Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
January 12, 2021
Case Laws in this Newsletter:
GST
Income Tax
Corporate Laws
Insolvency & Bankruptcy
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
GST
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Seeking vacation of the interim protection - constitutional validity of Sections 69 and 132 of the Central Goods and Services Tax Act, 2017 - case of petitioner is that the power to arrest and prosecute are not ancillary and/or incidental to the power to levy and collect goods and services tax - Even if Sections 69 and 132 of the Act could not have been enacted in pursuance to power under Article 246A, they could have been enacted under Entry 1 of List III, as laying down of a crime and providing for its punishment is ‘criminal law’. Consequently, this Court is of the prima facie view that in either option both Sections 69 and 132 of the Act are constitutional and fall within the legislative competence of Parliament. - HC
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Reversal of Input Tax Credit - inputs consumed in dye intermediates (which is also a finished goods), where such goods have been destroyed in fire - - Since the said inputs and capital goods have been used in manufacture of finished goods that have been destroyed, the same are not used in course or furtherance of business. We, therefore, hold that the Input Tax Credit taken on the inputs used in the manufacture or production of goods i.e. intermediate dye and the Input Tax Credit taken on input services used in or in relation to the manufacture or production of said goods shall be reversed. - AAR
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Levy of GST - whether the stand to charge the GST@18% only on establishment charges (i.e. after abatement of wages etc. paid to guards) and not on whole amount - the applicant has to charge/pay GST @ 18% on the entire amount received by them from their clients, which includes the salary/wages etc. to be paid to the Security Guards as well as the amount received from their clients as establishment charges to run their administration office and to cover their administration cost like administration staff salary, stationery, electricity of admin office etc. - AAR
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Classification of goods - Narrow woven fabrics manufactured - the product, Narrow Woven Fabrics of Polyester Yarn of a width not exceeding 30 cm but not provided with selvedges (flat or tubular) on both edges manufactured by the applicant is classifiable under Chapter Sub-heading No.5407.10.19 of the Customs Tariff Act, 1975, attracting rate of GST @ 5% - AAR
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Levy of CGST and SGST or IGST - Commission agent - Intermediary services or not - sell of machinery of foreign principal in the Indian Territory - sub-section (8) clearly mentions that the place of supply in respect of the services described under the said sub-section shall be the location of the supplier of services. Further, the supplier in the instant case is the applicant and the location of the said supplier is in Gujarat. Now, since the location of the applicant, who is supplier of services, is in Gujarat and both the supplier of service as well as the place of supply of service is in Gujarat, the supply of services would be considered akin to intra-state supply of services and would be liable to CGST and SGST - AAR
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Exemption from GST or not - Fumigation service provided in a warehouse of agriculture produce - The term ‘primary market’ is not defined in the GST Act. It is understood in common parlance as a platform or a place, like a mandi, where the farmers are directly selling to the buyers, including the wholesalers, mills, food processing units, exporters, etc. It appears that services relating to the cultivation of plants include support services as may be required till the farmer disposes the agricultural produce in the primary market. All services and processes beyond the realm of the primary market are excluded. - the fumigation service provided by the applicant in custom bonded warehouse where in exported and imported agriculture produce are stored is not covered by the exemption notification - AAR
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Classification of service - Pure agent or service provider - The applicant does not satisfy any one of the conditions mentioned in the Rule 33 of CGST Rules, 2017 which are required for acting as a “pure agent”. Hence we conclude that the applicant cannot be categorized as a “pure agent” as such he is engaged in the supply of labour service. The supply of labour service is taxable under GST Act/Rules, therefore applicant is liable to pay Goods and Service Tax on the supply of said service provided. - AAR
Income Tax
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Extend the due date for filing the Income Tax Returns (ITR) and Tax Audit Reports (TAR) for AY 2020-21 to 31.01.2021 - Ministry of Finance should immediately look into the issue - some extension deserves to be considered in accordance with law. Let an appropriate decision be taken by 12th January 2021. - HC
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TDS u/s 193 - Non-deduction of TDS on the interest expenses incurred on deep discount bonds - If the assessee is not incurring any expense, the question of income in the hands of the payee does not arise. Accordingly, the provisions for deducting the TDS as provided under “Chapter XVII, B- Deduction at source” of the Act will not be attracted. - AT
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Capital Gains - Addition of cash found in search - Entire amount recorded in the seized documents has been treated as income of the assessee without calculating the capital gain as per the provisions of section 48 of the Act. Assuming, but not admitting, that impugned amount represents the income of the assessee then it has to be worked out as per the provisions of law. None of the authorities below has given any benefit of the cost of acquisition and index cost as provided u/s 48. - AO directed to delete the addition - AT
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Unexplained cash credit u/s 68 -The two buyers denied having paid any cash while purchasing the flat. The assessee denied having received the on-money. - Therefore, the whole basis of making addition is mere dumb document found at the premises of a third party, without there being any corroborative evidences to support the same. No much weightage could be attached to the said document in the absence of any cogent material supporting the entries therein. - AT
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Accrual of income in India - Taxability of SAP License Charges as Royalty - the receipt of software licence fees by the assessee, from its Indian subsidiary, is reimbursement of software licence fees paid by the assessee to a third party, and, therefore, it cannot constitute income taxable in the hands of the assessee - AT
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Taxability of on-money declared by the Assessee in its return of income - Not in dispute that the on-money is nothing but part of sale consideration of the flats and parking were sold by the assessee. When once it is part of sale consideration only 10% of such on money is liable to be taxed in this assessment year as per consistent method of accounting followed by the assesse. - AT
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Seeking reward for providing information - Tax Evasion Petition (TEP) and Benami Transaction Tax Evasion Petition - the Income Tax Informants Rewards Scheme, 2018 - The petitioner, in the petition has pleaded that the petition is filed by him as a public spirited person - The same cannot be permitted and is an abuse of the process of the Court. The Court cannot allow its machinery and process to be used and invoked by such unscrupulous petitioners, to settle their own scores. - HC
Corporate Law
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Disqualification to act as the Directors/office bearers of respondent - The disqualification for reappointment prescribed by Section 164(2) of the Companies Act, 2013 is for a period of five years. As initiation of civil proceedings and final culmination of the proceedings after appeals provided under the Code of Civil Procedure, 1908, ordinarily takes more than five years, this Court finds that civil remedy is not an efficacious alternate remedy and consequently a writ petition under Article 226 of the Constitution of India will be maintainable in appropriate cases. - HC
Indian Laws
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Order Under Section 119 of Income Tax Act, 1961 - CBDT refused to further extend the Due Dates / time limit for filing the ITR / Tax audit report. - News
Case Laws:
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GST
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2021 (1) TMI 336
Classification of service - Pure agent or service provider - applicable rate of tax - applicant is a service provider and intends to work as a Pure Agent for a company which will be the recipient of the labour supply services - HELD THAT:- The applicant has entered into an agreement with the company for supply of labour and in the clause Description of Work of the agreement, it is clearly mentioned that, contractor shall supply labour in each shift (All the three) as per the requirement of the organization; contractor shall be paid at 17000.00 on the total bill raised by him for each worker supplied by him per day and the labour employed by the contractor shall follow the safety norms strictly including prohibiting smoking inside the premises. These terms and conditions clearly indicate that the applicant is engaged in the service of supply of labour. The agreement also provides that the contractor engages all persons in all respects and assumes responsibilities under various Acts, viz. the Factories Act, 1948, The workman s Compensation Act, 1923, Contract Labour (Regulation and Abolition) Act 1970, Employees State Insurance Act and Employees Provident Funds Act, 1952 etc. Further, it also provides that the contractor has indemnified the recipient against all claims and that in the event of the recipient having to pay any amount due to non-observation of the various provisions under the Act, the contractor shall be liable to reimburse the aforesaid amount to the company. The applicant does not satisfy any one of the conditions mentioned in the Rule 33 of CGST Rules, 2017 which are required for acting as a pure agent . Hence we conclude that the applicant cannot be categorized as a pure agent as such he is engaged in the supply of labour service. The supply of labour service is taxable under GST Act/Rules, therefore applicant is liable to pay Goods and Service Tax on the supply of said service provided. Classification of service - applicable rate of GST for service of supply of labour - HELD THAT:- The nature of service provided by the application is covered under the Service Accounting Code 998519 - Other employment and labour supply services nowhere else classified - The Service provided by the applicant merit classification under SAC 998519 and applicable rate of GST would be covered under entry No. 23 of Notification No. 11/2017. Accordingly, applicable rate of GST for the Service provided by the applicant would be 18% in terms of Sr. No. 23 of Notification No. 11/2017-CT (Rate) dated 28.06.2017.
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2021 (1) TMI 335
Exemption from GST or not - Fumigation service provided in a warehouse of agriculture produce - applicability of Entry No. 54 of Not. No. 12/2017-CT (Rate) dated 28.06.2017 - Classification of Fumigation of such services - classified under Service Accounting code 998531 or not - liability of tax. HELD THAT:- The applicant is providing service of pest control that completely fills an area with gaseous pesticides of fumigants to suffocate or poison the pests within the area of fumigation. The fumigation is utilized for control of pests in Grain and produce and it is also used during the processing of goods to be imported or exported to prevent transfer of exotic organism. The applicant provides fumigation service to their clients as per their requirements in factory premises, in warehouse premises may be stored Agri and non agri products. The applicant further submitted that they have order from their client to Fumigation Services in a bonded/ customs warehouse of Food Grain, Pulses and similar to the agri products and such Agri produce stored in a warehouse may be imported or Exported produced - As per the Entry No. 54 (h) of Notification No. 12/2017-CT (Rate) dated 28.06.2017 as amended Services by way of fumigation in a warehouse of agriculture produce are not liable to Goods and Service Tax. It means that service of fumigation provided to agriculture produces stored in a warehouse are exempted from payment of GST. The term primary market is not defined in the GST Act. It is understood in common parlance as a platform or a place, like a mandi, where the farmers are directly selling to the buyers, including the wholesalers, mills, food processing units, exporters, etc. It appears that services relating to the cultivation of plants include support services as may be required till the farmer disposes the agricultural produce in the primary market. All services and processes beyond the realm of the primary market are excluded. In the custom bonded warehouse agri produce stored for export do not cover under the definition given under explanation 2(d) of Notification No. 12/2017-CT (Rate) dated 28.06.2017. Further, in absence of any facts on the records it cannot be concluded that the custom bonded warehouse are used exclusively only for storage of agriculture produce and are not used for storage of non agriculture produce. Further it is observed that applicant in his application has submitted that in the custom bonded warehouse imported agri produce are also stored. The imported produce has been procured from the farmers in the foreign and exported to India. Clearly, it is, whether processed in a mill, no longer in the domain of the primary market or at the farmer s hand - the fumigation service provided by the applicant in custom bonded warehouse where in exported and imported agriculture produce are stored is not covered under Sl. No. 54(h) of the Exemption Notification No. 12/2017-CT (Rate) dated 28.06.2017, therefore, applicant service is liable to GST. The service of fumigation/pest control in warehouse provided by the applicant is merit classification under Service Accounting Code (SAC) 99853. In view of the entry No 23(ii) of Notification No. 11/2017-CT (Rate) dated 28.06.2017 the rate of GST for the service of fumigation/pest control provided in a warehouse of agriculture produce would be 18%.
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2021 (1) TMI 334
Levy of CGST and SGST or IGST - Commission agent - Intermediary services or not - nature of the transaction carried out by the applicant - agreement with UKIL Machinery Co. Ltd., a corporation organized under the laws of Republic of Korea to sell their machinery in the Indian Territory - HELD THAT:- It appears that the services provided by the applicant are in the nature of services of commission agents or commodity brokers who negotiate between buyers and sellers as a facilitator for the supply of goods for which they are paid a fee or commission. The said service can also be called as intermediary services . The applicant is covered by the said definition of an intermediary because they are definitely acting as an agent and facilitating the process for sale of machinery by their foreign principals to the Indian parties and for providing such service to the foreign principal the applicant is receiving the commission. The applicant in his applicant has submitted that, they are acting as an agent of foreign entities who are supplying such machineries directly to the end customer and the company is getting commission for being an intermediary, thereby creating Principal- Agent relationship. It is very clear from the facts of transaction that the applicant is acting as an agent of the foreign company and neither providing services nor supplying the goods on their own account - Further, the type of GST to be paid i.e. CGST + SGST or IGST is dependent on type of supply of goods or services provided i.e. intra-state or interstate or imports/exports and also on the place of supply of goods or services. Also, since the recipient of service in the instant case is located outside India as discussed earlier, we feel it necessary to refer to Section 13 of the IGST Act, 2017, which helps in determining the place of supply of services in cases where the location of the supplier of services or the location of the recipient of the services is outside India. Sub-section (2) of Section 13 specifically provides that the place of supply of services except the services provided in sub-sections (3) to (13) shall be the location of the recipient of services provided that where the location of the recipient of services is not available in the ordinary course of business, the place of supply shall be the location of the supplier of services - In the instant case, the supplier of service is the applicant and the service recipient is M/s. UKIL Machinery Co. Ltd, Republic of Korea. We find that the services provide by the applicant i.e. intermediary services appears at Sub-Section (8)(b) of Section 13. Also, sub-section (8) clearly mentions that the place of supply in respect of the services described under the said sub-section shall be the location of the supplier of services. Further, the supplier in the instant case is the applicant and the location of the said supplier is in Gujarat. Now, since the location of the applicant, who is supplier of services, is in Gujarat and both the supplier of service as well as the place of supply of service is in Gujarat, the supply of services would be considered akin to intra-state supply of services and would be liable to CGST and SGST as per the provisions of Section 9(1) of the CGST Act, 2017. The applicant is liable to payment of CGST and SGST for the services provided as an intermediary .
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2021 (1) TMI 333
Classification of goods - Narrow woven fabrics manufactured - classifiable under Tariff Heading No. 58063990 or not? - benefit of N/N. 01/2017-Central Tax (Rate) dated 28.06.2017 - HELD THAT:- The product in question is manufactured by process of weaving from polyester yarn and its width is not exceeding 30 cm. However, it is not forthcoming from the submission that the product is having selvedges (flat or tubular) on both edges. Since, the product is not provided with a selvedges (flat or tubular) on both edges, it does not meet the definition of narrow woven fabric of being provided with selvages, as elaborated above. Hence, it would not be considered a narrow woven fabric. The said woven fabrics is, therefore, not fall under heading 5806 and to be classified with ordinary woven fabrics. As per the rate schedule, the woven fabric can be classified under many heading depending upon their composition. Thus, the product, narrow woven fabrics made of polyester yarn of a width not exceeding 30 cm but not provided with selvedges (flat or tubular) on both edges, is classifiable under sub-heading No. 5407.10.19 of the Customs Tariff Act, 1975. Applicable rate of tax - HELD THAT:- It is to mention that the said product attracts rate of tax of 2.5% CGST + 2.5% SGST as applicable under Sr. No. 217 under Schedule I of Notification No.1/2017-Central Tax (Rate) read with the corresponding notification under the Gujarat GST Act in case of Intra-State supply. Likewise, the applicable rate of tax will be 5% IGST under Sr. No. 217 under Schedule I of Notification No.1/2017-Integrated Tax (Rate) dated 28th June, 2017 in case of Inter-State supply. Thus, the product, Narrow Woven Fabrics of Polyester Yarn of a width not exceeding 30 cm but not provided with selvedges (flat or tubular) on both edges manufactured by the applicant is classifiable under Chapter Sub-heading No. 5407.10.19 of the Customs Tariff Act, 1975, attracting rate of GST @ 5%.
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2021 (1) TMI 332
Levy of GST - whether the stand to charge the GST@18% only on establishment charges (i.e. after abatement of wages etc. paid to guards) and not on whole amount (which includes the wages etc. paid to the Security Guards as well as the amount collected from their client towards establishment charges for the administration of their office) is correct or otherwise? - availability of GST Credit - benefit of N/N. 11/2017-Central Tax(Rate) dated 28.06.2017. HELD THAT:- The Security services provided by the applicant falls under Heading 9985, Group 99852 and Service code(Tariff) 998529, wherein GST payable is 18%. Section 15(1) clearly stipulates that the value of supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply of goods or services or both where the supplier and the recipient of the supply are not related and the price is the sole consideration for the supply. Further, sub-section (2) of Section 15 elaborates in detail, the items that are required to be included in the value of supply, whereas sub-section(3) of Section 15 specifically elaborates the items that are not to be included in the value of supply. Thus, it is very much apparent that all the aspects of valuation of supply have been covered in the CGST Act itself - taking into the view the definition of consideration and the aspect of valuation of supply as discussed above, it is apparent that the applicant is left with no option but to charge/pay GST on the entire amount received by them from their clients. It can be concluded that the applicant has to charge/pay GST @ 18% on the entire amount received by them from their clients, which includes the salary/wages etc. to be paid to the Security Guards as well as the amount received from their clients as establishment charges to run their administration office and to cover their administration cost like administration staff salary, stationery, electricity of admin office etc. Whether the applicant can take credit of GST, if they follow the method of charging/paying GST only on the amount received by them as establishment charges from their clients? - HELD THAT:- It is amply clear that the applicant cannot follow the method of charging/paying GST only on the amount received by them towards establishment charges from their client, since it would be contrary to the provisions of Section 15 of the CGST Act, 2017. In view of the above, we find that the applicant would be eligible to take the GST credit if they follow the procedure of charging/paying GST on the entire amount received by them from their clients, which includes the salary/wages etc./ to be paid to the Security Guards as well as the amount received from their clients as establishment charges to run their administration office and to cover their administration cost like administration staff salary, stationery, electricity of admin office etc., subject to the fulfilment of the conditions/provisions envisaged in the relevant sections and rules of the CGST Act, 2017 and the CGST Rules, 2017 respectively.
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2021 (1) TMI 331
Reversal of Input Tax Credit - inputs consumed in dye intermediates (which is also a finished goods), where such goods have been destroyed in fire - HELD THAT:- In GST regime, the scope of definition of inputs, capital goods and input services is very wide and covers almost all the imaginable goods and services that are directly or indirectly used in course or furtherance of business. However, Section 17(5) of the CGST/SGST Act, 2017 prescribes a list of goods or services on which ITC is not admissible - The bare analysis of the section makes it clear that this section has overriding effect and it states that the ITC shall not be available in respect of goods lost, stolen, destroyed or written off - Section 16 (1) of the CGST Act, 2017 provides that any registered person can avail credit of tax paid on the inward supply of goods or services or both, which is used or intended to be used in the course or furtherance of business. Since the said inputs and capital goods have been used in manufacture of finished goods that have been destroyed, the same are not used in course or furtherance of business. We, therefore, hold that the Input Tax Credit taken on the inputs used in the manufacture or production of goods i.e. intermediate dye and the Input Tax Credit taken on input services used in or in relation to the manufacture or production of said goods shall be reversed.
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2021 (1) TMI 330
Seeking vacation of the interim protection - constitutional validity of Sections 69 and 132 of the Central Goods and Services Tax Act, 2017 - case of petitioner is that the power to arrest and prosecute are not ancillary and/or incidental to the power to levy and collect goods and services tax - HELD THAT:- This Court is of the opinion that the principles for adjudicating the constitutionality of an enactment or any part thereof are well settled - There is always a presumption in favour of constitutionality of an enactment or any part thereof and the burden to show that there has been a clear transgression of constitutional principles is upon the person who impugns such an enactment. Also, whenever constitutionality of a provision is challenged on the ground that it infringes a fundamental right, the direct and inevitable effect/ consequence of the legislation has to be taken into account. Further, laws are not to be declared unconstitutional on the fanciful theory that power would be exercised in an unrealistic fashion or in a vacuum or on the ground that there is a remote possibility of abuse of power. In fact, it must be presumed, unless the contrary is proved, that administration and application of a particular law would be done not with an evil eye and unequal hand . This Court is of the prima facie opinion that the Goods and Service Tax is a unique tax, inasmuch as the power as well as field of legislation are to be found in a single Article, i.e., Article 246A. Further, the scope of Article 246A is significantly wide as it not only empowers both Parliament and State Legislatures to levy and/or enact GST Act, but it also grants the power to make all laws with respect to Goods and Service Tax - It is settled law that unless the Constitution itself expressly prohibits legislation on the subject either absolutely or conditionally, the power of a Legislature to enact legislation within its legislative competence is plenary. Also, the words/expression in a constitutional enactment conferring legislative power have to be construed as words of widest amplitude, content and therefore the most liberal construction has to be placed upon them. This Court is of the prima facie opinion that the pith and substance of the CGST Act is on a topic, upon which the Parliament has a power to legislate as the power to arrest and prosecute are ancillary and/or incidental to the power to levy and collect GST - Even if Sections 69 and 132 of the Act could not have been enacted in pursuance to power under Article 246A, they could have been enacted under Entry 1 of List III, as laying down of a crime and providing for its punishment is criminal law . Consequently, this Court is of the prima facie view that in either option both Sections 69 and 132 of the Act are constitutional and fall within the legislative competence of Parliament. This Court at the interim stage, cannot ignore that another High court has taken a view contrary to the contention raised by the Petitioner. At this interim stage, therefore, we cannot ignore the view of the Gujarat High Court. This Court is of the view that the allegation that a tax collection mechanism has been converted into a disbursement mechanism most certainly requires investigation. Accordingly, this Court is not inclined to interfere with the investigation at this stage and that too in writ proceedings. At the same time, innocent persons cannot be arrested or harassed. This Court has no doubt that the trial court, while considering the bail or remand or cancellation of bail application, will separate the wheat from the chaff and will ensure that no innocent person against whom baseless allegations have been made is remanded to police/judicial custody. Petition dismissed.
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2021 (1) TMI 329
Release of attached Bank Accounts of petitioner - Section 74 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- We have enquired from the counsel for the petitioners, whether for a proceeding under Section 74 to be said to have been initiated or launched, a mere decision to issue notice or mere formation of a opinion that tax due has not been paid or has been short paid, is sufficient or the service of the notice on the notice is essential, before proceeding under Section 74 can be said to have been initiated/launched/instituted and pending, within the meaning of Section 83(1) of the Act, for the power of attachment thereunder to be exercised. In the prima-facie opinion, communication of the notice under Section 74 to the noticee is essential, before a proceeding under Section 74 can be said to be pending within the meaning of Section 83(1) of the Act. List on 15th January, 2021.
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2021 (1) TMI 328
Principles of Natural Justice - rejection on the ground that the appeal is filed beyond even the condonable period holding that the copy of the best Judgment order dated 10.05.2019 is served on the petitioner s registered e-mail on 10.05.2019 and in person on 14.05.2019 - HELD THAT:- The provisions of Section 107 of the Act is categorical that a person aggrieved by any decision or order under the Act may prefer an appeal to the prescribed authority within three months from the date on which the said decision or order is communicated to such person with a further condonable period of thirty days. It would therefore be necessary for the appellate authority, while dismissing an appeal on the ground that it is filed beyond the period of limitation prescribed and the further condonable period, to decide on the limitation considering the circumstances relied upon by the parties to assert a particular date as the date of communication. In the present case, the Department asserts 10/14.05.2019 and the petitioner asserts 7.11.2019 as the date of communication. The impugned order does not indicate that the appellate authority has considered the controversy in this regard. The appellate Authority has also not considered the circumstances relied upon by the petitioner to justify that the date of communication of the order as 07.11.2019. The Appellate Authority, given the scheme of the Act prescribing definite timelines for preferring an appeal and the lapse of right of appeal thereafter, would have to consider the circumstances asserted. The impugned order passed by the Joint Commissioner of Commercial Taxes [Appeals] 6, Bengaluru, is set aside - petition disposed off.
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Income Tax
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2021 (1) TMI 338
Extend the due date for filing the Income Tax Returns (ITR) and Tax Audit Reports (TAR) for AY 2020-21 to 31.01.2021 - covid-19 pandemic situation - seeking not to make any alternations in Forms and Utilities or changes in tax compliance requirements, after the beginning of the Assessment year in which the same are made applicable; providing the tax payers and the tax practitioners a clear period of 183 and 214 days to prepare and submit the due reports and forms respectively. HELD THAT:- We are of the view that the respondent No.1 Union of India, Ministry of Finance should immediately look into the issue, more particularly, the representation dated 12th October 2020 at Annexure : I of the paper book (page 108) and take an appropriate decision at the earliest in accordance with law. We, accordingly, direct the respondent No.1 to do so. While taking an appropriate decision, the Union shall bear in mind the observations made by this High Court in the All Gujarat Federation of Tax Consultants [2014 (9) TMI 784 - GUJARAT HIGH COURT] AND [ 2015 (10) TMI 25 - GUJARAT HIGH COURT] more particularly, the observations of Vaghjibhai S. Bishnoi [2013 (8) TMI 370 - GUJARAT HIGH COURT] that the powers given to the CBDT are beneficial in nature to be exercised for proper administration of fiscal law so that undue hardship may not be caused to the taxpayers. The purpose is of just, proper and efficient management of the work of assessment and the public interest. One additional aspect needs to be kept in mind before taking any appropriate decision that the time period for the officials of the tax department has been extended upto 31st March 2021 having regard to the current covid19 pandemic situation. If that be so, then some extension deserves to be considered in accordance with law. Let an appropriate decision be taken by 12th January 2021. Post this matter on 13th January 2021 on top of the Board.
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2021 (1) TMI 327
Seeking reward for providing information - Tax Evasion Petition (TEP) and Benami Transaction Tax Evasion Petition - the Income Tax Informants Rewards Scheme, 2018 - The petitioner, in the petition has pleaded that the petition is filed by him as a public spirited person. However, in spite of the said averment, the same has not been labelled as a Public Interest Litigation and is not in compliance with the Delhi High Court (Public Interest Litigation) Rules, 2010 for filing Public Interest Litigation - HELD THAT:- Prima facie it appears that TEPs filed by the petitioner or by any of the other legal heirs or at their instance as well as this petition, are to coerce the said M/s JPA and M/s Vijay Automobiles to settle the claims, inter alia of the petitioner s wife. The same cannot be permitted and is an abuse of the process of the Court. The Court cannot allow its machinery and process to be used and invoked by such unscrupulous petitioners, to settle their own scores. Though certain schemes brought out by the Income Tax Department encourage the filing of complaints of income tax evasion to be made and which can obviously be made only by insiders who have fallen apart from the entity/person earlier indulging in tax evasion, but the petitioner, though referring to the same, has not filed any copy of the said scheme and has not shown any provision under which the petitioner, besides lodging a complaint or furnishing information, has a right to activate the Court machinery to issue mandamus to the respondent to take further action against the person/s complained against. Such abuse of process of this Court cannot be permitted.
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2021 (1) TMI 326
TDS u/s 195 - Disallowance u/s 40(a)(ia) - payments made sub contractor - Tribunal setting aside the disallowance made under section 40(a)(ia) by holding that assessee made only journal entries in the books and as such it does not require deduction of TDS - HELD THAT:- It has been held by the Supreme court in VICTORIA MEMORIAL HALL vs. HOWRAH GANATANTRIK NAGRIK [ 2010 (3) TMI 1059 - SUPREME COURT ] reasons were held to be the heartbeat of every conclusion, apart from being an essential feature of the principles of natural justice, that ensure transparency and fairness, in the decision making process Tribunal has merely recorded its conclusion and has not assigned any reasons in support of the conclusion. Thus, for the aforementioned reasons, the impugned order dated passed by the tribunal is hereby quashed. The substantial question of law is answered accordingly. Tribunal is directed to decide the claim of the assessee under Section 40(a)(ia) of the Act afresh on the basis of the material available on record and on the basis of the reasoning assigned by the AO as well as CIT(Appeals) and shall also advert to the issue whether the condition precedent for invocation of Section 40(a)(ia) of the Act have been fulfilled in the fact situation of the case.
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2021 (1) TMI 325
Denial of application of income to the Assessee in respect of on-money declared by the Assessee and its sister concern - assessee submitted that the Assessing Officer as well as the Ld.CIT(A) erred in rejecting the claim of the Assessee since no disallowance could at all have been made in the absence of a specific show cause notice regarding the same to enable the assessee a reasonable opportunity to set out its case - HELD THAT:- Claim of the assessee as regards application of income could not be denied. We also find that the Ld.CIT(A) erred in sustaining the disallowance of application simply on the ground that the project of the Assessee was substantially completed and no further expenditure was required to be incurred is also baseless since the Assessing Officer himself in Para No.2 of the assessment order observed that the project is under construction. The observation of the Ld.CIT(A) is not based on any evidence on record. We further observe that even in the assessment orders for subsequent years the same position is accepted by the Revenue. Thus, the Ld.CIT(A) is not justified in rejecting the claim on such a ground which is clearly contrary to the facts on record. As regards the apprehension of the Ld. DR, that if the claim for application of income is allowed it would nullify the effect of disclosure made by the Assessee, is concerned, we find that once the income has been offered by the Assessee then the application thereof could not be denied because essentially what has been claimed by the Assessee is merely telescoping of the said income into the increase in its WIP of the project from where such receipts were generated. See S. NELLIAPPAN [ 1967 (5) TMI 6 - SUPREME COURT] . Even in the absence of direct evidence it could be inferred that cash credits reflected incomes kept out of the books by the Assessee and therefore no additions could be made in this . Claim of telescoping/application of income offered by the Assessee we observe that before the Ld.CIT(A), the Assessee has claimed that 10% of the said receipts is liable to be taxed in this year and the balance will be carried forward till the completion of the project. Only the differential amount is allowed to be telescoped i.e. the claim of application is restricted to ₹.42.44 Cr (₹.47.16 Crore (-) 10%) since to the own admission of the Assessee, 10% is the estimated profit element and the balance is on account of expenditure incurred. Accordingly, Grounds Nos. 1(a) to (c) and Additional Grounds 2 to 2.1 are partly allowed. Taxability of on-money declared by the Assessee in its return of income - HELD THAT:- AO has himself accepted that the Assessee is following the project completion method and has accepted the method of offering income at 10% of the incremental receipts in the project and the balance is carried forward to the year of completion of the project. This method has been consistently followed by the Assessee and has been accepted by the Department in earlier as well as subsequent years. Further, it needs specific mention that what has been claimed by the assessee is nothing but postponing the recognition of income to the year in which the project gets completed pursuant to the method regularly followed and even accepted by the Department every year. Not in dispute that the on-money is nothing but part of sale consideration of the flats and parking were sold by the assessee. When once it is part of sale consideration only 10% of such on money is liable to be taxed in this assessment year as per consistent method of accounting followed by the assesse. Thus, the grounds on this issue deserve to be allowed merely on the principle of consistency as laid down by the Hon'ble Supreme Court in the case of Radhasoami Satsang [ 1991 (11) TMI 2 - SUPREME COURT] - on-money receipts are in the nature of undisclosed receipts and not income per-se and therefore only profit element embedded therein be liable to be taxed and not the entire on-money receipts Year of taxability of on-money - Only 10% of the on-money receipts are liable to be taxed in the relevant assessment year and the balance at the time of completion of the project based on the project completion method regularly followed by the Assessee which has been approved even by the Department consistently every year in the earlier as well as subsequent years. Non-filing of revised return to make this claim - grievance of the Ld. DR that allowing this ground will amount to retraction of the returns and statement of the Assessee are concerned, we find that the same stands addressed by the judgements in the case of Nirmal L Mehta[ 2004 (4) TMI 43 - BOMBAY HIGH COURT] holding there is no estoppel against statute and the assessee could claim that its income is not taxable even if the same is offered in the return of income. In the cases of Abdul Qayumme [ 1989 (12) TMI 37 - ALLAHABAD HIGH COURT] and SAIL DSP [ 2003 (2) TMI 46 - CALCUTTA HIGH COURT] it has been held that no amount of admission could lead to taxing an item if it is not otherwise taxable under the Act. In view of the above facts and judicial precedents, we find in favour of the Assessee and Grounds Nos. 2,3 and 4 are allowed. Disallowance of interest expenditure - HELD THAT:- DR has not controverted the fact that the assessee had sufficient amount of interest free funds available with it in order to advance the same to its sister concerns.Assessee as well as its sister concerns were in the same line of business. In view of the said facts and the law as laid down the disallowance made by the Assessing Officer and as affirmed by the Ld.CIT(A) deserves to be deleted. So far as the Department's appeal is concerned, admittedly the same is agitating against the relief granted by the Ld.CIT(A) relying upon the Remand Report of the Assessing Officer himself. In our view, when the Assessing Officer has himself held that the borrowing is for the purpose of business and after considering the same the Ld.CIT(A) has deleted proportionate disallowance, then the same must be affirmed. In view of the above we reject the grounds raised by the Department.
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2021 (1) TMI 324
Addition u/s 153A - deposits made by the members of the society as unexplainable - incriminating material found during the search or not? - HELD THAT:- From the observation of the A.O it is evident that the A.O has not made any specific reference to the incriminating material found during the search. Under these facts non reference to the incriminating material by the A.O is contrary to the settled position of law. We hold accordingly. This ground of assessee s appeal is allowed. Additional ground is against non recording of satisfaction by the A.O of the searched person - Undisputedly, the revenue has not placed on record satisfaction note by the assessing officer of the searched person recording that the documents belong to the other person in this case assessee herein. In the absence of such recording the assessment so framed is contrary to provision of law and the binding precedence. We, therefore, hold that the assumption of jurisdiction by the assessing officer u/s 153C of the Act is not in accordance with law. Hence, the assessment so framed u/s 153C of the Act is bad in law deserves to be quashed. This ground of the assessee s appeal is allowed.
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2021 (1) TMI 323
Accrual of income in India - Taxability of SAP License Charges as Royalty - Sale of software or mere reimbursement of expenses - whether Appellant has only recharged actual cost it incurred for acquiring SAP licenses from third party and since there is no profit element the same is not taxable in India? - assessee before us is a company incorporated, and fiscally domiciled, in Sweden. It has a subsidiary in India by the name of SCA Hygiene Products India Pvt Ltd (SCA-India) - HELD THAT:- We hold that the receipt of software licence fees by the assessee, from its Indian subsidiary, is reimbursement of software licence fees paid by the assessee to a third party, and, therefore, it cannot constitute income taxable in the hands of the assessee. As this income is not taxable under the domestic law provisions in India, we see no need to deal with the other aspects of the matter with respect to non-taxation of this income under the provisions of the Indo- Swedish tax treaty. We leave it at that. Taxability of consultancy services as FTS - As argued Appellant has only recharged the actual cost it incurred for providing the project consultancy services and since there is no profit element the same is not taxable in India - what is the impact of the MFN clause in the Indo Swedish tax treaty, read with the Indo Portuguese tax treaty which was subsequently entered into between India and Portugal, an OCED member country.? - HELD THAT:- It is not in dispute that Portugal is an OECD jurisdiction, that the Indo Portuguese tax treaty was entered into after the Indo Swedish tax treaty was entered into, and that the Indo Portuguese tax treaty provides far more restricted scope of 'fees for technical services' inasmuch as it adopts the 'make available' clause which restricts the taxation of fees for technical services only in such cases which make available technical knowledge, experience, skill, know-how or processes or consist of the development and transfer of a technical plan or technical design which enables the person acquiring the services to apply the technology contained therein. Therefore, respectfully following the coordinate bench decision in the case of ITC Ltd [ 2001 (12) TMI 196 - ITAT CALCUTTA-A] which has been specifically approved by Hon'ble Delhi High Court in the case of Steria India Ltd [ 2016 (8) TMI 166 - DELHI HIGH COURT] we hold that the provisions of article 12 (4)(b) of the Indo Portuguese tax treaty, being more restricted in scope vis- -vis article 12(3)(b) of Indo Swedish tax treaty, apply in the Indo Swedish tax treaty as well. Connotations of 'make available' clause in the treaty, this issue is no longer res integra. There are at least two non-jurisdictional High Court decisions, namely Hon'ble Delhi High Court in the case of DIT v. Guy Carpenter Co Ltd. [ 2012 (5) TMI 31 - DELHI HIGH COURT] and Hon'ble Karnataka High Court in the case of CIT v. De Beers India (P.) Ltd. [ 2012 (5) TMI 191 - KARNATAKA HIGH COURT] in favour of the assessee, and there is no contrary decision by Hon'ble jurisdictional High Court or by Hon'ble Supreme Court. Just because the Indian entity is interacting with the project leader and getting inputs from him does not mean that the Indian entity is transferred the technology of being a project leader of this type and next time Indian entity can perform similar services without recourse to the same- which is the core test for the fulfilment of 'make available' clause. We are unable to approve the stand of the authorities below on this point. In our considered view, in the light of the discussions above, the make available clause is not satisfied, in the course of rendition of services by the assessee, and, as such, the consultancy fees cannot be brought to tax, in the hands of the assessee, under article 12 of Indo Swedish tax treaty. Taxability on account of Information Technology Services - main reason for its taxability by the DRP is stated to be that the services is found to be intrinsically linked with enjoyment of the SAP system and hence, would fall within the ambit of Article 12(4)(a) - HELD THAT:- the person receiving the money as royalty, such as the actual seller of the software in this case, and the person providing service ancillary or subsidiary to the enjoyment of that right, must be the same. That's not the case here. In the present case, the payment received by the assessee has been held to be in the nature of reimbursement, which is outside the ambit of taxation. The person selling the SAP software is Be One Solution, Switzerland, whereas the person providing the services in question is the assessee. Article 12(4)(a) will not, therefore, come into play at all. In our considered view, therefore, the taxation under article 12 in the present case can come into play only when the make available clause is satisfied, but then the Assessing Officer's justification for the satisfaction of 'make available' clause, for the detailed reasons set out earlier in this paragraph, does not meet our judicial approval. In view of these discussions, as also bearing in mind the entirety of the case, we uphold the plea of the assessee on this point as well. Accordingly, we hold that the income on account of Information Technology Services is also not taxable under article 12.
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2021 (1) TMI 322
Reopening of assessment u/s 147 or assessment u/s. 153C - unexplained cash credit u/s 68 - HELD THAT:- CIT(A) has erred in overlooking the amendment brought in by Finance Act, 2015 in Sec.153C and carried away by the fact that the seized document must belong to the assessee for application of Sec.153C. However, as already noted the said words stood replaced by words belongs or belong to. The seized document, in the present case, undisputedly pertains to the assessee and the same form the very basis of making additions in the hands of the assessee. In view of the foregoing, we would hold that the provisions of Sec.153C were applicable to the facts of the case and Ld.AO was not justified in framing the assessment u/s 143(3) r.w.s. 147. The failure to do would vitiate the assessment proceedings. Hence, we are inclined to cancel the assessment framed u/s 143(3) r.w.s. 147. Accordingly, the impugned additions would not survive. Additions made u/s 68 which is also not applicable to the facts of the case since credit of sum in the books of accounts being maintained by the assessee is sine qua non to trigger the provisions of Sec.68. However, going by the factual matrix, it is quite clear that there was no credit entry in assessee s books of accounts rather it was the Ld. AO s allegation that the assessee received on-money on sale of flats. There was no sum found credited in assessee s books and therefore, the provisions of Sec.68 could not have been invoked against the assessee. None of the parties have admitted to have paid or received any on-money which is evident from cross-examination proceedings. The two buyers denied having paid any cash while purchasing the flat. The assessee denied having received the on-money. Shri Pankaj Goshar was not authorised to undertake financial transactions on behalf of the assessee. He also denied having undertaken any financial transactions with Manania family. Therefore, the whole basis of making addition is mere dumb document found at the premises of a third party, without there being any corroborative evidences to support the same. No much weightage could be attached to the said document in the absence of any cogent material supporting the entries therein. - Decided in favour of assessee.
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2021 (1) TMI 321
Disallowance of deduction of claim u/s 80JJAA - salary paid to new regular workmen - HELD THAT:- As decided in own case [ 2014 (11) TMI 1202 - ITAT BANGALORE] submissions of the assessee before CIT(A) that the DVO has not considered the units in County I project and therefore the report of the DVO cannot be said to be final in the matter. In these circumstances, we do not find any merit in the ground No.3 raised by the Revenue. In any event, the physical measurement has to be taken by the AO and the AO is at liberty to take physical measurement in an appropriate manner and therefore there cannot be any grievance to the Revenue. For the reasons given above, we find no merit in the appeal by the Revenue. Remit the issue to the file of Assessing Officer on similar directions. The lower authorities have to take same view on this issue as taken in the A.Y. 2008-09. This ground of appeal is allowed for statistical purposes. Disallowance of Annual Maintenance Contract and software expenses - Addition u/s 40(a)(i)/ 40(a)(ia) on account of non-deduction of tax at source - AR submitted that the learned CIT(A) ought to have appreciated that that the payments made by the assessee towards purchase of software is not covered within the meaning of royalty / royalties under the applicable DTAA and hence, the Appellant was not under the obligation to withhold taxes - HELD THAT:- We are of the opinion that the assessee cannot foresee the changes in the Act which was made wherein Expln. 5 to Section 9(1)(vi) of the Act was inserted vide Finance Act, 2012 w.e.f. 1.6.2016 since these payments are made prior to this amendment. Being so, following the Tribunal order in the case of Acer India Pvt. Ltd. [ 2020 (10) TMI 450 - ITAT BANGALORE] we allow the above ground taken by the assessee. Deduction of education cess and secondary higher education cess - assessee submitted that the assessee out of abundant caution had not claimed the said deduction in the return of income for the year under consideration in the absence of clarity in respect of the said issue - HELD THAT:- As relying on VOLTAS LIMITED [ 2020 (7) TMI 125 - ITAT MUMBAI] deducation Cess and the Secondary and Higher Education Cess is not disallowable as a deduction u/s 40(a)(ii) .
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2021 (1) TMI 320
Exemption claimed u/s 54B - AO found that the land in question was sold after converting the same into non-agricultural land - HELD THAT:- DR has not brought anything on record suggesting that the exemption was claimed by the assessee after violating the provisions of law insofar the land in question that it was not used for the agricultural operations. Accordingly, we set aside the order of the learned CIT (A) and direct the AO to allow the claim of the assessee for the exemption under section 54B of the Act. Hence the ground of appeal of the assessee is allowed. Deduction u/s 54B - agricultural land sold by the Appellant at Village nardipur was not continuously held for two years for being used for agricultural purpose - HELD THAT:- From the report we find that Nardipur village has population of 8 thousand only. From the Google search we find that the Nardipur village is also a gram panchayat and situated 13 km away from sub-district headquarter Kalol and 20 km away from district headquarter Gandhinagar. Therefore in our considered view the impugned land fulfils the criteria of being an agricultural land. Hence the same is outside the purview of capital asset and not liable to tax under the head capital gain. Accordingly we set aside the order of the learned CIT (A) and direct the AO to delete the addition made by him. Hence the issue raised by the assessee vide additional ground of appeal is allowed. Unexplained investment in purchase of land - HELD THAT:- Investment has been made by the assessee against the sale proceeds which has already been offered to tax and assessed in the assessment year 2010-11 by the AO vide order dated 28th March 2014. The burden lies upon the Revenue to prove the assessee s contention wrong based on cogent material that the amount received by the assessee against the sale properties bearing survey no- 197/1 and 198/1 at Motera village was not utilised for the investments in the properties as discussed above. But the revenue has not brought anything on record and also not pointed any defect in cash flow statement as prepared by the assessee. In the absence of any adverse finding by the AO in the assessment order viz a viz no material brought on record by the learned DR in support of the finding of the AO, we conclude that the investment has been made by the assessee out of the cash receipts as discussed above which has already been subjected to tax. Accordingly any further addition of such unaccounted cash will lead to double addition which is unwarranted under the provisions of law. Accordingly, we do not find any infirmity in the order of the learned CIT (A) and thus uphold the same. Hence the ground of appeal of the revenue is dismissed. Addition of cash found in search - Loose paper found seized during the course of search -HELD THAT:- The loose paper found seized during the course of search and as reproduced by the A.O. in the assessment order, clearly prove that the three partners earned the profit on the sale of the land under consideration. The word Nafo has been used, which prove that the transaction has been completed - addition made by the A.O. are found justified. The loose paper indicated that the amount of ₹ 1,05,00,0007- was relating to profit of deal in respect of land at Village Motera Navi Sarat Land. However, from the said loose paper as reproduced by A.O. at Para 4 page 6 of the Assessment Order and as per statement recorded, there were three partners in the said amount of ₹ 1,05,00,0007-and amount mentioned against the Appellant's name is ₹ 70,00,000/-. It is settled legal position that a document or statement has to be read as a whole and hence, addition in the hands of the Appellant bases on the said paper, cannot exceed ₹ 70,00,000/-. I therefore direct the AO to restrict the addition to ₹ 70,00,000/-. The Appellant gets a relief of ₹ 35,00,000/-. Unexplained capital gain - certain amount against the sale of the land through cheque but the same were never presented to the bank for the reason that the deal got cancelled - HELD THAT:- CBDT has emphasized to its officers to focus on gathering evidences during search/survey operations and strictly directed avoiding to obtain admission of undisclosed income under coercion/ undue influence. Keeping in view the guidelines issued by the CBDT from time to time regarding the statements obtained during search and survey operation, it is undisputedly clear that the lower authorities have not collected any other evidence to disprove the contention of the assessee. Entire amount recorded in the seized documents has been treated as income of the assessee without calculating the capital gain as per the provisions of section 48 of the Act. Assuming, but not admitting, that impugned amount represents the income of the assessee then it has to be worked out as per the provisions of law. None of the authorities below has given any benefit of the cost of acquisition and index cost as provided under section 48. In view of the above we disagree with the finding of the authorities below. Accordingly we set aside the finding of the learned CIT (A) and direct the AO delete the addition made by him.
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2021 (1) TMI 319
Addition u/s 68 - AO treating the loan as unsecured cash credit - HELD THAT:- Admittedly, in the case on hand, the assessee has discharged its primary onus by furnishing the necessary details such as copy of PAN, confirmation of the parties, Bank extracts etc. to support the transactions. The necessary details of the parties in support of the transactions are available in the Paper Book. Similarly, there is also no dispute to the fact that all the transactions were carried out through the banking channel. Thus the inference that flows from a cumulative consideration of all the aforesaid contending facts is that the assessee has discharged its onus imposed under Section 68 of the Act. The details filed by the assessee was not cross verified by the Revenue from the respective parties despite having the necessary details in its possession. Thus, we are of the view, Revenue cannot go to hold the addition under Section 68 of the Act in the given facts and circumstances. See CHANAKYA DEVELOPERS [ 2013 (10) TMI 7 - GUJARAT HIGH COURT] . Creditworthiness of the lender was justified by the assessee. Once the cash credit gets explained within the parameters of the provisions of section 68 of the Act, then the question of disallowing the interest expenses does not arise in the given facts and circumstances. In view of the above, we are not impressed with the finding of the ld. CIT-A and direct the AO to delete the addition - Decided in favour of assessee.
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2021 (1) TMI 318
TDS u/s 193 - Non-deduction of TDS on the interest expenses incurred on deep discount bonds - interest under section 201(1) and 201(1A) levied - CIT(A) deleted the demand raised by the AO by observing that the provisions of TDS under Section 193 of the Act with respect to deep discount bonds do not apply and same are subject to TDS under the provisions of Section 194 - CIT (A) held that there is no question of deducting TDS in the situation wherein the assessee has not claimed any expenditure on such deep discount bond - HELD THAT:- The provisions of Chapter XVII, B Deduction at source provides that person who is responsible for paying any income to a resident by way of interest, shall, at the time of credit of such income to the account of the payee or at the time of payment whichever is earlier, deduct tax at the rate prescribed under the law. If the assessee is not incurring any expense, the question of income in the hands of the payee does not arise. Accordingly, the provisions for deducting the TDS as provided under Chapter XVII, B- Deduction at source of the Act will not be attracted. Hence, if the contention of the learned AR is believed to be true then the question of TDS does not arise. There is no question for deducting the TDS on the interest expenses on the deep discount bond as alleged by the AO for the simple reason that the assessee has not claimed any interest expense. Hence the ground of appeal of the Revenue is dismissed.
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Corporate Laws
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2021 (1) TMI 317
Disqualification to act as the Directors/office bearers of respondent - seeking restraint on respondent from functioning as Directors of respondent - whether the writ petition is maintainable, whether the Directors of the Yogam have defaulted in filing annual returns and whether there is an automatic disqualification of the Directors of the Yogam for re-appointment as the Directors of the Yogam? - HELD THAT:- Section 164(2) makes it clear that no person who is or has been a Director of a company which has not filed financial statements or annual returns for any continuous period of three financial years shall be eligible to be reappointed as Directors of that company for a period of five years from the date on which the said company fails to do so. Section 167 mandates that the office of a Director shall become vacant in case a Director incurs any of the disqualifications specified in Section 164 - The Companies Act, 2013 does not provide for any administrative procedure for disqualification of Directors by operation of Section 164(2). Respondents 3 to 7 also admit that no application to declare that the office has been vacated, can be entertained by the Company Court. According to respondents 3 to 7, the remedy available is through civil court. The disqualification for reappointment prescribed by Section 164(2) of the Companies Act, 2013 is for a period of five years. As initiation of civil proceedings and final culmination of the proceedings after appeals provided under the Code of Civil Procedure, 1908, ordinarily takes more than five years, this Court finds that civil remedy is not an efficacious alternate remedy and consequently a writ petition under Article 226 of the Constitution of India will be maintainable in appropriate cases. Whether the Directors of the 3rd respondent-Yogam have defaulted in filing annual returns and are disqualified to hold office by operation of Section 164(2) of the Companies Act? - HELD THAT:- Section 164(2)(a) makes it clear that a Director of a company which has not filed financial statements or annual returns for any continuous period of three financial years shall not be eligible to be reappointed as a Director of that company or appointed in other company, for a period of five years from the date on which the said company fails to do so. Section 167(1)(a) mandates that the office of a Director shall become vacant in case he incurs any of the disqualifications specified in Section 164. It is evident from the said provisions that disqualification of such Directors occurs by operation of law and is automatic and an administrative decision is not required in that regard. Whether any of the Directors of the 3rd respondent-Yogam have incurred the disqualification due to non-filing of annual returns/financial statements for a continuous period of three years? - HELD THAT:- It is evident from the pleadings that the annual returns of the Yogam from the year 2006-'07 to 2016-'17 were filed paying the penalty imposed by the Non-trading Company Registrar, Kerala only after 24.09.2020. The amended provisions of the Companies Act came into force with effect from 12.09.2013. Therefore, if financial statements/annual returns for the years 2013-'14, 2014-'15 and 2015-'16 were not filed, such of the Directors who were in office during the period will be disqualified for reappointment as Directors in the Yogam for the next five years. Whether respondents 4 to 7 in the writ petition are liable to be declared as having incurred the disqualification under Section 164(2) of the Companies Act, 2013, by this Court? - HELD THAT:- There is no positive assertion anywhere in the writ petition that respondents 4 to 7 were Directors of the Company during the three consecutive years since 2013-'14, except in the case of the 4th respondent - Disqualification of Directors for reappointment or appointment in any Company is a serious matter affecting rights of Directors to hold office of the Director not only in the defaulted company but also in other companies. Therefore, it will not be advisable and would indeed be improper to declare that respondents 4 to 7 are disqualified for reappointment in the Yogam, in view of Section 164(2) of the Companies Act, 2013 in the absence of sufficient pleadings. Furthermore, there are other Directors of the Yogam also, as is evident from the cause title shown in Ext.P4 complaint, who are not parties to this writ petition, who may also be disqualified for reappointment as Directors in the Yogam. In the circumstances, this Court finds that it will not be appropriate to declare that respondents 4 to 7 are disqualified to be reappointed as Directors of Yogam, in this writ petition. The petitioner has approached the 2 nd respondent filing Ext.P4 petition seeking to remove the disqualified Directors of the Yogam, including respondents 4 to 7, in the light of Section 164(2) of the Companies Act, 2013 - the writ petition is disposed of directing the 2nd respondent to consider and take a decision on Ext.P4 petition submitted by the writ petitioner, within a period of three months.
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2021 (1) TMI 316
Reduction of Capital - seeking that requirement of issuing notice to creditors and publishing newspaper advertisement may kindly be waived - HELD THAT:- The Petitioner in the petition stated that the Company is not having any foreign investments and, therefore, was not required to comply with the provisions of FEMA and RBI guidelines in respect of Foreign Direct Investment (FDI). It is also stated that the proposed reduction of share capital has no adverse impact on the employees as there are no employees working on the rolls of the Company as on 31.10.2019 and the tax implication arising out of such reduction of share is subject to the final decision of the Income Tax authorities. Since all the requisite statutory procedures have been fulfilled and no objections received from any shareholders before this Tribunal, the Company Petition is made absolute in terms of the prayer clause of the Petition, which are hereby allowed - All concerned regulatory authorities are directed to act on certified copy of the order, duly certified by the Deputy Registrar or Assistant Registrar, National Company Law Tribunal. The Petitioner Company is directed to file the order with the Registrar of Companies within 30 days from the date of the receipt of the order. All concerned regulatory authorities are directed to act on certified copy of the order, duly certified by the Deputy Registrar or Assistant Registrar, National Company Law Tribunal. The Petitioner Company is directed to file the order with the Registrar of Companies within 30 days from the date of the receipt of the order - Petition disposed off.
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2021 (1) TMI 315
Approval of Scheme of Amalgamation of the Transferor Companies with the Transferee Company - Section 230 read with Section 232 of the Companies Act, 2013 - HELD THAT:- It appears that paper publication under Rule 16 has been affected on 14.11.2020 in two Newspapers, i.e. in Times of India (English)and Janmabhoomi (Malayalam) and no one has filed objection against the Scheme of Amalgamation of the Petitioner Companies. During the course of hearing on 01.12.2020, the learned counsel for Petitioners submitted that the Appointed date has been changed from 01.04.2017 to 01.04.2019 as directed by the Regional Director. It is further stated that the Scheme has also been revised taking into consideration of the report of the Official Liquidator and the Registrar of Companies. This Bench is of the view that the Scheme placed before this Bench on 27.11.2020 after carrying out necessary amendments and change of appointed date from 01.04.2017 to 01.04.2019, may be sanctioned. Hence, this Tribunal Sanction the Scheme of Amalgamation of M/s. Toonz Infrastructure Private Limited and M/s. Toonz Animation India Private Limited with M/s. Asian Institute of Films and Media Studies Private Limited and the appointed date of the Scheme is fixed as opening hours of 01st April, 2019. The Transferee Company is directed to comply with the provisions of Section 232 (3) (i) of the Companies Act, 2013 by making an application with Registrar of Companies, Kerala for payment of the balance fee as applicable under the provisions of Acts and Rules framed thereunder - the scheme is approved.
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2021 (1) TMI 314
Restoration of the Appellant Company in the register maintained by the Registrar of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- It is observed that the total demand raised by the Income Tax Department for the Assessment Years from 2008-09 to 2017-18 is of ₹ 7,740, which has been paid by the Appellant Company on 12.12.2020 and 14.12.2020 i.e., after the date of striking off its name by RoC - That the payment of aforesaid demand cannot be considered as a basis to justify the need of restoration of the name of the Appellant Company in the Register of RoC, as by doing so the Appellant Company has only discharged its obligation by paying the aforesaid demand as per mandate of Section 250 of Companies Act, 2013. This Bench is not inclined to interfere with the striking off action taken by the RoC against the Appellant Company under Section 248(5) of the Companies Act 2013 - Appeal dismissed.
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Insolvency & Bankruptcy
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2021 (1) TMI 313
Direction to Respondent No.1 to pass directions, guidelines or regulations under Section 196 of the Code - petitioner submits that in the present case applications having been filed against the promoters of the respondent nos. 5 and 6 under Section 25(2)(j) of the Code further CIRP proceedings of such companies must not be proceeded with - HELD THAT:- The provisions, especially Section 26 of the Code would clearly show that it is for the learned NCLT to consider the effect of the applications under Section 25(2)(j) and Section 29A of the Code at an appropriate stage of consideration of the Resolution Plan, if not earlier. The Resolution Professional shall, at the time of submitting the Resolution Plan for approval of the learned NCLT, disclose details of applications filed under Section 25(2)(j) of the Act to the learned NCLT, for the learned NCLT to take an informed decision on the Resolution Plan. It is thus clear that it would be for the learned NCLT to consider the applications under Section 25(2)(j), if pending, and the effect thereof, especially in light of Section 29A of the Act, on the Resolution Plan submitted for its approval under Section 30 of the Code - as admittedly the proceedings with respect to respondent nos.5 and 6 are still pending before the learned National Company Law Tribunal, the present petition at this stage cannot be entertained. Petition dismissed.
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2021 (1) TMI 312
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - allegation that the demand notice was issued without any authority - HELD THAT:- It is well settled by now that delivery of a demand notice of unpaid operational debt by the Operational Creditor upon the Corporate Debtor under Section 8(1) of the I B Code is a sine-qua-non for initiation of Corporate Insolvency Resolution Process (CIRP) by Operational Creditor under Section 9 of the I B Code . Format in which the demand notice is to be issued by the Operational Creditor in terms of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 is prescribed in Form-3. The delivery of notice is to be effected in the prescribed form which must emanate from the Operational Creditor or any authorized person on its behalf. In the case in hand, it is not in controversy that the demand notice in prescribed form has been issued by the lawyer of Operational Creditor and delivered upon the Corporate Debtor. Perusal of the demand notice forming Annexure A-16 to the appeal paper book at Page 227, Volume-II brings it to fore that the same has been issued by one Mr. Sumit Kumar, Advocate under instructions from and on behalf of Operational Creditor. It is the dictum of the Hon ble Apex Court in MACQUARIE BANK LIMITED VERSUS SHILPI CABLE TECHNOLOGIES LTD. [ 2017 (12) TMI 850 - SUPREME COURT ] that a demand notice delivered by an Advocate duly instructed by the Operational Creditor would be a valid demand notice for purposes of initiation of CIRP. In view of the same, notice delivered could not be held to be bad in law unless it was shown that the lawyer was not duly instructed. The finding recorded by the Adjudicating Authority in regard to invalidity of service of mandatory demand notice under Section 8(1) of the I B Code cannot be sustained - the matter is remitted back to the Adjudicating Authority with direction that in the event of the application being complete in all respects, it may, having regard to the key ingredients of debt and default, pass an order of admission or otherwise as warranted under law - Appeal allowed by way of remand.
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Service Tax
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2021 (1) TMI 311
Principles of Natural Justice - principal argument of the writ applicant is that without giving any opportunity to even file reply to the show cause notice, and that no opportunity of hearing was given even before passing the impugned order in original - HELD THAT:- The writ applicant has been able to make out a strong prima facie case to have an ad interim order in his favour in terms of para 29(c) of the writ application. Let Notice be issued to the respondents, returnable on 8th February 2021.
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Central Excise
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2021 (1) TMI 337
Rectification of Mistake - mistake apparent on the face of record - review of order - Section 35C (2) of the Central Excise Act, 1944. As per Ashok Jindal, HELD THAT:- There are no merit in the applications for rectification of mistake filed by the Revenue. If any consideration is given to the same, the same shall be amount to review of our own order which is not permissible in law - the applications for rectification of mistake filed by the Revenue is dismissed. As per Sanjiv Srivastava: The present applications are undoubtedly and undisputedly the applications filed under Section 35C (2) of the Central Excise Act, 1944 for rectification of the mistake apparent from the record. It is settled law as to what can be the scope of the application made under this section and what is the mistake apparent from the records which can be rectified under this section. In the application under consideration, applicant revenue is seeking to persuade the tribunal to reconsider the evidence and the facts that were there at the time of deciding the appeal. Such reconsideration and reappreciation of the evidence is not what is envisaged under section 35 C (2) - the distinction between the appeal and application for rectification of mistake is quite obvious and even a wrong finding of fact or in law needs to be challenged in an appeal before the appellate authority and cannot be rectified by recall of order in terms of Section 35 C (2). There are no merits in the applications filed by the revenue - application dismissed.
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CST, VAT & Sales Tax
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2021 (1) TMI 310
Validity of assessment order - 'C' Forms - petitioner contends that the 3rd respondent had issued notices on 26.08.2019 and 19.11.2019, and a Final Notice dt.07.03.2020 through e-mail to petitioner; and that such a mode of service is not contemplated in Rule 64(1)(b) of the Telangana VAT Rules, 2005 - HELD THAT:- Respondents, does not dispute that Rule 64(1) (b) of the Telangana VAT, 2005 which is applicable does not contemplate service of notices through e-mail on an assessee. He also does not dispute the proposition that it is open to an assessee to submit 'C' Forms even after the finalization of the assessment. There has been a violation of principles of natural justice causing grave prejudice to petitioner - the matter is remitted to 3rd respondent for fresh consideration; the 3rd respondent shall serve on petitioner pre-assessment show-cause notice indicating the turnover proposed to be taxed and the tax proposed to be levied thereon in accordance with Rule 64(1)(b) of the Telangana VAT Rules, 2005 - Petition allowed by way of remand.
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2021 (1) TMI 309
Evasion of tax u/s 54(1)(14) of U.P. Value Added Tax Act - inadvertent mistake on his own part/the foreman of the firm under whom supervision the stickers containing the MRP of Premium Grade Tiles pasted in all boxes/cartoons even boxes/cartoons containing to Silver Grade Tiles and Gold Grade Tiles boxes loaded in the vehicle - purchasing dealer liable for mistakes and actions by the consignee - Whether there was an intention on the part of revisionist and under Section 54(1)(14) VAT Act it is mandatory to examine the material on record and discuses the merit of matter and record the clear finding with regard to intention whereas, there is no material on record in the order of assessing authority regarding the physical verification of each boxes/cartoons? HELD THAT:- This Court finds from a perusal of the explanation given by the revisionist before the Assessing Officer and before the First Appellate Court that indeed the explanation differs before both the Authorities. The intention to evade tax is writ large as the transaction itself shows different valuation in invoice from the actual value of the goods being imported by the revisionist - this Court does not find any factual or legal infirmity in the order impugned. The Trade Tax Revision stands dismissed.
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2021 (1) TMI 308
Demand of differential amount of tax due with interest and penalty - validity of procedure adopted under the Maharastra VAT Act - Reversal of ITC - reopening of assessments - HELD THAT:- Reliance placed in M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [ 2017 (3) TMI 536 - MADRAS HIGH COURT] and after analyzing in detail the rival contentions raised by parties and referring to the earlier decisions governing the issue, it has been held that this Court is fully convinced that the procedure adopted by the respondent, Assessing Officers in all these cases are half baked attempts, which have not yielded results and these cases are before this Court or before the Appellate Authorities and all that the Assessing Officers can record is that they have issued show cause notices or passed orders reversing the Input Tax Credit with no appreciable impact on the revenue collection. The impugned order, which cannot be sustained, is set aside - The concerned assessing officer shall issue fresh show cause notice with all required details in respect of levy of tax for mismatch invoices and the Petitioner shall be entitled to submit his explanation within the prescribed time - Petition disposed off.
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Indian Laws
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2021 (1) TMI 307
Grant of Bail - Dishonor of Cheque - Cheating - According to complainant, as and when she had been visiting for training at Gurgaon, petitioner, who was posted at Gurgaon at that time, had been booking Hotel for her, but at the time of issuance of bill, on advise of the petitioner, she had been taking bill in the name of one person only whereas petitioner had been keeping bills having details of two persons with him and later on petitioner had made a complaint in the Company for claiming amount on the basis of wrong bills and petitioner had started to threaten her - HELD THAT:- At this stage, petitioner is entitled for bail. The petition is allowed and petitioner is ordered to be released on bail under Sections 376, 506 and 417 IPC, on his furnishing personal bond in the sum of ₹ 1,00,000/- with two sureties, one of which shall be local surety as undertaken by and on behalf of the petitioner, each in the like amount, to the satisfaction of the trial Court within three weeks from today, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the presence of petitioner/accused at the time of trial and also subject to the conditions imposed.
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2021 (1) TMI 306
Dishonor of Cheque - acquittal of the accused - main contention of the complainant in this appeal is that the Trial Judge failed to consider the evidence of PWs.1 and 2 and also the principles laid down in the judgments referred in the grounds of appeal and also failed to take note of accused Nos.1 and 2 have not entered into the witness box to rebut the evidence of the complainant - HELD THAT:- This Court has to re-appreciate the material available on record. The present appeal is filed against the order of acquittal. This Court has to re-appreciate the material on record and arrive for a conclusion whether the trial Judge has considered the material available on record or not. This Court also given anxious consideration to the principles laid down in the Judgments referred supra both by Complainant's Counsel and accused Counsel. In keeping the principles and also considering the material available on record, this Court has to examine whether the Trial Court Judgment is perverse and not based on the material available on record. It is important to note that based on the complaint, it is the case of the complainant that the accused had raised two invoices for supply of 6000 MTs for shipment of the business transaction and these two invoices are not in existence as admitted by P.W.1 in the cross-examination. However, the complainant relied upon the documents-Exs.P8 to P10. But in the cross-examination, it is categorically admitted that Exs.P8 to P10 bears the date prior to the subject matter of the cheque and also there is contrary evidence as against the contents of the complaint and in the complaint, it is in respect of 6000 MTs. and in the affidavit it is mentioned as 25000 MTs. It is also categorically admitted that Ex.P10 is only a Proforma Sale Invoice. It is also important to note that though P.W.2-R.Kannan was examined and claims that he is having the personal knowledge and giving evidence based on the records. He denies the initiation of other three complaints before the Court. Even he had gone to the extent of denying the three complaints filed against these accused persons at Delhi, so also initiation of arbitration proceedings. It is also important to note that Ex.P10, which has been relied upon by the complainant is only a Proforma Sale Invoice and legal notice claim is in respect of two invoices for about 6000 MTs, but documents produced before this Court as Exs.P8 to P10 are contrary to the complaint averments as well as the legal notice. Hence, it is clear that Ex.P8 is in respect of 25000 MTs. of iron ore and claim is to the tune of ₹ 2,50,00,000/-. The complainant has changed his version while leading the evidence through the witness P.W.2-Kannan. The complainant being the Central Government Undertaking ought to have produced the documents with regard to the transaction, which had taken place between the complainant and the accused. It is also important to note that in the cross- examination, P.W.2-Kannan was cross-examined suggesting that in terms of MOU, it is agreed to transact only to the tune of ₹ 14.82 Crores. But the accused already made the payments more than ₹ 20 Crores and witness says he is not aware of the same. Hence, it is clear that the witness - P.W.1 is not aware of the transaction taken place between the complainant and the accused. It is also important to note that Exs.C1 to C3 are got marked as Court documents. The complainant does not deny the same. The complainant is not sure about whether it is for the supply of 6000 MTs. iron ore or towards supply of 25000 MTs. iron ore and also the invoices which have been pleaded in paragraph No.2 of the complaint have not been placed before the Court. It is also important to note that, P.W.2, who has been examined subsequently, is not aware of the transaction between the complainant and the accused in toto and he is not aware of any proceedings initiated by the accused in Delhi as well as in Bengaluru. It is also pertinent to note that the complainant being a Central Government Undertaking has not maintained any account with regard to the transaction and produced the same before the Court. There must be a proof with regard to ascertaining the liability of the accused. In the absence of said statement of account before the Court, the Court cannot come to the conclusion that the cheques are issued towards the debt or liability. It is also important to note that P.W.2 categorically admits that Ex.P10 was only a Proforma Sale Invoice was raised. When such being the case, in the absence of relevant documents before the Court, the Court cannot come to a conclusion that the said cheques are issued in discharge of liability. No doubt, it is settled principle that once the cheque is admitted and not denied the signature; the Court has to draw the presumption. In the case on hand, the accused had rebutted the case of the complainant and even after rebutting the evidence of the complainant, even though, the burden shifts on him but further fails to prove the case of the complainant. The Complainant did not choose to place the material before the Court either the invoices or the statement of accounts. When such being the case, the accused are rebutted the case of the complainant. There are no error committed by the Trial Court in appreciating both oral and documentary evidence and rightly come to the conclusion that the complainant has failed to prove its case. This Court can only reverse the finding of the Trial Court if the findings of the Trial Court is perverse and the material evidence is not considered then to exercise its appellate jurisdiction to reverse the findings and there is no error committed by the Trial Court in appreciating the case of the complainant. Hence, it is not a fit case to reverse the findings of the Trial Court. Appeal dismissed.
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2021 (1) TMI 305
Dishonor of Cheque - quantum of sentence of imprisonment - section 138 of NI Act - HELD THAT:- The revision petitioner / accused had made a voyage of two rounds before the Trial Court and the Sessions Judge's Court in the matter and prior to the remanding of the matter by the Sessions Judge's Court and subsequent to the remand of the matter also he was convicted and the same was confirmed. Therefore, the accused apart from not pleading guilty under Section 252 Cr.P.C. has made futile exercise from the year 2000 till date in proving his alleged innocence towards the alleged offence but he has failed in his repetitive attempts. There are no reasons for setting aside the sentence of imprisonment in toto. Considering the fact that at the earliest point of time when he was convicted for the first time in the same case by the Trial Court on 07.09.2006, he was sentenced to undergo imprisonment only for two months and also imposed with fine and in the impugned Judgment passed by the Trial Court, it has not given any reason for sentencing him to undergo simple imprisonment for one year and also considering the fact that even the Sessions Judge's Court also has not given its reasoning for confirming the said sentence of imprisonment, the said sentence of imprisonment of one year as simple imprisonment apart from payment of the fine amount is not proportionate to the gravity of the proven guilt against the accused. On the other hand, it is slightly exorbitant to the proven guilt. Therefore, considering the facts and circumstances of the case and also of the fact that the accused made two trips before the Trial Court as well as the Session Judge's Court and thus has made a futile exercise in ensuring the setting aside of his conviction which consequently has made the complainant to be deprived of the cheque amount for more than two decades, confining the sentence only to the fine amount would not meet the ends of justice and imposing the sentence of imprisonment is also warranted in the circumstances of the case - However, one year simple imprisonment imposed since being on the higher side, the circumstances of the case warrant confining it to two months simple imprisonment which was originally and at the earliest point of time imposed against him by the Trial Court in its Judgment dated 07.09.2006 and that would be reasonable. Though the Judgment of conviction for the offence punishable under Section 138 of the N.I. Act holding the accused / petitioner guilty of the alleged offence is confirmed, however, the Order on sentence is modified - petition allowed in part.
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2021 (1) TMI 304
Recovery of additional tax - whether the petitioner is liable to pay the tax as demanded from him and as confirmed by the Appellate Authority and whether the denial of benefit of Rule 22-A of Uttar Pradesh Motor Vehicles Taxation Rules, 1998 was a valid exercise of power? - HELD THAT:- A plain reading of the Taxation Act and the Rules makes it clear that incidence of tax is use of the vehicle and the time for payment of the tax is specified under Section 9 of Motor Vehicles Taxation Act, 1997. Thus, for imposition of tax, it is essential to establish that the vehicle is in use . Interestingly, under section 12 of the Taxation Act, specific provisions have been provided for the contingency where the operator and the owner of the motor vehicle does not intend to use his vehicle for a period of one month or more, in fact, a perusal of Section 12(2) provides for the procedure also wherein the owner or the operator is only to surrender the certificate of registration and token, if any, to the Taxation Officer and in fact, a bar is imposed from imposition of the tax or additional tax in respect of such vehicle for the period during which the vehicle remains withdrawn from use and the aforesaid documents remains surrendered with the Taxation Officer. Proviso to the said Section 12(2) confers a power on the Taxation Officer to impose the tax or the additional tax, in the event, the vehicle is found to be plying during the period when the documents as mentioned in Section 20(2) of the Act remains surrendered. Thus, a plain reading of Section 12 shows that a complete Code is prescribed .A conjoint reading of Section 12 (2) and Rule 22(4), relied upon by the counsel for the respondents make it clear that an additional action is to be performed by the owner if non-use of the vehicle is for more than three calendar months. It is clear that the date of manufacture of the vehicle is 1992 and the validity of the registration is 20 years and the fact that the fitness certificate of the vehicle has never been extended after 13.4.2009 and no fitness certificate has been granted thereafter, in terms of the mandate of the Motor Vehicle Act, the vehicle itself could not have been used as the same would have been in violation of the express mandate of Sections 55 and 56 of the Motor Vehicles Act. The stand of State is that although specific information was given by the petitioner for cancellation of registration, however, the State has taken a plea that as the petitioner failed to move an application after the expiry of three months for extension of surrender of registration in terms of Rule 22(4), the petitioner was liable to pay the demand on account of tax and additional tax from the period 01.12.2010 to 31.10.2012 and for a subsequent period from 01.11.2012 to 30.4.2013 - A perusal of the said order dated 11.2.2014 makes it clear that the applicability or the benefit of Rule 22-A to the facts of the case were never considered by the Taxation Officer. It is clear that once the operator/owner of the vehicle informs regarding surrender of registration certificate, a burden is cast upon the Taxation Officer to charge the tax and the additional tax only on being convinced that the vehicle is found plying as no tax can be levied in terms of Section 12(2) of the Motor Vehicles Taxation Act - Even otherwise admittedly the registration comes to an end after the expiry of 20 years, as admittedly, the vehicle was manufactured in the year 1992, the period of 20 years would expire in the year 2012 and thus no tax could have been imposed after the expiry of the said 20 years. As such the order of the Taxation Officer imposing tax for the period 01.11.2012 to 30.4.2013 amounting to ₹ 47,196/- is liable to be set aside to the extent of charging tax for the period 1.1.2013 to 30.4.2013. As regards the demand of tax amounting to ₹ 1,59,620/- for the period 01.12.2010 to 31.10.2012, the mater is remanded to the Taxation Officer to consider the grant of benefit under Rule 22-A of the Taxation Rules after making such enquiry as he may deem fit in terms of mandate of Rule 22-A. The writ petition is partly allowed.
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