that the interest has to be levied only on the basis of the LIBOR and not under PLR - HELD THAT:- Interest was levied due to change in transfer pricing policy for the delayed receipt of purchase money. Therefore the source of interest is foreign country. Moreover, it is well settled principles of law, when money is to be received from outside the country, interest has to be charged only under LIBOR rate and not under PLR rate. In view of the above, we are unable to uphold the orders of the authorities below. Accordingly, the orders of authorities below are set aside and the Assessing Officer is directed to charge interest under LIBOR rate.
Disallowance of amount reimbursed for non-deduction of tax - Assessee approached the Authorities for Advance Rulings ( ‘AAR’), whether the reimbursement expenditure is liable for TDS or not - HELD THAT:- It is not in dispute that the matter is now pending before the AAR and also the Apex Court. If the Apex Court confirms the order of the Madras High Court, the AAR has to decide the issue one way or the other. Till the final decision is taken by the AAR, in view of the Section 245RR of the Act, no authority including this Tribunal could decide the matter. Therefore, as it was remitted back to the file of the AO in the earlier year, this year also needs to be remitted back to the AO.
Appeal of the assessee is partly allowed.
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2020 (3) TMI 1474
Maintainability of application - initiation of Corporate Insolvency Resolution Process (CIRP) - Corporate Debtor defaulted in payment of transport services - Operational creditor - HELD THAT:- The Debt and Default in question, are admittedly not in dispute, and the Respondent also admits the Debt and default as per counter as mentioned supra. The instant Petition is filed strictly in accordance with the extant provisions of the Code, and also suggested a qualified Resolution Professional namely Mr. Hari Babu Thota, who has filed his written Consent in Form -2 on 28.08.2019 by inter alia declaring that no disciplinary proceedings pending against him with the Board or ICSI Insolvency Professionals Agency. Therefore he is provisionally eligible to be appointed as IRP. Hence, the Instant Company Petition is fit case to admit by initiating CIRP appointing by IRP, and declaring moratorium etc., in respect of the Corporate Debtor.
The petition is admitted - IRP appointed - moratorium declared.
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2020 (3) TMI 1473
Dishonour of Cheque - acquittal of the accused - lack of evidence - legality of accused filing affidavit in lieu of examination in chief - HELD THAT:- The acceptance of the affidavit on behalf of the accused in lieu of the examination in chief was illegal and not authorized under section 145 of the NI Act. Necessarily, the evidence of PW1 is liable to be eschewed. Hence, the accused should be given a reasonable opportunity to tender evidence if the accused so volunteers. Since the matter is remanded, no further comment is made regarding the remaining findings on merit arrived at by the court below. Learned magistrate shall give reasonable opportunity to the accused to tender the evidence if he is so chooses and after giving a reasonable opportunity to the complainant to cross examine the witness, proceed in accordance with the law and thereafter to pronounce judgment afresh on the entire facts.
The matter is remanded to the court below for a fresh consideration of the matter after giving a reasonable opportunity to the accused to tender the evidence, if he so desires - Appeal allowed by way of remand.
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2020 (3) TMI 1472
Period Of Limitation for filing an application for execution of a foreign decree of a reciprocating country in India - Whether Section 44A of the Code of Civil Procedure creates a fresh period of limitation - Applicability of Article 136 of the Limitation Act, 1963 to foreign decrees - Appellant Bank of Baroda filed a suit against the Vysya Bank for recovery of its dues in London.
Does Section 44A merely provide for manner of execution of foreign decrees or does it also indicate the period of limitation for filing execution proceedings for the same - HELD THAT:- We may note that there is no concept of cause of action in so far as an execution petition is concerned. Cause of action is a concept relating to civil suits and not to execution petitions. Cause of action is nothing but a bundle of facts which gives rise to a legal right enabling the Plaintiff to file a suit. On the other hand, a decree is a determination already made by a court on the basis of a reasoned judgment. In case of a decree it becomes enforceable the day it is passed. Therefore, we are clearly of the view that filing of an application Under Section 44A will not create a fresh period for enforcing the decree.
In our view, Section 44A is only an enabling provision which enables the District Court to execute the decree as if the decree had been passed by an Indian court and it does not deal with the period of limitation. A plain reading of Section 44A clearly indicates that it only empowers the District Court to execute the foreign decree as if it had been passed by the said District Court. It also provides that Section 47 of the Act shall, from the date of filing of certified copy of the decree, apply. Section 47 deals with the questions to be determined by the court executing a decree. Execution of a decree is governed Under Order 21 of Code of Civil Procedure and, therefore, the provisions of Section 47 of the Act and Order 21 of Code of Civil Procedure will apply. In our considered view, Section 44A has nothing to do with limitation.
Thus, Section 44A only enables the District Court to execute the decree and further provides that the District Court shall follow the same procedure as it follows while executing an Indian decree, but it does not lay down or indicate the period of limitation for filing such an execution petition. We answer question number 1 accordingly.
Period of limitation for executing a decree passed by a foreign court (from a reciprocating country) in India - The view worldwide appears to be that the limitation law of the cause country should be applied even in the forum country. Furthermore, we are of the view that in those cases where the remedy stands extinguished in the cause country it virtually extinguishes the right of the decree-holder to execute the decree and creates a corresponding right in the judgment debtor to challenge the execution of the decree. These are substantive rights and cannot be termed to be procedural. As India becomes a global player in the international business arena, it cannot be one of the few countries where the law of limitation is considered entirely procedural.
We have clearly indicated that if the law of a forum country is silent with regard to the limitation prescribed for execution of a foreign decree then the limitation of the cause country would apply.
We answer question No. 2 by holding that the limitation period for executing a decree passed by a foreign court (from reciprocating country) in India will be the limitation prescribed in the reciprocating foreign country. Obviously this will be subject to the decree being executable in terms of Section 13 of the Code of Civil Procedure.
From which date the period of limitation will run in relation to a foreign decree (passed in a reciprocating country) sought to be executed in India - A party filing a petition for execution of a foreign decree must also necessarily file a written application in terms of Order 21 Rule 11 Clause (2) quoted hereinabove. Without such an application it will be impossible for the Court to execute the decree. In our opinion, therefore, this application for executing a foreign decree will be an application not covered under any other Article of the Limitation Act and would thus be covered under Article 137 of the Limitation Act and the applicable limitation would be 3 years.
From which date the limitation starts - The limitation in India is 12 years for executing a money decree whereas in England it is 6 years. There may be countries where the limitation for executing such a decree may be more than 12 years. The right of the litigant in the latter situation would not come to an end at 12 years and it would abide by the law of limitation of the cause country which passed the decree. Hence, limitation would start running from the date the decree was passed in the cause country and the period of limitation prescribed in the forum country would not apply. In case the decree holder does not take any steps to execute the decree in the cause country within the period of limitation prescribed in the country of the cause, it cannot come to the forum country and plead a new cause of action or plead that the limitation of the forum country should apply.
Thus, in such circumstances the right to apply Under Section 44A will accrue only after the execution proceedings in the cause country are finalised and the application Under Section 44A of the Code of Civil Procedure can be filed within 3 years of the finalisation of the execution proceedings in the cause country as prescribed by Article 137 of the Act. The decree holder must approach the Indian court along with the certified copy of the decree and the requisite certificate within this period of 3 years.
We answer the third question accordingly and hold that the period of limitation would start running from the date the decree was passed in the foreign court of a reciprocating country. However, if the decree holder first takes steps-in-aid to execute the decree in the cause country, and the decree is not fully satisfied, then he can then file a petition for execution in India within a period of 3 years from the finalisation of the execution proceedings in the cause country.
The appeal was dismissed, and the orders of both the lower courts were upheld, though for different reasons.
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2020 (3) TMI 1471
Declaration as fraud by the respondent banks on various dates pursuant to the Reserve Banks of India (RBI) circular dated 01.07.2016 (as updated on 03.07.2017) without following the principles of natural justice - HELD THAT:- On steps being taken, notice shall issue to respondent nos.8 and 10 via all permissible modes.
Renotify the matter on 23.07.2020.
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2020 (3) TMI 1470
Addition of money payment for purchase of plot - undisclosed investment of on-money paid - not allowing assessee to cross examine witnesses by adjudicating authority though statements of those witnesses were made as basis of impugned order - HELD THAT:- Addition made by AO merely on the basis of statement, when there is no corroborative material with AO suggesting the alleged addition, without allowing assessee an opportunity to cross examine the person on whose statement addition was made. Accordingly, AO is directed to delete the addition so made. See ANDAMAN TIMBER INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II [2015 (10) TMI 442 - SUPREME COURT]. Appeal of the assessee is allowed.
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2020 (3) TMI 1469
Reopening of assessment u/s 147 - investment towards purchase of plot as unexplained - HELD THAT:- The assessment was reopened on the basis of statement of Shri Madan Mohan Gupta recorded during the search at his business premises and also on the basis of documents found during the course of search. So far as the reopening is concerned, we found that after recording speaking reasons, the AO concluded that the income has escaped assessment. Accordingly, no infirmity in the order of the AO for reopening of the assessment.
Addition u/s 69 - As decided in Dhirendra Singh [2019 (3) TMI 2029 - ITAT JAIPUR] wherein held addition made by AO merely on the basis of statement, when there is no corroborative material with AO suggesting the alleged addition, without allowing assessee an opportunity to cross examine the person on whose statement addition was made. Accordingly, AO is directed to delete the addition so made - Decided in favour of assessee in part.
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2020 (3) TMI 1468
Addition u/s. 14A of the Act while computing book profit u/s. 115JB - 'Leave to Amend' sought wanted to delete some portion of the proposed Question No.2(b) - Inadvertently in the order passed by this Court in THE PRINCIPAL COMMISSIONER OF INCOME TAX, VADODARA-1 VERSUS GUJARAT URJA VIKAS NIGAM LTD. [2020 (3) TMI 232 - GUJARAT HIGH COURT], “Leave to amend” is not ordered and the entire question as proposed has been incorporated. The proposed Question No.2(b), which is to be incorporated in the order should read as under:
“ Whether in the facts and circumstances of the case, the learned ITAT has erred in law and on facts in deleting the addition under Section 14A of the Act while computing book profit under Section 115JB of the Act?”
HELD THAT:- The order dated 17.02.2020 shall incorporate words “Leave to Amend” and also, substitute Question No.2(b) as above. The Registry shall effect necessary correction and issue a fresh writ of the order.
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2020 (3) TMI 1467
Restraint on Appellants from transferring, alienating or creating any charge on the property - seeking direction to Appellants to handover the vacant and peaceful possession of the property to the Liquidator within 15 days - HELD THAT:- Till passing of the order (in C.A No. 266 of 2020 dated 07.01.2020) by the Adjudicating Authority taking the possession of the aforesaid property by the Liquidator is hereby stayed.
Appeal disposed off.
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2020 (3) TMI 1466
Maintainability of appeal against the interlocutory order - Norms to be maintained with regard to evaluation of answer papers - HELD THAT:- On going through the order which is under challenge, it is clear that it is not the main relief as prayed for, but an 'interim order' observing that the particular question answered by the writ Petitioner was not evaluated. The said evaluation could not have been done by the Court itself, in view of the various rulings and the matter had to be referred to the expert i.e. the evaluator, which alone has been done. Whether the said marks are to be added; whether any legal impediment is there in this regard; whether the evaluation done is right; whether secrecy has been maintained; whether it is in conformity with the binding precedents etc. are all matters to be decided after hearing both the sides, which is still to happen.
The scope and ambit of writ appeal against interlocutory order has been considered by a Full Bench of this Court in AJAY GUPTA VERSUS STATE OF CHHATTISGARH AND ORS [2017 (1) TMI 1827 - CHHATTISGARH HIGH COURT], where it has been observed that, unless the order concerned is having finality with regard to the prayers sought for, it is not maintainable.
The application for condonation of delay as well as writ appeal stand dismissed, without prejudice to rights and liberties of the parties to address the Court where the issue is pending on all grounds including the factual as well as the legal points.
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