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Showing 1 to 20 of 1396 Records
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2021 (4) TMI 1397
Validity of reassessment proceedings - writ petition challenging the assessment order and notice issued u/s 143(3) and 148 - HELD THAT:- The power of High Court under Article 226 is to scrutinize the process through which a decision is taken in consonance with the provisions of the Act and certainly, not the decision itself. This being the principles to be borne in mind, while considering the writ proceedings under Article 226 of the Constitution of India, a doubt raised by the Department regarding full and true disclosure of the facts by the assessee and if there are some materials to establish the same, the Authorities have to initiate action based on the concept of reason to believe and the assessee must co-operate for the assessment by defending his case and by availing the opportunities contemplated under the provisions of the Act.
Contrarily, if the High Court takes an exception with reference to certain facts and circumstances, then there is a possibility of escape from the clutches of Tax proceedings, which is certainly not preferable. Further, the Income Tax Authorities are experts and they must be provided with an opportunity to consider the defence as well as the materials identified, by affording an opportunity to the assessee.
In the present case, in proceedings which is reply to the objections for reopening of the assessment u/s 147, there is a clear finding by the Authority that "the AO had no time to verify with PHBL about the genuineness of the transactions. Write of bad debts is relating to business and is not eligible for set off against Capital Gains. Further, a finding is made that the assessee has waited for 4 years and conveniently claimed bad debts to be deducted from Capital Gains". These are all certain contra facts, which are all raised as grounds for reopening of the assessment as the Authorities have reason to believe that there was no true and full disclosure by the assessee, at the time of the original assessment.
This being the facts and circumstances, this Court is of the considered opinion that the respondents, after initiation of proceedings u/s 147 proceeded with reassessment and the assessment order was also passed on 04.10.2016 itself. Now four years lapsed and further, in respect of said assessment order, the petitioner has to approach the competent authority for redressal of grievances if any exists. WP dismissed.`
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2021 (4) TMI 1396
Addition u/s 68 - unexplained cash credit - share capital money receipt alleged to be a barter transaction - HELD THAT:- Shares were not issued for a consideration which was discharged in terms of money. The consideration was discharged by accepting the investments in the hands of the investors which were duly shown in their hands of the investors prior to the date of said transfer to the assessee company and thereafter duly shown in the balance sheet of the assessee.
Section 68 is not to be invoked where consideration is discharged by way of barter system and not by paying any sum of money. Thus direct the AO to delete the disallowance. Decided in favour of assessee.
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2021 (4) TMI 1395
Withdrawal of appeal - concerned Commissionerate of Central Goods and Service Tax submitted a list of cases including the present case which have been settled under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 and discharge certificate has been issued - HELD THAT:- It is found that since the case has been settled under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 the appeal lying pending in this tribunal shall be deemed to have been withdrawn in terms of section 127(6) of Chapter V of Finance (No.2) Act, 2019.
The appeal is disposed of as withdrawn.
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2021 (4) TMI 1394
Challenge to the impugned disqualification notification of the second respondent vide list of Disqualified Directors 164(2)(a) Companies Act 2013 - Phase III - disqualification for the period from 01.11.2018 to 31.10.2023 - permission to petitioner to get reappointed as Director of any company or appointed as Director in any company without any hindrance.
HELD THAT:- The notification dated 17.12.2018, which was uploaded in the website by the first respondent on 18.12.2018 was challenged on the strength of the judgment of this Court in Bhagavan Das case [2018 (8) TMI 436 - MADRAS HIGH COURT]. However, they were dismissed by this Court, and such orders were passed on 27.01.2020 and 10.02.2020, etc.
The said orders were put to challenge in a batch of writ appeals, which were dealt with by the Hon'ble First Bench of this Court in Meethelaveetil Kaitheri Muralidharan V. Union of India [2020 (10) TMI 595 - MADRAS HIGH COURT]. The Hon'ble Division Bench in the said order dealt with the powers of the RoC in the light of Sections 164 and 167(1) of the Companies Act, 2013 and Rule 14 of the Companies (Appointment and Qualifications of Directors) Rules, 2014 and also has elaborately considered as to whether the RoC is entitled to deactivate the Director Identification Number (DIN) by referring to the Rules 19, 10 and 11 of the said 2014 Rules.
Thus, following the decision of the Hon'ble First Bench of this Court in Meethelaveetil Kaitheri Muralidharan's case, the writ petition is allowed.
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2021 (4) TMI 1393
Withdrawal of the appeal as assessee has already opted for settlement of dispute for the year under Direct Tax Vivad Se Vishwas Scheme (VVS Scheme), 2020 - DR did not raise any objection against the same.
HELD THAT:- In view of foregoing, the appeal stand dismissed as withdrawn with a liberty to assessee to seek restoration of the appeal in case the aforesaid declaration filed under the scheme is not accepted, for whatever reasons.The appeal stand dismissed as withdrawn.
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2021 (4) TMI 1392
Jurisdiction of the Arbitral Tribunal to entertain claims against the appellant - Section 37 of the Arbitration and Conciliation Act, 1996 - Impleadment of the appellant as a party respondent in the arbitral proceedings - adjudication of the disputes arising only between the parties - award against a third party in respect of a private transaction not falling under bye-law 248 (a) would amount to lack of inherent jurisdiction or not - effect of the respondent not raising an issue of jurisdiction specifically under Section 16 of the Arbitration Act before the Arbitral Tribunal in case of the Arbitral Tribunal having inherent lack of jurisdiction.
HELD THAT:- There was no express or oral understanding given by the appellant that any amount lying to the credit of his account shall be adjusted against the account of the respondent no. 2. The question of adjustment of the credit balance lying in the account of the appellant by the respondent no. 1 with the debit balance of respondent no. 2 did not arise. Though the Arbitral Tribunal took cognizance of this Byelaws requiring express authority of a client for adjustment of the credit and debit balance as the case may be, the Arbitral Tribunal approved the illegal transfer of the credit balance of the appellant in the account of the respondent no. 2 without any express authority or otherwise in violation of Bye-law 247A and also the SEBI guidelines - The Arbitral Award ought to have been set aside by the learned Single Judge on the ground of such perversity or patent illegality.
The Arbitral Tribunal thus committed perversity and patent illegality by holding the appellant and respondent no. 2 as a family unit for the purpose of joint and several liabilities. Despite the fact that there were separate client code, separate contract notes and bills and separate bank accounts, the Arbitral Tribunal has also rendered a perverse finding that the broker member may not have seen other family members except their photographs on compulsory Broker Client Agreement Form.
The entire adjustment made by the respondent no. 1 by transferring the credit balance lying in the account of the appellant with the debit balance lying in the account of the respondent no. 2 with the respondent no. 1 was without any express authority which was mandatory before carrying out any such adjustment under Clause IX of the SEBI Guidelines - There was a separate loan agreement between the appellant and the respondent No. 1.
In view of Bye-law 248(a), neither there could be any tripartite agreement between the parties nor the respondent No. 1 produced any such Tripartite Agreement. Admittedly, the respondent no. 1 had not invoked the arbitration agreement between the appellant and the respondent no. 1 and had illegally clubbed the two separate causes of action in the same arbitration by invoking arbitration agreement only between the respondent no. 1 and the respondent no. 2.
In this case, the appellant who was impleaded as a party respondent had raised an objection that there was misjoinder of parties and no reliefs could be granted against the appellant by the arbitral tribunal in those proceedings - even if the appellant had entered into any such oral understanding with the respondent no. 1 to clear the dues of the respondent no. 2, respondent no. 1, such alleged understanding given by the appellant would not fall within the purview of Bye-law 248(a). No third party even by consent of the party could be impleaded as a party respondent to the arbitral proceedings under the said Bye-law 248(a) which was admittedly a statutory arbitration.
In this case, admittedly the respondent no. 1 did not invoke the arbitration agreement between respondent no. 1 and the appellant. The cause of action between the respondent nos. 1 and 2 was arising out of the transactions allegedly having taken place between the respondent nos. 1 and 2 on the floor of the stock exchange, Mumbai, whereas the cause of action between the appellant and the respondent no. 1 was totally different and was a private transaction. The arbitral tribunal could not have allowed the respondent no. 1 to mix up the two separate causes of action in the statement of claim filed by the respondent no. 1, when one cause of action out of two was outside the purview of arbitration clause.
There is no merit in the submission of the learned senior counsel for the respondent no. 1 that various findings of the facts rendered by the Arbitral Tribunal in this case were rightly not interfered with by the learned Single Judge. In our view, the learned Single Judge ought to have set aside the award on the ground of inherent lack of jurisdiction. Be that as it may, the findings rendered by the Arbitral Tribunal being totally perverse and contrary to bye-laws, rules and regulations of Stock Exchange, Mumbai, award was liable to be set aside on that ground itself.
The respondent no. 1 had not made any claim against the appellant as the constituent arising out of two separate accounts, but had filed claim against two separate constituents in the same statement of claim based on two separate causes of action - The alleged cause of action between the respondent No. 1 and the appellant being a private transaction not covered by the said Bye-law 248(a) could not be adjudicated under the said Bye-law. Merely because the appellant was also impleaded as a constituent in the statement of claim along with the respondent no. 1, such pleadings would not confer the jurisdiction upon the arbitral tribunal.
A perusal of the record clearly indicates that the appellant was not sued on the basis of transactions on the floor of the exchange between the appellant and the respondent no. 1 but on the basis of an oral understanding/oral guarantee on behalf of the appellant given to the respondent no. 1 for clearing the dues of the respondent no. 2, if any, payable to the respondent no. 1. Appellant could not be impleaded based on an oral arbitration agreement in alleged oral understanding between the appellant and the respondent no. 1. Mr. Jagtiani, learned senior counsel for the respondent no. 1 fairly accepted that the arguments advanced by him in this appeal are contrary to the findings recorded and the observations made by the learned Single Judge. Since the entire award was without jurisdiction and shows perversity, learned Single Judge ought to have interfered with the impugned award rendered by the Arbitral Tribunal.
The impugned award dated 26th February, 2004 passed by the Arbitral Tribunal is set aside qua the appellant. Counter claim filed by the Appellant is without jurisdiction - the impugned order dated 23rd August 2005 passed by the learned Single Judge is set aside.
Petition allowed.
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2021 (4) TMI 1391
Reopening of assessment u/s 147 - objections filed by the petitioner are not addressed - HELD THAT:- This petition u/Article 226 of the Constitution of India, the petitioner has challenged the notice issued by the respondent u/s 148 of the Income Tax Act, 1961. Petitioner further asserted that even though the objections have been filed, without dealing with the same, assessment proceedings has been initiated.
Hence, notice returnable on 28.04.2021. Meanwhile, by way of ad-interim relief, respondent shall not proceed further with the assessment proceedings without dealing with the objections filed by the petitioner. Direct service is permitted.
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2021 (4) TMI 1390
Withdrawal of appeal - Sabka Vishwas (Legacy Dispute Resolution Scheme), 2019 - issuance of discharge certificate - HELD THAT:- It is found that since the case has been settled under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 the appeal lying pending in this tribunal shall be deemed to have been withdrawn in terms of section 127(6) of Chapter V of Finance (No.2) Act, 2019.
The appeal is disposed of as withdrawn.
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2021 (4) TMI 1389
Dishonour of Cheque - main contention of the accused is that those two cheques were given as security and not towards debt or liability - Whether the Trial Judge has committed an error in acquitting the accused for the offence punishable under Section 138 of NI Act and whether it requires interference of this Court? - HELD THAT:- The payment is not disputed and also the issuance of the cheque is not disputed. It is also important to note that the dispute is in respect of the fact that he received an amount of Rs. 10 Crores to procure the land in favour of the complainant. In the cross-examination, the accused categorically admits that the land in Sy.No.114 of Arekere Village (old Sy.No.34) is shown as “kere angala”. Hence, it is clear that the property which has been shown in the document belong to the Government. However, he contend that he has purchased the land to the extent of 7 acres and odd and in respect of the said property also, he has not given any documents of clear title in respect of the said property. It is also important to note that the issuance of the cheque has not been disputed, but the only contention taken in the evidence and also in the defence is that the cheques were given as security. In order to probablize the case of the accused, no materials are placed before the Court in support of the contention that the cheques were given as security.
On perusal of the records also, there is no any written document of agreement between the parties and though the document is placed before the Court that the cheques were given as security, but the fact that the amount of Rs. 10 Crores was received in order to procure the land in favour of the complainant is not in dispute. The fact that cheques were dishonoured and the endorsement was issued and thereafter, notice was issued and no payment was made in compliance of the demand is also not in dispute - Since the accused has admitted the issuance of the cheque and also the transaction, in the absence of the probable material before the Court, the accused has failed to prove his case on the preponderance of probabilities before the learned Magistrate.
When the ingredients of the offence under Section 138 of NI is complied, the complainant also initiated the suit and the same has been decreed and an appeal is pending before this Court, both the proceeding are independent proceedings. The very conclusion of the learned Magistrate that cheques were issued for security is also erroneous. Without any material, the learned Magistrate has come to the conclusion that the cheques were issued towards the security and not for payment of debt or other liability and when the accused has accepted the receipt of Rs. 10 Crores from the complainant, the very reasoning given by the learned Magistrate requires to be interfered with by this Court. However, while sentencing the accused, this Court has to take note of the fact that the respondent herein is facing both criminal as well as civil proceedings whereas the civil suit has been decreed and the appeal is pending before this Court. The Court can give set-off as contemplated under Section 357(5) of Cr. P.C., if any amount is paid in view of the subject matter, in any proceedings initiated against the appellant.
The judgment of acquittal passed by the learned Magistrate is hereby set aside and the accused is convicted for the offence punishable under Section 138 of the NI Act - Appeal allowed.
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2021 (4) TMI 1388
Dishonour of Cheque - judgement of acquittal - rebuttal of presumption under Section 139 of the N.I.Act - Whether the impugned judgment of acquittal passed by the Appellant Court calls for any interference and needs to be set aside by restoring the Judgment of conviction and order of sentence passed by the Trial Court? - HELD THAT:- The Trial Court after taking into consideration the materials on record convicted the accused for the offence punishable under Section 138 of the N.I. Act. But however, the Appellate Court acquitted the accused on the sole ground that the complainant ought to have been filed in the name of ‘Uma Shankar Auto Fuels, Sirsi’ represented by its Proprietor or any other responsible person and since that is not done, there is inherent defect in the complaint which is not noticed by the Trial Court and hence, the impugned Judgment of conviction suffers from legal lacuna.
The Appellate Court committed an error in assuming that the proprietary concern- ‘Uma Shankar Auto Fuels’, is not a proprietary concern represented by its proprietor or any other responsible person. It has committed an error in observing that there is defect in the complaint and the impugned judgment passed by the Trial Court suffers from legal lacuna. Absolutely there is no reason or basis for the Appellate Court to form such an opinion. I do not find any support to uphold the said findings.
The accused who admitted the cheque-Ex.P1 and his signature found therein is duty bound to rebut the presumption under Section 138 of the N.I.Act. Even though the accused examined himself as DW1 and got marked Exs.D1 to D3 in support of his contentions, the same are not helpful to rebut legal presumption. The tenor of cross examination to PW1 is entirely different from the contention taken by the accused while examining himself as DW1. Accused who admitted his signature found on Ex.P1, is not successful in rebutting the presumption and therefore, he is liable to be convicted.
There are no illegality or perversity in the said findings. The findings given by the Appellate Court is not sustainable - appeal allowed.
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2021 (4) TMI 1387
Refund of unutilized cenvat credit lying in cenvat credit account - denial on the ground that at the time of availment of cenvat credit, the appellant was not registered with the service tax department - input services or not.
Whether the appellant is required to get himself registered before taking cenvat credit? - HELD THAT:- The issue has been settled by the Hon’ble Karnataka High Court in the case of MPORTAL INDIA WIRELESS SOLUTIONS (P.) LTD. VERSUS COMMISSIONER OF SERVICE TAX [2011 (9) TMI 450 - KARNATAKA HIGH COURT] wherein it has been held that the assessee has taken the cenvat credit and taken registration later on cannot be the ground for denial of cenvat credit, therefore, I hold that the appellant has correctly taken the cenvat credit and is entitled for refund thereof.
Denial of cenvat credit on the ground that certain services are not input service - HELD THAT:- The issue is also settled law by this Tribunal in the case of CST, DELHI VERSUS CONVERGYS INDIA PVT. LTD. [2009 (5) TMI 50 - CESTAT, NEW DELHI] wherein it has been held that as it has not been disputed, the availment of cenvat credit, therefore, at the time of claiming refund, the said issue cannot be raised. Therefore, in view of this, the refund claim cannot be denied.
The appellant is entitled to cenvat credit which has been denied - the impugned order qua denial of refund of the amount in dispute is set-aside - Appeal allowed.
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2021 (4) TMI 1386
Direction to second respondent to withdraw the look out circular issued against the petitioner by considering his representation dated 15.04.2021 - HELD THAT:- Since there is no serious allegation against the petitioner in Crime No. 143 of 2021, the petitioner was granted anticipatory bail and no condition has been given in the aforesaid orders except banning the petitioner from visiting abroad. Moreover, it is also the contention of the petitioner herein that the petitioner's case is not covered in the look out circular issued by the first respondent. The only condition, which is now available to the petitioner is that he must appear before the concerned Court when the final report is filed. The process of investigation is not necessary insofar as Crime No. 142 of 2021, pending on the file of the fourth respondent, since a compromise was arrived between the petitioner and the defacto complainant. If at all this requirement is necessary is only in Crime No. 143 of 2021. The offences alleged in the said First Information Report are not grievous in nature. Hence, his presence may be required only at the time of trial. On this ground, the petitioner's liberty to go out of the country cannot be denied.
The look out circular issued by the second respondent has to be withdrawn. A Writ of Mandamus is issued to the second respondent herein to withdraw or cancel the look out circular issued against this petitioner.
The Writ Petition is allowed.
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2021 (4) TMI 1385
Examination of WhatsApp's 2021 Update to its Terms and Privacy Policy - Violation of Section 4 of Competition Act, 2002 - directing the Director General of the respondent no.1 to cause an investigation to be made into the WhatsApp 2021 Update to its Terms and Privacy Policy - whether the respondent no.1 should, in deference to the petitions pending before the Supreme Court and before this Court, not have taken suo moto cognizance and directed an investigation to be made by the Director General?
HELD THAT:- In the present case, the issue as to whether the 2016 Update/2021 Update announced by WhatsApp in any manner infringes upon the Right of Privacy of the users guaranteed under Article 21 of the Constitution of India is pending adjudication before the Supreme Court and this Court. The question regarding the 2016 Update/2021 Update not giving an option to opt-out is also an issue before the Supreme Court and this Court. However, the same cannot necessarily mean that during the pendency of those petitions, the respondent no.1 is completely denuded of the jurisdiction vested in it under the Competition Act, 2002 or that it must necessarily await the outcome of such proceedings. Therefore, it is not a question of lack of jurisdiction of the respondent no. 1, but rather one of prudence and discretion.
It must be remembered that any finding by the respondent no. 1 on any of the issues would always be subject to the findings of the Supreme Court or of this Court in and would be binding on the respondent no. 1. Such is the case in every proceeding before the respondent no. 1. Nevertheless, while such issues are being determined by the Supreme Court or by the High Court, it cannot be stated that the respondent no.1 has to necessarily await the outcome of such proceedings before acting further under its own jurisdiction. The respondent no.1 has to proceed within its own jurisdiction, applying the law as it stands presently. In this regard, it is noted that the submission of the learned ASG appearing for the respondent no. 1 that the scope of inquiry before the respondent no. 1 is not confined only to the issues raised before the Supreme Court or before this Court, but is much vaster in nature.
Similarly, in P. Sudhakar Rao & Ors. vs. U. Govinda Rao & Ors. [2013 (7) TMI 1231 - SUPREME COURT], the Supreme Court observed that the pendency of a similar matter before a larger Bench did not prevent the Supreme Court from dealing with the issue on merit.
As far as the submission of Facebook on its impleadment in the investigation is concerned, the same is only stated to be rejected. A reading of the Impugned Order passed by the respondent no.1 itself shows that Facebook shall be an integral part of such investigation and the allegations in relation to sharing of data by Whatsapp with Facebook would necessarily require the presence of Facebook in such an investigation.
There are no merit in these present petitions. The same are dismissed.
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2021 (4) TMI 1384
Validity of Reopening of assessment u/s 147 - order under challenge is non-speaking and therefore, the petitioner is not in a position to defend the case properly - HELD THAT:- The competent authority under the Statute, is expected to furnish reasons for forming such an opinion. In the absence of any such reasons, one cannot expect the assessee to defend the case properly. The Hon'ble Supreme Court of India, in clear terms, held that the order, reopening the assessment must contain the reasons, enabling the assessee to defend the case with reference to the documents and evidences available.
This being the basic principles to be followed, the impugned order is non-speaking and therefore, untenable. Accordingly, the order impugned passed by the ACIT in proceedings is quashed and the matter is remanded back to the respondent for fresh consideration and pass a speaking order. WP allowed.
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2021 (4) TMI 1383
Maintainability of the appeal filed by the Revenue before ITAT - low tax effect - HELD THAT:- In the present case, “tax effect” on the total income assessed minus the tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issue against which appeal is filed, is less than Rs.50 lakhs.
Further, the case of the Revenue does not fall within the ambit of exceptions provided in the Circular. Thus, keeping in view the above CBDT circular and provisions of section 268A, we are of the view that the present appeal of the Revenue deserves to be dismissed. It is accordingly dismissed.
However, as observed that in case on re-verification at the end of the AO it comes to the notice that the tax effect is more or Revenue’s case falls within the ambit of exceptions provided in the Circular, then the Department will be at liberty to approach the Tribunal for recall of this order. Such application should be filed within the time period prescribed in the Act. In view of the above, the appeal of the Revenue is dismissed due to low tax effect.
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2021 (4) TMI 1382
Grant of bail - High Court granted bail without proper reasoning and non application of mind - Dowry Death - HELD THAT:- The High Court cannot be oblivious, in a case such as the present, of the seriousness of the alleged offence, where a woman has met an unnatural end within a year of marriage. The seriousness of the alleged offence has to be evaluated in the backdrop of the allegation that she was being harassed for dowry; and that a telephone call was received from the Accused in close-proximity to the time of death, making a demand. There are specific allegations of harassment against the Accused on the ground of dowry. An order without reasons is fundamentally contrary to the norms which guide the judicial process. The administration of criminal justice by the High Court cannot be reduced to a mantra containing a recitation of general observations. That there has been a judicious application of mind by the judge who is deciding an application Under Section 439 of the Code of Criminal Procedure must emerge from the quality of the reasoning which is embodied in the order granting bail.
While the reasons may be brief, it is the quality of the reasons which matters the most. That is because the reasons in a judicial order unravel the thought process of a trained judicial mind. These observations are made because the reasons indicated in the judgment of the High Court in this case are becoming increasingly familiar in matters which come to this Court.
The High Court granting bail without due application of mind to the relevant facts and circumstances as well to the provisions of the law requires the interference of this Court - the impugned judgment and order of the Single Judge of the Allahabad High Court dated 1 December 2020 granting bail to the first Respondent set aside - appeal allowed.
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2021 (4) TMI 1381
Concluded contract between the parties or not - specific performance of the Agreement between the petitioner and the respondent - exercise of the jurisdiction vested in this Court by Section 9 of the Arbitration & Conciliation Act, 1996 - HELD THAT:- The troika of a prima facie case, balance of convenience, and irreparable loss, it is trite, apply as much to Section 9 of the 1996 Act, as to Order XXXIX of the Code of Civil Procedure, 1908, apart from the issue of whether grant of interim protection would be “just and convenient” - The petitioner has been unable to make out a prima facie case for grant of the reliefs sought. As such, no occasion arises to consider the issues of balance of convenience and irreparable loss, the troika considerations requiring cumulative, not alternative, satisfaction.
By no stretch of imagination can it be said, therefore, that there was consensus ad idem between the parties, at any stage of the proceedings, starting 18th March, 2020, regarding the covenants of the Agreement executed. That being so, in the absence of any contract duly signed by both parties, no concluded contract enforceable in law could be said to have come into being.
The High Court held that a concluded contract had emerged, between UPRNL and Indure, on the ground that (i) UPRNL had sent the drafted contract to Indure, (ii) Indure had signed the contract and sent it back with modifications to UPRNL, (iii) at no time did UPRNL reject the modifications, and (iv) UPRNL, rather, acted on the basis of the contract thus returned by Indure by submitting the tender. As such, the High Court held that UPRNL could not deny the existence of the contract, or of the arbitration agreement therein.
Consensus ad idem, the foremost, and most indispensable, prerequisite for any concluded contract, is totally absent in the present case. No contract, which the Court could, in exercise of its jurisdiction under Section 9 of the 1996 Act, specifically enforce, or the specific performance of which the Court could protect, even pending arbitration, can be said to exist.
Thus, no occasion arises for this Court to enter into any other aspect of the controversy, including the aspects of balance of convenience and irreparable loss, as there is no prima facie case made by the petitioner, justifying grant of any of the interim reliefs sought in the present petition. The petitioner is, for reasons unknown, seeking to breathe life into a dead body - as no concluded or enforceable contract with the petitioner has ever come into being, none of the reliefs in this petition, under Section 9 of the 1996 Act, can be granted to the petitioner. It is obviously open to the respondent to contract with any other party, for broadcasting of its programs.
The present judgment adjudicates only the prayer of the petitioner for interim protection under Section 9 of the 1996 Act, and the views expressed herein are prima facie, towards such adjudication. Section 9 requires the Court to examine, inter alia, whether the petitioner has made out a prima facie case, as one of the considerations for grant of interim protection - the answer has to be in negative.
There are no substance, whatsoever, in this petition, which is accordingly dismissed.
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2021 (4) TMI 1380
Non-inclusion of principles of natural justice especially audi alteram partem (giving opportunity of hearing to the other side) in the Master Directions on Fraud dated 01.07.2016 - it was held by High Court that 'Once the JLF was of the opinion that further clarification is required from the Forensic Auditor, once it is in the process of taking a decision, once it has decided to wait till further clarification is submitted, the JLF is not justified in concluding that “the account be treated as fraud”.'
HELD THAT:- Issue notice.
Set down for hearing on Tuesday, the 13th July, 2021 on top of the Board.
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2021 (4) TMI 1379
Non adherence to Faceless Assessment Scheme, 2019 provisions - petitioner is aggrieved by the fact that, although, the assessment was carried out under the Faceless Assessment Scheme 2019 framed by the revenue, the provisions of the Scheme have not been adhered to - as argued since there was a variation made to the declared income of the petitioner qua the assessment year 2018-2019, a show-cause notice should have been issued, before finalizing the variation.
HELD THAT:- A perusal of the impugned assessment order dated 31.03.2021 shows that the petitioner had declared its income, as ₹ 2,00,76,180/-, which, while framing the impugned assessment order was enhanced to ₹ 3,50,79,205/-. Additions have been made by the assessing officer vis-a-vis unsecured loans, and the disallowance made under Section 14A of the Income Tax Act, 1961.
Given the foregoing, we are of the view, that at least, at this stage, the petitioner has been able to set up a prima facie case for issuance of notice and grant of an interim order.
Accordingly, issue notice to the respondents. Ld. senior standing counsel, accepts service on behalf of the respondents/revenue.
A counter-affidavit will be filed within three weeks from today. Rejoinder thereto, if any, will be filed before the next date of hearing. In the meanwhile, the operation of the assessment order dated 31.03.2021 (Annexure P-1) shall remain stayed till the next date of hearing. List the matter on 21.05.2021.
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2021 (4) TMI 1378
Deduction u/s 80P - petitioner claiming to be a Primary Agricultural Credit Society - impugned assessment order completely flouts the judgment of the Hon'ble Supreme Court in Mavilayi Service Co-operative Bank Ltd. [2021 (1) TMI 488 - SUPREME COURT] - assessment order was issued in violation of the principles of natural justice
HELD THAT:- There is no quarrel with regard to the proposition laid down in Union of India and others v Kamalakshi Finance Corporation Ltd. [1991 (9) TMI 72 - SUPREME COURT] Judicial discipline demands that all authorities follow orders of the superior authority. When the order of the Supreme Court clearly specifies and declares a law, all authorities are bound by the same and cannot depart from the conclusions arrived at therein. If however an authority is alleged to have departed from a binding decision of the Supreme Court, and appreciation of facts and materials are required, however limited it may be, the remedy of a statutory appeal is the appropriate remedy. Assessees cannot insist that, in every such case, this Court must exercise its jurisdiction to set aside even an assessment order.
As a matter of fact, the Supreme Court had directed in the judgment in Mayilavi’s case [2021 (1) TMI 488 - SUPREME COURT] that the assessing officers must consider each case on the basis of the decision rendered by it. The said direction gives ample authority to the assessing officer to consider the case of the petitioner also on merits. Thus, in passing the impugned assessment order, the AO had the requisite jurisdiction. Petitioner does not have any allegation that the order was issued in violation of the principles of natural justice. The grievance of the petitioner in the instant case stems from the nature of appreciation and analysis carried out by the assessing officer while passing the impugned assessment order.
Taking note of the nature of the assessment order impugned in this writ petition, it can be seen that the petitioner has an alternative remedy available, which is equally efficacious. No circumstances are pointed out to exercise the extraordinary jurisdiction under Article 226.
Accordingly, there is no merit in this writ petition and the same is dismissed, reserving the liberty of the petitioner to pursue the statutory remedies available.
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