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Showing 1 to 20 of 1633 Records
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2022 (3) TMI 1637
Validity of assessment order u/s 143(3)/143(3A) & 143(3B) on the ground of violation of principle of natural justice and that the impugned assessment order is non-speaking order - HELD THAT:-Learned advocate appearing for the respondents was given opportunity to produce the records/documents to show that any opportunity of personal hearing was given to the petitioner which the respondents failed. On perusal of the impugned assessment order, find the same is non-speaking also. Though this Court is very reluctant to entertain any writ petition against any assessment order which is an appeallable order, but in view of patent violation of principles natural justice and assessment order being non-speaking, am inclined to entertain this writ petition.
Considering the submission of the parties, this writ petition is disposed of by setting aside the aforesaid impugned assessment order dated 26th March, 2021 with the direction upon the respondents/assessing officer concerned to pass the assessment order afresh in accordance with law after giving an opportunity of personal hearing to the petitioner within 12 weeks from the date of communication of this order.
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2022 (3) TMI 1636
Revision u/s 263 - Unaccounted and excess stock found during the course of search - whether be assessed as business income at the rate of 30% - whether Tribunal is correct in law in endorsing the erroneous order of the A.O as an order after taking one of the possible views? - as decided by HC [2021 (9) TMI 424 - ANDHRA PRADESH HIGH COURT] elaborate explanations were offered by the assessees, which were fortifiable by consistent views by various Benches of the Tribunal as well as the High Courts - Assessing Officer, upon consideration, accepted the explanation and taxed the additional income as ‘business income’ @ 30% instead of 60% as per Section 115BBE of the Act - no case of perversity or lack of enquiry on the part of the Assessing Officer is made out so as to render his decision erroneous under Explanation 2 of Section 263 of the Act.
HELD THAT:- Petitioner would point out the statement made by the Managing Director of the respondent- assessee which indicates that the amount in question (Rs. 7,60,53,000/-) is declared on account of unexplained investment in Tobacco stocks of Deccan Tobacco Company. He also refers to the answer given by the same employee that as he is not in a position to explain the source of excess stock of 6,01,672 Kgs valuing to Rs. 7,60,53,000/- (Rate @ 126.40/- per Kg) found in the godowns of the Deccan Tobacco Company, he voluntarily offered the same as undisclosed income in the hands of the company.
Petitioner also would point that it is after the search that the balance sheet relied upon by the assessee came to be finalized. Therefore, he would submit that it is not a case where two opinions were possible based on which reasoning both the ITAT and the High Court has interfered with the proceedings u/s 263 of the Income Tax Act, 1961.
Issue notice.
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2022 (3) TMI 1635
TP Adjustment - Comparable selection - HELD THAT:- Caliber Point Business Solutions Ltd. and R. Systems International Ltd. have been excluded on the ground that, the Companies are having different financial ending and also non availability of coverage and reliability of data necessary for application of the method. In our opinion, the said exclusion has been done by the TPO/DRP/AO in strict compliance with Rule 10B (4) and Rule 10C (2) (c) of the Rules and based on the settled principles of law, therefore the same requires no interference. Accordingly we reject the Assessee's Appeal Grounds No. 5 to 8.
BNR Udyog Ltd. be excluded as it provides medical transcription services, which is not comparable to ITeS Service Provider.
E-Clerx Services Ltd. had a different revenue recognition policy outsourcing expenditures having different business models and the same is non-comparable by applying principal laid down in the case of Rampgreen [2015 (8) TMI 931 - DELHI HIGH COURT] Thus we found that the E-Clerx Services Ltd. becomes non comparable while computing ALP.
Infosys BPO Ltd. company is having higher brand value and engaged in areas like insurance, banking, financial services, manufacturing and telecom which are in the niche areas unlike the assessee, thus be excluded.
TCS E-serve Ltd. Company deserves to be excluded, which provides KPO Services in the nature of core business processing services analytics and insides as well as support service for both data and voice process, therefore, the same is not a comparable.
Interest on inter-company receivables - Realization of sale/service proceeds - international transactions and not an international transaction per-se - HELD THAT:- Adjustment made by the TPO towards interest on receivables, which is well within the definition of international transaction. Therefore, we are not agreeing with the submission of the Ld. Counsel for the assessee.
Interest at LIBOR plus 400 bps - It would be noted that the decision of Hon'ble Delhi High Court in the case of Kusum Healthcare [2017 (4) TMI 1254 - DELHI HIGH COURT] is still the binding precedent on the issue of interest on outstanding receivables as held inclusion in the Explanation to Section 92B of the Act of the expression "receivables" does not mean that de hors the context every item of "receivables" appearing in the accounts of an entity, which may have dealings with foreign AEs would automatically be characterized as an international transaction and (ii) With the Assessee having already factored in the impact of the receivables on the working capital and thereby on its pricing/profitability vis-à-vis that of its comparables, any further adjustment only on the basis of the outstanding receivables would have distorted the picture and re-characterized the transaction. Ergo, Assessee's Grounds of Appeal No. 13 and 14 are being allowed.
Grant foreign taxes credit in accordance with law, after verifying the records.
Appropriate MAT credit in accordance with law after verifying the records.
Charging interest u/s. 234C is consequential and mandatory in nature, which does not requires adjudication.
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2022 (3) TMI 1634
Method of recognizing income on hire purchase contracts - HELD THAT:- For income tax purpose, the assessee continued to follow ESM method as done in earlier years. Such change resulted in hire purchase finance charges on ESM basis being higher than the income recognized on IRR method in the books to the tune. Accordingly, the same was added back by the assessee while computing the taxable income. As submitted that the finance charges on hire purchase transactions were taxed on IRR method in earlier assessment years and assessee’s appeal against the same was pending before Hon’ble High Court. However, for the sake of consistency in the assessments, the excess hire purchase income offered on ESM basis was to be deducted from the taxable income. However, rejecting the same, AO noted that the issue had not reached finality and further similar treatment was give in assessment order for AY 2005-06. Therefore, the plea to reduce the taxable income by Rs. 483.52 Lacs was not accepted. CIT(A), following the decision of Tribunal for AY 2001-02 confirmed the stand of Ld. AO against which the assessee is in further appeal before us.
We find that this issue is covered by the latest order of Tribunal [2019 (9) TMI 974 - ITAT CHENNAI] The bench, considering the decision of Hon’ble High Court of Madras in assessee’s own case [2019 (3) TMI 1068 - MADRAS HIGH COURT] directed Ld. AO to tax the interest income on EMI method or ESM method which has been consistently being followed by the assessee and allow consequential relief in accordance with law. Since facts as well as issue is pari-materia the same in this year, we issue similar directions to Ld. AO in this year. Reduction claimed by the assessee would not be allowed and continue to be added to the income in the computation of income. The grounds thus raised stand allowed for statistical purpose.
Provision for reversal of NPA - assessee made provision for non-performing assets (NPA) as per directions of RBI - HELD THAT:- We find that what the assessee is claiming is that the reversal should not be included in total income on the ground that provisions were not allowed in earlier years. We also find that this issue has been set-aside by Tribunal [2019 (9) TMI 974 - ITAT CHENNAI] The bench observed that the assessee’s claim would require verification and therefore, the matter has been remitted back to the file of AO for fresh consideration after affording opportunity of hearing to the assessee.
Recovery of Bad debts written-off in the books of amalgamating companies - assessee reduced taxable income being amount recovered out of bad-debts written-off in the books of amalgamating companies on the ground that it was exempt / nontaxable - HELD THAT:- As after amalgamation, the assessee has all the rights as well as liabilities of amalgamating company which were transferred to it. Such recoveries of bad-debts were nothing but business receipts for assessee and therefore, assessable in its hands. Respectfully, following the same, we dismiss the grounds urged by assessee, in this regard.
Business Origin Cost - We find that this issue has been dealt with by Tribunal in [2019 (9) TMI 974 - ITAT CHENNAI] chose to follow the decision of Taparia Tools Pvt. Ltd. [2015 (3) TMI 853 - SUPREME COURT] wherein it was held that normally revenue expenditure incurred in a particular year has to be allowed in that year and if the assessee claims the full expenditure, department could not deny the same. Finally, the claim was allowed. Therefore, this issue is covered in assessee’s favor.
Amortization of expenditure - AO denied the deduction. CIT(A) held that since the claim was rejected in earlier years, the reversal of the same during this year was to be given credit. Accordingly, AO was directed to entertain the claim. Aggrieved, the revenue is in further appeal before us. Since we have allowed the assessee’s claim in full in the year of incurrence as per assessee’s computation of income, the credit of reversal would not be available to the assessee in this year. Therefore, this ground raised by the revenue stand allowed.
Disallowance u/s 40(a)(i) - assessee did not deduct tax at source on the ground that the expenses were incurred by overseas branch and the payments were not taxable in India - As there was no obligation of withholding tax liability - HELD THAT:- As submissions of DR were that the services in that year was utilized outside India which is not the case in this year. Considering the rival submissions, we remit this issue back to the file of Ld. AO to bring on record correct factual matrix and re-adjudicate the same after affording opportunity of hearing to the assessee.
Broken period interest on sale of securities - assessee was in regular sale and purchase of Government securities - transactions were classified as investment - HELD THAT:- We find that this issue is subject matter of Tribunal order [2019 (9) TMI 974 - ITAT CHENNAI]. The coordinate bench, at para 9.5 of the order, observed that CIT(A) did not appreciate the facts of the issue properly. The courts have held that if the securities are regularly purchased and sold, they could be stock-in-trade. Therefore, the matter was remitted back to the file of AO for fresh examination with a direction to the assessee to place all the material before Ld. AO. Since facts are similar in this year and with a view to enable revenue to take consistent stand in the matter, we remit this issue back to the file of AO on similar lines. As per chart placed before us, this issue also arises in revenue’s appeal.
Depreciation on UPS - assessee claimed depreciation on UPS system @60% considering the same to be part of computer block - HELD THAT:- CIT(A), following the decision of this Tribunal [2014 (2) TMI 224 - ITAT CHENNAI] in the case of Sundaram Asset Management Co. Ltd., directed Ld. AO to allow depreciation @60%.
Grant of indexation benefit by CIT(A) to the assessee on government securities holding that Bonds and Debentures are distinguishable from government securities - AO denied the same on the ground that all capital assets which are in the nature of debt instruments, excluding capital indexed bonds issued by Government, was not eligible with the insertion of third proviso to Sec. 48 - HELD THAT:- The bench observed that government securities are not excluded from the definition of capital assets. As per Sec. 2(42A), the expression ‘securities’ shall have the meaning as assigned in Clause-11 of Securities Contract Regulation Act, 1956 which includes government securities. It was thus concluded by the bench that bonds and securities are distinguishable. The bonds are not freely tradeable whereas the securities are freely tradeable. The Bonds could not be equated with securities. Further, from plain reading of 3rd proviso to Sec. 48. government securities were not excluded for indexation benefit and only bond or debentures were excluded. Accordingly, the revenue’s grounds were dismissed. We find that similar is the issue in both the appeals of the revenue.
Disallowance u/s 14A - HELD THAT:- As submissions of Ld. AR are two-fold i.e., own funds are more than the investment and therefore, no interest disallowance should be made. Secondly, the 0.5% as per Rule 8D(2)(iii) should be computed only on those investments which have yielded exempt income during the year. We concur with both the submissions. AO is directed to verify whether assessee’s own funds are sufficient enough to cover the investment. If so, interest disallowance would not be justified. The indirect disallowance of 0.5% should be computed only on those investments which have yielded exempt income during the year. The grounds, in all the three years, stand allowed for statistical purposes.
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2022 (3) TMI 1633
Deduction u/s 80P(2)(d) - interest income earned by the Appellant, a co-operative housing society, from co-operative banks - HELD THAT:- As decided in Totgars Cooperative Sale Society Ltd. [2010 (2) TMI 3 - SUPREME COURT] the benefit of Section 80P(2)(a)(i) would not be available in respect of interest income as the same is not in the nature of “profits and gains of business”. However, unlike Section 80P(2)(a) of the Act wherein expression “profits and gains of business” has been used, Section 80P(2)(d) of the Act uses the expression “any income by way of interest or dividend” for the purpose of granting benefit of deduction under Section 80P(2)(d) of the Act what is relevant is that the income should be by way of interest/dividend, and that the same should have been derived by a co-operative society from investment in another co-operative society. The fact that such interest income is in the nature of “profits and gains” or “income from other sources” is not relevant for the purpose of granting benefit of deduction under Section 80P(2)(d) of the Act.
In conclusion, we hold that the judgment of Totgars Cooperative Sale Society Ltd. (supra), rendered in the context of Section 80P(2)(a) of the Act (wherein expression “profits and gains of business” has been used), is distinguishable on facts. The aforesaid judgment is not applicable to the facts of the present case as deduction has been claimed under Section 80P(2)(d) of the Act (wherein expression “any income” has been used).
Impact of insertion of Section 80P(4) of the Act is that a co-operative bank would no more be entitled for claim of deduction under Sec. 80P of the Act, however, the interest income derived by a co-operative society from a co-operative bank would continue to be eligible for deduction u/s 80P(2)(d) of the Act irrespective of the fact that such interest income is in the nature of “profits and gains of business” or “income from other sources” as Section 80P(2)(d) uses the expression “any income” and not “profits & gains of business).
Accordingly, the Appellant is entitled to claim deduction u/s 80P(2)(d) of the Act in respect of interest received from co-operative banks derived from a co-operative bank. However, benefit of Section 80P(2)(d) would not be available in respect of saving bank interest of INR 41,446/-. Accordingly, Ground No. 1 is partly allowed and addition made by the AO stand deleted.
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2022 (3) TMI 1632
Seeking grant of Regular bail - bribing - continuation of proceedings in India against the applicant, who was acquitted in Italy - double jeopardy - principles of issue estoppel and res judicata - trial of offences other than for which he was extradited - Doctrine of Specialty - applicant was subject of rendition and kept in illegal custody by the CBI.
HELD THAT:- Article 21 of the Constitution of India guarantees a right to personal liberty to every person, and thus, time and again, it has been opined by Courts across the country that bail is the rule and jail an exception. Besides reiterating this view, the Supreme Court in Sanjay Chandra [2011 (11) TMI 537 - SUPREME COURT] has further laid down that both factors, i.e., severity of the punishment and gravity of the offence, have to be simultaneously weighed while determining whether or not to grant bail to an accused.
Subsequently, in P. Chidambaram v. Directorate of Enforcement [2019 (12) TMI 186 - SUPREME COURT], the Supreme Court, after going through the entire conspectus of law on the aspect of determining factors to be taken into account at the time of consideration of bail, has observed that one of the circumstances to consider the gravity of offence is the term of sentence, which has to be kept in mind besides the triple test.
Coming to the facts of the case, it is noted that the applicant is stated to be the key accused. He is accused of having played a pivotal role in the entire case, being a middleman engaged by M/s AgustaWestland for obtaining confidential information regarding the procurement process of VVIP helicopters by the Government of India. As per the allegations, one J.B. Subramanian was engaged by the applicant for typing and sending dispatches/reports in relation to developments in the procurement process to co-accused persons. One of such reports dated 10.04.2008, which was sent to Giuseppe Orsi, Giacomino Saponaro and others, contained material particulars of the process - the apprehensions of the applicant influencing witnesses/tampering with evidence are not supported by any material placed on record, and on this aspect, mere pendency of LRs or further investigation is of no consequence. In this regard, the Supreme Court in P. Chidambaram v. Central Bureau of Investigation [2019 (10) TMI 879 - SUPREME COURT] and Sanjay Chandra [2011 (11) TMI 537 - SUPREME COURT] has also observed that mere apprehension of the accused influencing witnesses/tampering with evidence, without any material supporting the allegations, cannot be a basis to keep him in jail.
Although, merely because an accused is a foreign national, bail cannot be denied as a matter of course, but at the same time this Court cannot lose sight of the aforementioned facts which indicate as to how the applicant has evaded investigation in the present case. It is also worthwhile to take into account that the applicant could be brought to India only after going through the process of extradition, which in fact was vehemently opposed by him, as apparent from the judgment of the Dubai Supreme Court. For the said reasons, the ground of parity is not available to the applicant in the opinion of this Court.
Conclusion - Considering the peculiar facts and circumstances of the case, including the factum of the applicant evading process/investigation in India/Italy and eventually having been extradited to India, this Court is of the opinion that the applicant, having no roots in the Indian society, is a flight risk.
Accordingly, the present bail application is dismissed.
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2022 (3) TMI 1631
Declaration of the property of 'Hotel Alka Raje' to be the property of the firm - HELD THAT:- A plain reading of the statutory provisions clearly shows that any property which is brought on the stock of the firm becomes a perpetual property of the firm for all legal consequences. To this extent, the legal position is clear and any grievance raised to the contrary is misconceived.
Appeal disposed off.
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2022 (3) TMI 1630
Bogus purchases - bogus accommodation bills - estimation of income - hawala transactions from certain parties who were only providing accommodation sale bills - HELD THAT:- Substantial question of law in these appeals are squarely covered in the order of M/s. Moammad Haji Adam & Co. [2019 (2) TMI 1632 - BOMBAY HIGH COURT] and M/s. Paramshakti Distributors Pvt. Ltd.[2019 (7) TMI 838 - BOMBAY HIGH COURT] as held purchases cannot be rejected without disturbing the sales in case of a trader. Tribunal, correctly restricted the additions limited to the extent of bringing the G.P. rate on purchases at the same rate of other genuine purchases - therefore the appeals can be disposed.
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2022 (3) TMI 1629
Doctrine of 'In pari delicto' - Refund of the Entry Fee paid for the 2G licences, which were quashed by the Supreme Court in the CPIL judgment, under the principles of civil, contractual, and constitutional law - Jurisdiction of Telecom Disputes Settlement and Appellate Tribunal (TDSAT) to entertain the appellant's claim for a refund of the Entry Fee - HELD THAT:- The appellant was in pari delicto with DoT and the then officials of the Union government. The appellant was the beneficiary of the “First Come First Serve” policy which was intended to favour a group of private bidding entities at the cost of the public exchequer. The contention of the appellant that it was exculpated from any wrong doing by the judgment of this Court in CPIL [2012 (2) TMI 568 - SUPREME COURT] is patently erroneous. The process leading up to the award of the UASLs and the allocation of the 2G spectrum was found to be arbitrary and constitutionally infirm. The need for an open and transparent bidding process for the allocation of natural resources was substituted by a process which was designed to confer unlawful benefits on a group of selected bidders by which the appellant benefitted. The appellant has tried to obviate these findings by relying on its acquittal by the Special Judge, CBI. It is important to note that the criminal trial before the Special Judge, CBI was limited to the question as to whether the promoters of the appellant had cheated the DoT by providing a false representation of its compliance with Clause 8 of the UASL Guidelines, since it was allegedly being controlled by the Essar group. The Special Judge, CBI acquitted the promoters of the appellant since the prosecution was unable to prove that: (i) officers of DoT considered the representation of the appellant to be false; (ii) the appellant was engaging in a sham transaction; or (iii) the appellant was actually controlled by the Essar group. Hence, the acquittal of the promoters of the appellant of these criminal charges does not efface or obliterate the findings which are contained in the final judgment of this Court in CPIL. Hence, as a beneficiary and confederate of fraud, the appellant cannot be lent the assistance of this Court for obtaining the refund of the Entry Fee. In any event, such a course of action before the TDSAT was clearly in the teeth of the judgment of this Court in CPIL.
Conclusion - The appellant is not entitled to a refund of the Entry Fee. TDSAT correctly concluded it lacked jurisdiction. The set-off policy is not discriminatory or arbitrary.
There is no merit in the appeals. The appeals are accordingly dismissed.
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2022 (3) TMI 1628
Conviction of accused of the offences punishable Under Sections 363, 366-B, 370(4) and 506 of the Indian Penal Code, and Under Section 8 of the POCSO Act - satisfaction of requirements Under Section 188 of the Code of Criminal Procedure, 1973 or not - no allurement which was extended by the Appellant and the victim had gone from Kathmandu to Atariya covering the distance of more than 650 kms. on her own - age of the victim beyond 18 years of age - offence would come Under Section 370(4) of the Indian Penal Code.
Satisfaction of requirements Under Section 188 of the Code of Criminal Procedure, 1973 or not - HELD THAT:- In terms of Section 188, even if an offence is committed outside India, (a) by a citizen whether on the high seas or anywhere else or (b) by a non-citizen on a ship or aircraft registered in India, the offence can still be tried in India provided the conditions mentioned in said Section are satisfied. The Section gets attracted when the entirety of the offence is committed outside India; and the grant of sanction would enable such offence to be enquired into or tried in India.
As the facts and circumstances of the case indicate, a part of the offence was definitely committed on the soil of this country and as such going by the normal principles the offence could be looked into and tried by Indian courts. Since the offence was not committed in its entirety, outside India, the matter would not come within the scope of Section 188 of the Code and there was no necessity of any sanction as mandated by the proviso to Section 188.
Travel by victim - HELD THAT:- It is true that the victim had traveled on her own from Kathmandu to Atariya. However, the evidence on record completely establishes that she was lured into coming to India. The offences alleged against the Appellant were thus rightly invoked and fully substantiated.
Offence would come Under Section 370(4) of the Indian Penal Code due to age of the victim beyond 18 years of age - HELD THAT:- The evidence on record is absolutely clear that the age of the victim was below 18 years of age. The medical board had not only done the radiological tests but had also undertaken dental test on the basis of which her age was found to be below 18 years - In the circumstances, Sub-section 4 of Section 370 Indian Penal Code would definitely get attracted. Said Section 370(4) postulates minimum sentence of 10 years. Viewed thus, the sentences awarded to the Appellant cannot be termed to be excessive on any count.
Conclusion - i) Since the offence was not committed in its entirety, outside India, the matter would not come within the scope of Section 188 of the Code and there was no necessity of any sanction as mandated by the proviso to Section 188. ii) It is true that the victim had traveled on her own from Kathmandu to Atariya. However, the evidence on record completely establishes that she was lured into coming to India. The offences alleged against the Appellant were thus rightly invoked and fully substantiated. iii) Said Section 370(4) postulates minimum sentence of 10 years. Viewed thus, the sentences awarded to the Appellant cannot be termed to be excessive on any count.
Affirming the view taken by the High Court, the appeal is dismissed.
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2022 (3) TMI 1627
Permission to file paper return of income - Petitioner states that the last date to file return is 15th March, 2022 and therefore for the moment petitioner should be permitted to file paper return of income for A.Y. 2021-22 subject to final outcome in the petition - HELD THAT:- In our view, this interim relief stated by petitioner has to be granted. Therefore, Ad-interim relief, in terms of prayer clause – (e) is granted which reads as under :
(e) that pending the hearing and final disposal of this petition, the Petitioner be permitted to file a paper return of income for the assessment year 2021-22, subject to the final disposal of the Petition.
Stand over to 22nd March, 2022.
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2022 (3) TMI 1626
Approval of Resolution Plan - Section 31 of the IBC - HELD THAT:- It is a matter of record that the main petition i.e. CP (IB) No. 122/Chd/HP/2019 was admitted on 23.12.2019 and IRP was appointed, who invited claims by making public announcement in Form A and the last date for submissions of claims were mentioned as 05.01.2020. However, the applicant has submitted its claim on 18.11.2020 in accordance with Regulation 7(1), much beyond the stipulated time. It is matter of record that RP has already issued IM to resolution applicant on 17.10.2020.
The claim made after the resolution plan has already been received by the Resolution Professional. At that belated stage, if such type of applications are allowed, the resolution plans already received by the COC from the prospective resolution applicants, may get failed, as those are filed on the basis of Information Memorandum (IM). The Prospective Resolution Applicants submitted their resolution plan on the basis of their financial capacity and availability of funds - If such claim is accepted, then the Resolution Applicants have to make corrections in their plans, that apart, RP has to make corrections in the IM and its report, correction in the stakeholder list, etc., for which RP has to take permission from this Adjudicating Authority, which may further delay the CIRP. Moreover, CIRP cannot be allowed/extended beyond upper limit of 330 days, in that event the corporate debtor would be compelled to go for liquidation.
There is every likelihood that the Resolution Applicants may withdraw their plan, as it will be a burden with other huge claims of the creditors, which they might have not planned earlier, while working out the resolution plan based on the Information Memorandum. Thus, under such situation, the corporate debtor may be pushed for liquidation - Application dismissed.
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2022 (3) TMI 1625
Taxability - Undenatured ethyl alcohol of any alcoholic strength (including neutral and extra neutral alcohol) when used in the production of alcoholic liquors for human consumption - C Forms - F Forms - HELD THAT:- From the evaluation of various provisions of the CST Act, 1956, CST Rules, 1957, or the Goa Rules, 1973 it is clear that the subject of issuance of C and F Forms is squarely governed by the statutory provisions that prescribe not only the authorities competent to issue these forms but also the conditions subject to which such forms are to be issued. Admittedly, the OM dated 21.04.2021 is like an executive instruction. Such an executive instruction cannot interfere with the statutory provisions or introduce any additional conditions of furnishing the impugned undertaking, when in fact the statutory provisions do not provide or contemplate the issuance of any such undertaking.
The Court after analyzing and listing the conditions prescribed by the CST Act, 1956, CST Rules, 1957, and the Jharkhand Rules, 2006 proceeded to formulate the conditions that a dealer is required to fulfill before he can insist upon the State issuing the C Form. The High Court then concluded that once these conditions are fulfilled, there is a corresponding duty on the State to issue the C Forms and further, the State authorities cannot refuse the C Forms at the whims and caprice of the officers of the State. The High Court held that sometimes, over-anxious officers of the State fall in the track (sic) of looking at the nature of the transactions or looking to the uses of C Forms by the registered dealers and held that this is not permissible at the stage of issuance of C Forms. - The Court analyzed the various provisions and concluded that under the provisions of Section 8(1) of the CST Act read with Rule 8(4), a registered dealer has a right to obtain a declaration form from the prescribed authority to avail concession in payment of tax on inter-State transactions. Neither Section 8 of the Act nor Rule 12 imposes any restriction on the supply of "C” declaration form by the notified authority to a dealer registered under the Act. Under the provisions of Section 10 of the CST Act only if a person misuses the "C" form he is liable to a penalty. It is only Rule 6 of the CST (O) Rules which imposes certain restrictions on the supply of the “C“ declaration form.
It is quite apparent that the State upon perceiving that the statutory provisions may not be sufficient to protect its interests at revenue collection has virtually attempted to add to or alter the statutory provisions enacted by the Central Government. Merely styling such acts as filling the vacuum in the legislation or supplementing the legislative vacuum is not sufficient to mask the true nature of the exercise - the presumption of constitutionality that attaches to legislation does not extend to an executive act or an executive instruction like the OM in the issue.
The impugned direction and the impugned undertaking are declared ultra vires and the respondents are restraint from enforcing the same. As a consequence, it is directed that the respondents to consider petitioners' applications for issuance of C and F Forms in accord with the law but without insisting upon the petitioners furnishing the impugned undertaking - petition disposed off.
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2022 (3) TMI 1622
Challenge to auction process conducted by the Tehsildar Sales - High Court proceeded on the premise that the reasons adopted by the Financial Commissioner were based on conjectures and surmises - HELD THAT:- From the Scheme of Chapter III of Rules 1976, it is apparent and explicit that even if the public auction has been completed to the highest bidder, no right is accrued till the confirmation letter is issued to him as the acceptance of the highest bid is provisional, subject to its confirmation by the competent authority. Undisputedly, the competent authority (Sales Commissioner) has failed to confirm the bidding process and after recording its satisfaction cancelled the auction bid under its order dated 2nd July, 1993.
This Court has examined right of the highest bidder at public auctions in umpteen number of cases and it was repeatedly pointed out that the State or authority which can be held to be State within the meaning of Article 12 of the Constitution, is not bound to accept the highest tender of bid. The acceptance of the highest bid or highest bidder is always subject to conditions of holding public auction and the right of the highest bidder is always provisional to be examined in the context in different conditions in which the auction has been held - In the present case, no right had accrued to the Respondent even on the basis of statutory provisions as being contemplated Under Rule 8(1)(h) of Chapter III of the Scheme of Rules, 1976 and in terms of the conditions of auction notice notified for public auction.
Undisputedly, the provisional bid, in the instant case, was not confirmed by the competent authority (Sales Commissioner) and not being accepted after recording its due satisfaction by an order dated 2nd July, 1993 and the decision of the authority in passing the order of cancellation of the auction bid was scrutinized/examined by the appellate/revisional authority and the discretion exercised by the competent authority in taking decision of cancellation was upheld at later stages.
The High Court has recorded a finding to the contrary that the Appellants have failed to show any irregularity or illegality in the auction proceedings and in the absence whereof, the auction proceedings could not be held to be vitiated. The premise on which the High Court has proceeded in recording a finding, particularly, in the matters of auction of public properties is unsustainable in law and that apart, it is also not in conformity with the Scheme of auction of public properties as defined under Chapter III of Rules 1976 - the finding recorded by the High Court in the impugned judgment is unsustainable and deserves to be set aside.
Conclusion - The highest bidder has no vested right to have the auction concluded in his favour. The acceptance of the highest bid is provisional, subject to its confirmation by the competent authority.
Appeal allowed.
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2022 (3) TMI 1621
Reopening of assessment u/s 147 - demand of personal hearing for the petitioner - HELD THAT:- The advantage of giving a personal hearing is, this doubt that the concerned officer had that he was unable to discern from return of income what petitioner has submitted, would not have arisen. Therefore, we, without making any observations on merits of the case set aside the order which is impugned in the petition. The matter is remanded for de novo consideration and all rights and contentions of petitioner are kept open.
Jurisdictional Assessing Officer (JAO) shall also give a personal hearing to petitioner with atleast 7 working days advance notice. JAO shall permit petitioner to also make written submissions following the personal hearing.
If in the order, the JAO proposes to rely on any judgments or order passed by any Court or Tribunal, he shall provide a list thereof to petitioner alongwith the notice for personal hearing and give them an opportunity to deal with those judgments or distinguish those judgments and those submissions during the personal hearing.
JAO shall pass a well reasoned order by 30th June 2022 dealing with every submissions of petitioner and give complete reasons for the conclusions that he will be arriving at. The assessment proceedings will not be proceeded with for at least 30 days after passing the order on objections.
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2022 (3) TMI 1620
Application for intervention and impleadment - dues of the respondent no.1 have been cleared regarding which an application has also been filed before this Court - HELD THAT:- List the matter after five weeks.
In the meantime, status quo with regard to CRP process shall be maintained.
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2022 (3) TMI 1619
Seeking waiver of payment of stamp duty in respect of the assets inherited by the various parties - seeking cancellation of the notice received from the Registry of the High Court of Delhi, as also notice received from the Office of the Assistant Collector (Kalkaji), New Delhi - HELD THAT:- The issue of registration of family settlements is no longer res integra. If an understanding has been arrived at between the parties previously, and it is only written down in a document after the settlement has been arrived at, the same would not require registration. This is the settled position of law as is clear from KALE VERSUS DEPUTY DIRECTOR OF CONSOLIDATION [1976 (1) TMI 172 - SUPREME COURT].
The Division Bench of this Court has held in Nitin Jain v. Anuj Jain & Anr. [2007 (4) TMI 785 - DELHI HIGH COURT] that a memorandum recording an oral family settlement which has already taken place is not an instrument dividing or agreeing to divide property and is therefore, not required to be stamped.
Thus, it is clear that family settlements are not required to be compulsorily registered, and stamp duty is not required to be compulsorily paid in respect of the same, when the settlement has been arrived at initially as an oral partition and is thereafter put into writing for the purpose of information. Considering the said position, it is clarified that there is no requirement of valuation of the suit properties in the present case. The payment of stamp duty by the legal heirs of Late Sh. S.S. Walia and Dr. Urmila Walia shall stand waived. Notices issued by the various authorities shall also stand cancelled and withdrawn, without any further orders.
Decree sheet be drawn by the Registry, within a period of eight weeks, and compliance be reported.
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2022 (3) TMI 1618
Assessment u/s 153A - addition u/s. 68, disallowance of interest u/s 37, disallowance of commission expenses and also ad hoc disallowance @30% on labor charges and professions fee paid during the year - HELD THAT:- The addition made in these assessment orders passed by the assessing officer under section 153A without reference to any incriminating material found in search is not sustainable. Hence, we set aside the orders of authorities below and allowed the claim of the assessee and delete the addition. Since we have already directed to delete the addition of loan itself, the addition of commission and interest thereon disallowed are also directed to be deleted as the same are also without reference to any material foundering search. The appeal of the assessee allowed.
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2022 (3) TMI 1617
Reversal of acquittal rendered in favour of the Appellants - offence punishable Under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- A perusal of the judgment passed by the High Court does not show that the High Court had considered the matter from the perspective stated above. As a matter of fact, the High Court proceeded to consider the evidence on record straightaway without considering the reasons that had weighed with the Trial Court.
It is true that the personal search did not result in recovery of any contraband material but the non-compliance of requirement of affording an option, was one of the reasons which weighed with the Trial Court in disbelieving the case of the prosecution.
The assessment on facts made by the Trial Court was absolutely correct and did not call for any interference by the High Court - the judgment and order passed by the High Court is set aside - the order of acquittal recorded by the Trial Court is restored - appeal allowed.
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2022 (3) TMI 1616
Third Execution Petition (EP) - Seeking to enforce the decree against the Award Debtor by attaching assets held in the names of Respondents 2-17 - Enforceability of Foreign Awards as a decree of this Court - HELD THAT:- On perusal of Order XXI Rule 21, it is clear that the said provision relates to the initiation of execution proceedings against both the person and property of a judgment/award debtor simultaneously. The Award Holder herein does not seek simultaneous execution against the person and property of the Award Debtor. The scope of Order XXI Rule 21 CPC was examined in Ram Narayan Bhattad by a Division Bench of this Court, which concluded at paragraph 13 that it does not apply unless simultaneous execution against both the person and property of the judgment debtor is prayed for. Therefore, Order XXI Rule 21 CPC does not apply in this case.
In Ram Narayan Bhattad [2004 (3) TMI 834 - MADRAS HIGH COURT], a Division Bench of this Court held that leave should be obtained to simultaneously prosecute two execution petitions: one by the court issuing the decree and the other by the court to which the decree was transferred for execution. However, the said judgment turned on the fact that two courts were involved and, without following the process of obtaining leave, there is likelihood of injustice unless it is clear that the value of the asset, which is within the jurisdiction of the court to which the decree was transferred, was insufficient. By contrast, all three EPs are before this Court and the likelihood of injustice by recovering amounts in excess of the decree is non- existent. In these circumstances, it cannot be said that the filing of these petitions constitutes an abuse of process. Hence, Application for permission to prosecute the Third EP is liable to be allowed.
Whether the Award Holder has established that these Respondents are debtors of the Award Debtor or hold the shares as ostensible owners for and on behalf of the Award Debtor? - HELD THAT:- The prima facie evidence on record is sufficient to overrule the preliminary objections. Nonetheless, the Award Holder seeks orders in the nature of garnishment with regard to alleged debts due to the Award Debtor from third parties or by way of attaching shares or partnership interest allegedly held ostensibly in the names of third parties to the Foreign Awards and such third parties strongly deny the claims. In these circumstances, as prescribed in Order XXI, Rule 46C CPC, parties should be relegated to a trial to determine whether the Respondents are indebted to the Award Debtor and whether shares are held ostensibly by these Respondents with beneficial interest vested in the Award Debtor.
The preliminary objections are over ruled and it is held that the petition is maintainable - Application allowed.
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