TMI Tax Updates - e-Newsletter
January 9, 2020

Case Laws in this Newsletter:

Income Tax Customs Corporate Laws Insolvency & Bankruptcy Central Excise CST, VAT & Sales Tax Indian Laws

Articles

1. Budget 2020 suggestions for more result orientation in tax litigation administration.

   By: DEVKUMAR KOTHARI

2. New Insight for Renting of a Motor Vehicle under GST on RCM

   By: Gella Praveenkumar

3. Refund cannot be denied merely based on the Circular

   By: Ganeshan Kalyani

4. HC: Attachment cannot be made on Petitioner’s property to recover dues of erstwhile owner

   By: Bimal jain

5. INTEREST ON DELAYED PAYMENT OF REFUND OF COUNTERVAILING DUTY

   By: DR.MARIAPPAN GOVINDARAJAN

News

1. CCI Releases ‘Market Study on E-commerce in India: Key Findings and Observations’

2. Cabinet approves Capital Grant as Viability Gap Funding to Indradhanush Gas Grid Limited for setting up the North East Natural Gas Pipeline Grid

3. Cabinet approves ‘In Principle’ strategic disinvestment of equity shareholding of Minerals & Metals Trading Corporation Limited, National Mineral Development Corporation, MECON and Bharat Heavy Electricals Ltd. in Neelachal Ispat Nigam Limited. a JV Company with two Government of Odisha State PSUs

4. Journey towards Inclusive Growth in India (Opening Remarks by Shri Shaktikanta Das, Governor, Reserve Bank of India - January 7, 2020 - at the Third Suresh Tendulkar Memorial Lecture by Mr. Tharman Shanmugaratnam, Senior Minister, Republic of Singapore)

5. First Advance Estimates of National Income, 2019-20

Notifications

DGFT

1. 40/2015-2020 - dated 8-1-2020 - FTP

Amendment in import policy and incorporation of Policy condition under HS code 0801 11 00 of Chapter 8 of ITC (HS), 2017, Schedule - I (Import Policy)

2. 39/2015-2020 - dated 8-1-2020 - FTP

Amendment in import policy of items under Exim Code 1511 90 of Chapter 15 of ITC (HS), 2017, Schedule - I (Import Policy)

GST - States

3. G.O.Ms.No.1, - dated 1-1-2020 - Andhra Pradesh SGST

THE ANDHRA PRADESH GOODS AND SERVICES TAX (AMENDMENT) ACT, 2019 (ACT No. 37 OF 2019)- DATE ON WHICH THE PROVISIONS COME INTO FORCE

4. 4-DB/2019 - No. FD 47 CSL 2017 - dated 21-12-2019 - Karnataka SGST

Seeks to give effect to the provisions of rule 46 of the KGST Rules, 2017

5. 24/2019 - No. FD 47 CSL 2017 - dated 21-12-2019 - Karnataka SGST

Seeks to notify the class of registered person required to issue invoice having QR Code

6. 23/2019 - No. FD 47 CSL 2017 - dated 21-12-2019 - Karnataka SGST

Seeks to notify the common portal for the purpose of e-invoice

Income Tax

7. 03/2020 - dated 6-1-2020 - IT

Income-tax (2nd Amendment) Rules, 2020

Highlights / Catch Notes

Income Tax

• Assessment Reopened u/s 147 for SIPL's Alleged Non-Disclosure of Transactions with Moral as Accommodation Entries.

  Case-Laws - HC : Reopening of assessment u/s 147 - Addition u/s 68 - transactions of providing accommodation entries - If the transactions undertaken by SIPL with Moral are indeed not genuine, as now reasonably believed by the Assessing Officer, it would not be correct to say that SIPL had disclosed fully and truly all the material facts for its assessment for the relevant assessment year.
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• No Penalty for Cash Loans Between Relatives u/ss 271E, 271D; Transactions Exempt from Section 269SS Violation.

  Case-Laws - AT : Penalty u/s 271E/271D - accepting loans in cash - The cash loans in question therefore cannot be said fall within the mischief of Section 269SS of the Act as near relatives cannot be said to be “Other person” - In any event in the circumstances of the case, there was reasonable cause for accepting loans in cash. - No penalty.
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• Retention Money Not Taxable u/s 115JB Due to Uncertainty of Refund; Additions Deleted by Court.

  Case-Laws - AT : Taxation of retention money not accrued during the year - Accrual of income - as per AO addition has been rightly made during the course of assessment as well as in section 115JB MAT computation - The Revenue fails to rebut the clinching fact that there is no surety about the impugned retention money to be finally refunded to the taxpayer - Additions deleted.
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• Interest Payment Exempt u/s 194A(3)(f), No Default or Interest Levy u/ss 201(1) and 201(1A.

  Case-Laws - AT : TDS u/s 194 - Since this Tribunal has already taken a view that the person to whom interest was paid was falling within the ambit of section 194A(3)(f), there cannot be any order treating the assessee as an assessee in default u/s. 201(1) and also levying interest u/s. 201(1A)
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• Section 271(1)(c) Penalty Not Applicable to Income Surrendered During Surveys; Explanation 5A Limited to Search Actions.

  Case-Laws - AT : Penalty u/s 271(1)(c) - income surrendered by the assessee during survey - Explanation 5A is exclusively in the case of search and seizure action u/s 132 and the said deeming provision cannot be applied in the case of survey conducted u/s 133A.
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• Section 54B Tax Exemption Denied for Investments in Spouse's Name; Must Be in Assessee's Name Only.

  Case-Laws - AT : Benefit of exemption u/s 54B - investment on agricultural land made in the name of spouse of the assessee - In view of the clear provisions, investment made by any other person particularly the spouse of the assessee, cannot be entitled for deduction u/s 54B.
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• No deemed rent addition under Income Tax Act Section 23(1)(a) for properties still under construction or not ready.

  Case-Laws - AT : Addition on account of notional rent u/s. 23(1)(a) - no addition on account of notional deemed rent u/s.23(1)(a) can be made, once the property itself was either in the stage of construction or was not ready for use.
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Customs

• Company Director Penalized for Mis-Declaring Goods; Responsibility Assigned Despite CHA Non-Involvement.

  Case-Laws - AT : Imposition of penalty on Director of the company - mis-declaration of goods - It is anybody’s guess that the CHA will not be benefited in any manner by this mis-declaration - The Appellant (Director) being at the helm of the affairs of the Company has liaison with valid suppliers, CHA and the Customs Authorities.
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Corporate Law

• Company Removed from Register for Not Filing Returns; Directors Disqualified, Impacting Shareholders' Interests.

  Case-Laws - AT : Striking of the name of the appellant company from Register of Companies - disqualification of directors - non filing of annual returns - The order of striking of name of the company from the register of companies is certainly prejudicial to the shareholders of the company
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Indian Laws

• Cheque Dishonor for Signature Issues Still Valid u/s 138 of Negotiable Instruments Act, 1881.

  Case-Laws - HC : Dishonor of Cheque - whether in case of dishonour of cheque on the ground that 'signature does match with specimen' 'signature incomplete' 'signature differ' etc., complaint under Section 138 NI Act, 1881 is maintainable? - The Court cannot quash the complaint on this ground.
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IBC

• Liquidator Can Extend Payment Period in Asset Auction to Boost Participation and Returns, Based on Justified Reasons.

  Case-Laws - Tri : Public auction of the assets of the Corporate Debtor - if the Liquidator, for justified reasons deems it fit to increase the period of payment as it would help maximize participation and returns of the auction, then the Liquidator in his discretion can be allowed to do so
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Central Excise

• Refund of CENVAT Credit Allowed for Inputs Used in Goods Supplied to 100% Export Oriented Units u/r 5.

  Case-Laws - AT : Refund of accumulated CENVAT Credit - inputs used in manufacture of finished goods cleared by them to 100% EOU - the benefit of rule 5, is admissible in respect of clearances made without payment of duty in terms of Rule 19 of Central Excise Rules, 2002
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VAT

• Penalty for Form 38 Discrepancy Overturned: Officer Failed to Complete Column 8 at Check Post; Tribunal Agrees.

  Case-Laws - HC : Imposition of penalty - discrepancy in Form 38, E-Sugam form - the Officer managing the Check Post after verifying the goods should have filled up the Column 8 of Form 38 in accordance with the documents and there was no occasion for imposing a penalty as has been done by the Assessing Officer and upheld by the Commercial Tax Tribunal.
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Case Laws:

• Income Tax

• 2020 (1) TMI 262
  Bogus forfeiture of shares - amount invested in the forfeited shares - Short Term Capital Loss - HELD THAT:- Special Leave Petitions are dismissed on the ground of delay.

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• 2020 (1) TMI 261
  Penalty u/s 271(1)(c) - excess claim of exemption u/s 54EC - HELD THAT:- Delay condoned. The special leave petition is dismissed.

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• 2020 (1) TMI 260
  Addition u/s 69C - capitation fee for admission in medical college - search conducted on medical college - Chairman and managing trustee of college had accepted receipt of capitation fees and name of assessee son was also appeared - Assessee, stated before AO that the admission process was undertaken by the Assessee s father-in-law - HELD THAT:- SLP dismissed.

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• 2020 (1) TMI 259
  Addition of excise duty - valuation of closing stock made u/s 145A - special audit scope - HELD THAT:- Learned counsel for the petitioner, on instructions, issued by the Department of Revenue, Ministry of Finance vide F. No.390/Misc./116/2017-JC dated 22.08.2019, seeks permission to withdraw this Special Leave Petition along with pending applications therein due to low tax effect. Permission granted, subject to just exceptions. The special leave petition and pending applications are dismissed as withdrawn, leaving question of law open.

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• 2020 (1) TMI 258
  Carbon receipts - accrual of income - treatment as capital receipt or revenue receipt - HELD THAT:- As decided in own case [ 2017 (3) TMI 392 - GUJARAT HIGH COURT] carbon receipts were neither sold nor transferred by the assessee during the year under consideration and therefore, the same cannot be said to have been included in the income of the assessee in the year under consideration. It cannot be said that the learned CIT(A) as well as the learned Tribunal have committed any error in deleting the addition and holding that as neither the carbon receipts were sold and/or transferred in favour of foreign companies in the year under consideration, the same cannot be included as receipt / income in the year under consideration. - Decided in favour of assessee.

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• 2020 (1) TMI 257
  Reopening of assessment u/s 147 - Addition u/s 68 - transactions of providing accommodation entries - whether AO has not independently applied his mind, and he has proceeded on the borrowed conclusions contained in the Investigation Report? - HELD THAT:- The petitioner does not deny the fact that it, indeed, had financial transactions with Moral, whereunder it received substantial amounts of Rs. 90.32 crores in FY 2011-12. Moral has been found to be indulging in provision of accommodation entries, and it appears that it carried out only that business and nothing else. There is nothing to show that while passing the assessment order, the Assessing Officer had examined the aspect of genuineness of the transaction undertaken by the petitioner with Moral. A perusal of the original assessment order shows that the Assessing Officer had accepted the claim made by the petitioner/ assessee with regard to the genuineness of the transaction without any scrutiny, and by accepting the statement of the petitioner as truthful. At that stage, the material information, which the petitioner withheld, and did not disclose, was that it was dealing with an entity who was engaged in the business of providing accommodation entries. Assessing Officer had very good reasons to believe that the amounts received by the petitioner from Moral also partake of the same colour as the other transactions of Moral undertaken with other entities. The whole business model of Moral, as is evident from the Investigation Report, was merely to rotate funds by resort to a process of layering through other entities such as M/s Brilliant Metals Pvt. Ltd., M/s Progressive Alloys (India) Pvt. Ltd, M/s Unnati Alloys Pvt. Ltd., M/s Forward Minerals Metals Private Limited etc., taken note of in the Investigation Report. It appears from the Investigation Report that Moral had nothing to show for, to establish the undertaking of any genuine sale and purchase, of much less of the products that the petitioner claims to have sold to Moral. Argument on behalf of the petitioner that since the petitioner had fully disclosed the transactions undertaken with Moral, there is no suppression on the part of the petitioner and that it could not be said that income chargeable to tax had escaped assessment by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment in relation to the assessment year 2012-13 has no merit in the light of the above discussion, and in the light of the decisions cited hereinabove in the case of RDS Project Limited [ 2020 (1) TMI 89 - DELHI HIGH COURT] Mere production before the Assessing Officer of the Account Books, or other evidence, from which material evidence could, with due diligence, have been discovered by the Assessing Officer, would not necessarily amount to disclosure within the meaning of the First Proviso to Section 147. The Assessing Officer, while framing the assessment for the assessment year 2012-13 took the assessee SIPL for its word when it claimed that the transactions undertaken by it with Moral were genuine sale transactions. However, that fundamental premise is now shaken, since Moral has been found to be a completely tainted entity embroiled in very large scale dubious transactions of providing accommodation entries. If the transactions undertaken by SIPL with Moral are indeed not genuine, as now reasonably believed by the Assessing Officer, it would not be correct to say that SIPL had disclosed fully and truly all the material facts for its assessment for the relevant assessment year. Despite the aforesaid being a gross case and despite the decision of the Supreme Court in NRA Iron Steel Pvt. Ltd. [ 2019 (3) TMI 323 - SUPREME COURT] and our earlier decision in RDS Project Limited [ 2020 (1) TMI 89 - DELHI HIGH COURT] being brought to the notice of learned counsel for the petitioner, learned counsel for the petitioner continued to press the matter at the expense of judicial time, which could have been better utilised to deal with other pending cases. We are, therefore, inclined to subject the petitioner to costs for unjustifiably pressing the petition beyond a point. We, accordingly, dismiss this petition with costs of Rs. 1 lakhs to be paid to The Delhi High Court Advocates Welfare Trust. The costs shall be paid within four weeks of the receipt of this decision.

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• 2020 (1) TMI 256
  Disallowance of deduction u/s 35(1)(ii) - donation made to Herbicure Health Care Bio Herbal Research Foundation (in short, HHCBHRF) - HELD THAT:- As decided in M/S. DESMET REAGENT PVT. LTD. [ 2018 (10) TMI 674 - ITAT KOLKATA] similar disallowance made in respect of donation given to HHCBHRF and claimed deduction U/s 35(1)(ii) of the Act was allowed in favour of the assessee

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• 2020 (1) TMI 255
  Bogus LTCG/STCL - trading of penny stocks - contention of the assessee is that she has purchased the shares from banking channels and as such when the purchase is genuine then the sale cannot be questioned itself - HELD THAT:- Chart of sale and purchase of shares of M/s Cressanda Solution Ltd., I am of the view that assessee has purchased shares of Cressanda Solution Ltd. Shares after suspension /revocation i.e. after February, 2013 and March, 2013, as indicated in the aforesaid Table. Hence, no plausible explanation as well as documentary evidence has been provided by the assessee to contradict this finding. Therefore, the short term capital loss on account of sale and purchase of shares M/s Cressanda Solution Ltd. is confirmed and hence, the action of the Ld. CIT(A) is hereby affirmed on this issue. As regards the balance loss for the sale and purchase of sales of Pearl Agri (15000) shares and Pearl Elec (15000) shares. After considering the written submissions alongwith the documentary evidences filed by the assessee and some chart filed by the assessee showing the STCL, AO has not asked specifically for the reasons for causing the loss with supporting evidences from the assessee and assesee has also not explained the reasons for causing the loss and supporting evidence. It would be in the interest of justice, if these issues of STCL on account of sale and purchase of shares of Pearl Agri (15000) shares and Pearl Elec (15000) shares be set aside to the file of the Assessing Officer to examine the same as per law, after giving full opportunity to the assesee with the clear directions to the AO to call for the reasons for causing the loss on account of sale and purchase of shares of two companies with the supporting documentary evidences. If the AO is satisfied with the explanation given by the assessee with the supporting evidences, then the AO is at liberty to decide the same, as per law, after giving full opportunity to the assessee to substantiate its claim.- Appeal of the Assessee is partly allowed for statistical purposes.

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• 2020 (1) TMI 254
  Denying benefit of section 54 - AO did not allow exemption to the assessee on the ground that residential house was not constructed within three years of sale of house property and even at the end of the stipulated period of three years, the house was incomplete - HELD THAT:- What is required under the section is that the assessee should take steps to make investment in a residential house. Thus, emphasis is on the utilisation or investment of capital gain in construction of residential house. Claim of the assessee is that he had invested full sale consideration, and over and above that, some more money and total investment is at Rs. 64.74 lakhs. Hon ble High Court of Madhya Pradesh in the case of Smt. Shashi Varma [ 1996 (3) TMI 65 - MADHYA PRADESH HIGH COURT] has held that while allowing exemption u/s 54 of the Act, investment for acquisition of flat under the Scheme of DDA, where first instalment was paid, was much more than the capital gains, deduction is to be allowed as section 54 does not require that the construction of new house should necessarily be completed within two years where substantial investment is made in construction of house. Requirement of section 54 of the Act is for the assessee to have either purchased a residential house, being a new asset, within the stipulated period or construct a residential house within a period of three years from the date of transfer. The section does not prescribe the completion of construction of residential house and the thrust is on the investment of net consideration received on sale of original asset and start of construction of a new residential house. It is clear that for the Assessment Year in question, all that is required for the assessee to avail exemption contained in the section is to utilise the amount of capital gain for purchase and acquisition of new asset. Since the assessee has claimed that he has invested Rs. 64,74,946/-, which is higher than the amount of capital gain computed by the Assessing Officer, the assessee is very much eligible for claim of exemption u/s 54 of the Act. Since no documentary evidences have been furnished and only a claim has been made, we deem it fit to restore the issue to the file of the Assessing Officer. The assessee is directed to demonstrate that he has already invested Rs. 64,74,946/- towards construction of house and the Assessing Officer is directed to examine the documentary evidences and if found correct, allow benefit of section 54 - Decided in favour of assessee for statistical purposes.

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• 2020 (1) TMI 253
  Penalty u/s 271E/271D - accepting loans in cash - HELD THAT:- As decided in SMT. DEEPIKA, VERSUS ADDL. COMMISSIONER OF INCOME TAX, RANGE 5, BANGALORE. [ 2017 (10) TMI 1405 - ITAT BANGALORE] the daughter and member of the HUF have given money for certain specific purpose. The source and genuineness of the loan has been accepted by the AO. The cash loans in question therefore cannot be said fall within the mischief of Sec.269SS of the Act as near relatives cannot be said to be Other person within the meaning of Sec.269SS of the Act. In any event in the circumstances of the case, there was reasonable cause for accepting loans in cash. We, set aside the orders of the Ld.CIT(A) and cancel the penalties levied u/s. 271E/271D - Decided in favour of assessee.

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• 2020 (1) TMI 252
  Taxing gain on relinquishment of rights under an agreement to purchase undivided share of land and construction agreement - Income from business OR capital gain - HELD THAT:- Test laid down by the Hon ble Supreme Court in the decision of G. Venkataswami Naidu [ 1958 (11) TMI 5 - SUPREME COURT] is to see as to, what is the nature of the commodity purchased and resold and in what quantity was it purchased and resold? If the commodity purchased is generally the subject-matter of trade, and if it is purchased in very large quantities, it would tend to eliminate the possibility of investment for personal use, possession or enjoyment. Did the purchaser by any act subsequent to the purchase improve the quality of the commodity purchased and thereby made it more readily resaleable ? Applying the aforesaid test, we are of the view that relinquishment of rights under an Agreement to acquire property is not a commonly subject matter of trade. We are of the view that no other facts or circumstances are brought on record to show that the Assessee indulged in an Adventure in the nature of trade when he relinquished his rights under an agreement. Therefore the right acquired under the Agreement by the Assessee has to be regarded as Capital Asset . Giving up of a right to claim specific performance by conveyance in respect to an immovable property, amounts to relinquishment of the capital asset. Therefore, there was a transfer of capital asset within the meaning of the Act. The payment of consideration under the agreement of sale, for transfer of a capital asset, is the cost of acquisition of the capital asset. Therefore, in lieu of giving up the said right, any amount received, constitutes capital gain and it is exigible to tax. However, as is clear from s. 48, before the income chargeable under the head capital gains is computed, the deductions set out in s. 48 has to be given to the assessee. It is only the amount thus arrived at, after such deductions under s. 48, would be the income chargeable under the heading capital gains. We are of the view that income from relinquishing rights under an agreement should be assessed under the head income from capital gains. We hold accordingly. We however find that the AO/CIT(A) have not examined the claim of the Assessee under the head Capital Gain in accordance with the provisions of Sec.48 of the Act. We therefore remand the question of computation of Capital Gain to the AO after due opportunity of being heard afforded to the Assessee. The Appeal of the Assessee is accordingly treated as allowed for statistical purposes.

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• 2020 (1) TMI 251
  TP Adjustment - comparable selection - HELD THAT:- Assessee is engaged in providing rating support services and other support services to its AEs. It functions as a risk mitigated contract service provider. Ladderup Corporate Advisory Private Limited should be excluded from the list of comparables on account of different functionality - A perusal of Schedule 11 of the Profit Loss Account of Ladderup Corporate Advisory Private Limited shows that the main source of finance of the said comparable was by way of financial management and consultancy fees. We, therefore, find merit in the argument of the ld. Counsel for the assessee that the activities of this company was undoubtedly different from the activities of the assessee which was not into the business of financial and management consultancy fees Motilal Oswal Investment Advisors Private Limited - this company operates in four different business verticals. A perusal of the Director s Report shows that the company derives its business income from four different business verticals viz., equity capital markets, mergers and acquisitions, private equity syndication and structured debt. no segmental data is available in the annual report. A perusal of the segment reporting shows that the company is engaged in single segment and there are no reportable business segment as per AS-17. We find the assessee company is engaged in providing high end rating support and would require skilled personnel in the field of merchant banking, actuary, financial advisory, etc. The functions performed by Motilal Oswal Investment Advisors Private Limited which is into merchant banking activities, in our opinion, cannot be compared to the functions of the assessee whose functions are strictly limited to that of providing rating support services.

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• 2020 (1) TMI 250
  Taxation of retention money not accrued during the year - Accrual of income - as per AO addition has been rightly made during the course of assessment as well as in section 115JB MAT computation - HELD THAT:- It is not in dispute that the assessee had paid the impugned retention money as per the terms and conditions of the corresponding agreement with the other parties. Hon ble apex court s landmark decision in Chainrup Sampatram vs CIT [ 1953 (10) TMI 2 - SUPREME COURT] settled the law long back that although anticipated losses can be allowed to be deducted from commercial proceeds at the first sign of its reasonable probability, the converse is not true regarding anticipated profits to be treated as income unless the same are realized going by the principles of conservatism and commercial prudence. The Revenue fails to rebut the clinching fact that there is no surety about the impugned retention money to be finally refunded to the taxpayer. We therefore affirm the CIT(A) s above extracted detailed reasoning. Coming to MAT computation, this tribunal s coordinate bench s decision in DCIT vs. M/s. Mcnally Bharat Engineering Ltd. [ 2020 (1) TMI 203 - ITAT KOLKATA] has already decided the issue against the department that such an amount does not partake the character of taxable income till the time mutual obligations are not fully satisfied. This first substantive ground is rejected therefore. Capital gains addition - Gain accrued in assessee s heads on accrual of transfer of plant and machinery of product division - HELD THAT:- Assessee had received consideration by way of equity shares only. Hon ble Bombay high court s judgment in CIT vs. M/s. Bharat Bijlee Ltd. [ 2014 (5) TMI 512 - BOMBAY HIGH COURT] has relied upon in the CIT(A) s order, holds that capital gains as slump rate do not arise in such an instance. CIT(A) has rightly deleted the impugned capital gains addition made by the assessing authority by invoking section 50B of the Act. The Revenue fails in its second substantive grievance as well. Provision for leave encashment disallowance - AO invoked section 43B(f) of the Act that such a provision is allowable only in case of actual payment - HELD THAT:- CIT(A) holds that hon ble jurisdictional high court s decision in Exide Industries Ltd. vs. Union of India [ 2007 (6) TMI 175 - CALCUTTA HIGH COURT] quashed the statutory provision itself as ultra vires. Hon ble apex court has stayed operation thereof vide order dated 08.05.2009. He has therefore directed the Assessing Officer to follow their lordships final call on this issue. We notice in this backdrop of facts that there is no prejudice caused to the department in facts and circumstances of the case qua this last issue as well.

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• 2020 (1) TMI 249
  TDS u/s 194 - interest on deposit to Karnataka Building Other Construction Workers Welfare Board - assessee in default for not deducting tax at source - HELD THAT:- As brought to our notice by the ld. Counsel for the assessee that the organization to which the assessee paid interest viz., Karnataka Building Other Construction Workers Welfare Board was an entity falling within section 194A(3)(iii)(f) of the Act and therefore there was no obligation on the part of assessee to deduct tax at source on payment of interest to the aforesaid organization. Reliance was placed on the order of the Tribunal in the case of Canara Bank v. ITO [ 2015 (9) TMI 1674 - ITAT BANGALORE] wherein the issue was decided in favour of the assessee. Since this Tribunal has already taken a view that the person to whom interest was paid was falling within the ambit of section 194A(3)(f) of the Act, there cannot be any order treating the assessee as an assessee in default u/s. 201(1) and also levying interest u/s. 201(1A) of the Act. We accordingly cancel the orders passed u/s. 201(1) 201(1A) of the Act and allow the appeal of the assessee.

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• 2020 (1) TMI 248
  TP Adjustment - comparable selection - HELD THAT:- Assessee is engaged in providing technical, project management, marketing and sales support services thus companies functionary dissimilar with that of assessee or showing any unexceptional or extraordinary event need to be deselected from final list.

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• 2020 (1) TMI 247
  Reopening of assessment u/s 147 - assessment in a mechanical manner without due application of mind - HELD THAT:- In the present case the approving authority has given approval to the reopening of assessment in a mechanical manner without due application of mind by mentioning only that YES. I AM SATISFIED , in the Reasons for Initiating Proceedings u/s. 147 For obtaining the Approval of the Pr. CIT, Delhi- 23, New Delhi, and therefore, the legal issue no. 4 in dispute is squarely covered by the aforesaid finding of the Tribunal. In GOPAL CHAND MUNDHRA AND SONS, DAMYANTI MUNDHRA, RAMDEV MUNDHRA, SHRIYA DEVI MUNDHRA, GOPAL CHAND MUNDHRA VERSUS ITO, WARD-55 (5) , NEW DELHI. [ 2019 (8) TMI 1121 - ITAT DELHI] the reassessment is hereby quashed and accordingly the legal ground no. 4 is allowed.

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• 2020 (1) TMI 246
  Penalty u/s 271(1)(c) - income surrendered by the assessee during survey as well as addition made during the course of assessment framed u/s 143(3) - HELD THAT:- At the outset, it is to be noted that the Explanation 5A to the section 271(1)(c) is relevant only when there is a search and seizure action under section 132 of the Act carried out after 1st June, 2007 and consequently during the course of search and seizure action if assessee is found to be owner of money, bullion, jewellery and other valuables or any income based on the entries in the books of account etc. then notwithstanding that such income is declared by the assessee in the return of income furnished on or after the date of search for the purpose of section 271(1)(c), he shall be deemed to have concealed the particulars of income or furnished inaccurate particulars of income. Therefore, the applicability of Explanation 5A is exclusively in the case of search and seizure action under section 132 of the Act and the said deeming provision cannot be applied in the case of survey conducted under section 133A of the Act. Concealment of particulars of income or furnishing of inaccurate particulars of income by the assessee has to be in the income tax return filed by it. Even if some discrepancies were found during the survey resulting in surrender of income by the assessee, once the assessee has declared the said income in the return of income filed under section 139(1) of the Act, then the penalty cannot be levied on the surmises, conjectures and possibilities that the assessee would not have disclosed the income but for survey. Accordingly, following the earlier decision of this Tribunal as well as the decision of Hon ble Delhi High Court in case of CIT vs. SAS Pharmaceuticals [ 2011 (4) TMI 888 - DELHI HIGH COURT ] the penalty levied by the AO and confirmed by the ld. CIT (Appeals) in respect of the amount of Rs. 3 crore is not sustainable, the same is deleted.- Decided in favour of assessee.

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• 2020 (1) TMI 245
  Benefit of exemption u/s 54B - Whether the investment on agricultural land made in the name of spouse of the assessee is allowable as deduction u/s 54B ? - HELD THAT:- Section 54B of the Act requires the assessee to purchase any other land for being used for agricultural purposes within a period of two years from the date of the sale from transfer of the capital being land. In view of the clear provisions, investment made by any other person particularly the spouse of the assessee, cannot be entitled for deduction under section 54B of the Act. In our opinion, the learned CIT(A) has adjudicated the issue keeping in view the decision of the Jurisdictional High Court, which is binding on the authorities within the jurisdiction of the Hon ble High Court. The finding of the learned CIT(A) on the issue in dispute is well reasoned and we do not find any error in the same. The finding of the learned CIT(A) on the issue in dispute is accordingly upheld. The grounds of appeal raised by the assessee are dismissed.

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• 2020 (1) TMI 244
  Addition of undervaluation of closing stock - property as recorded in the stock - One of the core reasons of the AO was that the circle rate of the impugned property was higher - HELD THAT:- The circle rate of the proportionate land occupied for the rear portion will work out to Rs. 1,69,35,765/-. Further, circle rate of per sq. mtr for the construction would be Rs. 17,400 per sq. mtr which worked out to Rs. 36,37,122/- and accordingly, the actual circle rate as per the Government Notification as on 31.03.2013 would be at Rs. 2,05,72,887/- as compared to the book value of the impugned property which has been taken at a much higher figure, i.e., Rs. 3,37,63,104/-. Accordingly, it has been established by the assessee that market value of the revalued book value was more than its circle rate. Apart from that, one important fact is that in the subsequent year, the assessee had sold the property and has offered tax on the profit and if any such enhancement in the valuation of the closing stock is made then it will lead to double addition which will cause undue hardship to the assessee and that is the reason why the Ld. CIT (A) has directed the AO to give consequential relief in the subsequent year in which property was sold. Further, it was noticed that Assessing Officer while determining the circle rate has considered, the covered area of the impugned property wrongly at 827.8 sq. mtr and valued the cost of the property as per circle rate at Rs. 5,25,65,300/-, whereas the total covered area of the impugned property is 185.80 sq. mtr. which is evident from the purchase deed of the property placed at pages 55 to 77 of the paper book; and if the correct value is determined as per the rate used by the Assessing Officer, then it would be only Rs. 1,17,98,300/-. This also points out the flaw/error and the working given by the Assessing Officer. Thus, the reasoning given by the Assessing Officer to disturb the revaluation of the property is not based on correct premise. Moreover, if the assessee has demonstrated that the revaluation of the closing stock has been done as per cost or market rate whichever is lower, which is an acceptable method of accounting for the closing stock, then no interference is called for. Accordingly, the addition made by the Assessing Officer and sustained by the ld. CIT (A) is directed to be deleted. Addition on account of notional rent u/s. 23(1)(a) - AO noted that there were certain properties which were shown as part of closing stock and one property was taken from stock-in-trade to capital asset and was shown as part of fixed asset as on 31.03.2011 - AO held that provision of Section 23(1)(a) is clearly applicable and no notional rent has been offered to tax even for the flats held as stock-in-trade - HELD THAT:- First of all, in the case of property, W-54, 1st Floor, Greater Kailash, the same has been under consideration and was not ready for use and this is evident from the first electricity bill and the date of installment, which was installed in the month of December, 2014. Once the property itself was under construction stage with no electricity connection then there cannot be any deemed or notional rent which can be added u/s. 23(1)(a). Accordingly, the addition of Rs. 8.75 lac for the rear portion of the property and Rs. 4.81 lac for the front portion of the property is directed to be deleted. Regarding other property of B-100, Sarvodaya Enclave, First Floor, same was also not ready to use which has been proved by way of Mutation Certificate dated 19.07.2012 issued by MCD which shows that it was not ready to let out. Further, the said property has been used for the business purpose of the assessee when it was ready for use which was much later and had occupied by the Director of the company. Hence on this property also, there cannot be any addition on account of deemed rent. Lastly, with regard to the property at C-75, 1st and 2nd Floor, Shivalik, again it has been brought on record that the said property was completed after 01.04.2014 for which ld. counsel has filed copy of the assessment order passed by Deputy Assessor Collector of South Delhi Municipal Corporation. Once, this property was not ready for use, there is no question of any deemed rent. Accordingly, no addition on account of notional deemed rent u/s.23(1)(a) can be made, once the property itself was either in the stage of construction or was not ready for use. On the facts of the present case, as discussed above, the ratio of the principle of Hon ble Delhi High court in the case of CIT vs. Ansal Housing Financial and Leasing Co. Ltd. [ 2012 (11) TMI 323 - DELHI HIGH COURT] cannot be applied. - Decided in favour of assessee.

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• Customs

• 2020 (1) TMI 243
  Recall of the order dated 10.10.2019 - monetary amount involved in the appeal - this court had disposed of the appeal as not pressed in the light of the instruction dated 22 nd August, 2019 issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs - HELD THAT:- Having regard to the fact that the circular dated 22 nd August, 2019 on the basis of which the appeal had been disposed of is not applicable in the facts of the present case, the order dated 10.10.2019 is hereby recalled - the appeal is restored to file. Application disposed off.

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• 2020 (1) TMI 242
  Imposition of penalty on Director of the company - mis-declaration of goods - import of Molybdenum ore - appellants have claimed that the same is ore, claiming benefit of notification - case of Revenue is that trading of Molybdenum ore to prepare concentrate amounts to manufacture; therefore the benefit available for ores cannot be extended to the concentrates - Benefit of N/N. 4/2006 dated 1.3.2006 - HELD THAT:- Vide the statements dated 4.10.2011 and 5.11.2012 Shri Ramesh Shah has expressed his opinion that ores and concentrates fall under the same heading; further he had accepted that exemption from CVD was wrongly claimed on account of their not being aware of the amended notification No.4 of Chapter 28; we find that Shri Ramesh Shah was also giving evasive answers such as he was not aware as to how and why the CHA declared the goods to be ore. It is anybody s guess that the CHA will not be benefited in any manner by this mis-declaration. Shri Ramesh Shah being at the helm of the affairs of the Company has liaison with valid suppliers, CHA and the Customs Authorities - Shri Ramesh Shah cannot extricate himself from mis declaration made by M/s. Sakar Industries Pvt.Ltd. Appeal dismissed - decided against appellant.

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• Corporate Laws

• 2020 (1) TMI 241
  Striking of the name of the appellant company from Register of Companies - disqualification of directors - HELD THAT:- Undisputedly the appellants have not filed the annual returns since the financial year 2013-2014 onwards. The appellant company is regularly carrying on its business, in support filed the Auditor Reports and financial statement for the year ended 31st March, 2014 to 31st March, 2017. The order of striking of name of the company from the register of companies is certainly prejudicial to the shareholders of the company - The order is liable to be set aside and is hereby set aside.

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• Insolvency & Bankruptcy

• 2020 (1) TMI 239
  Maintainability of application - initiation of CIRP - time limitation - Appellant has declared that he has filed the said Appeal within the period of limitation specified under Section 61(2) of the I B Code - existence of dispute or not - HELD THAT:- It is a clear case of chasing of payments existence of disputes in terms of Insolvency and Bankruptcy Code, 2016. The Adjudicating Authority can admit the Application only if the conditions imposed are fulfilled as per Section 9(5) of the I B Code, 2016. The Appellant is no doubt chasing payment continuously from 2015. They have also involved NTPC to pressurize to the Corporate Debtor to release the said payment - The Operational Creditor has not completed the work within the stipulated contract schedule and failed to fulfill their contractual obligations leading to disputes between the parties - There is exchange of legal notice and its reply in the month of March, 2018 where the disputed issues are raised in respect of recovery of debts and claims. The debt in question is disputed and the dispute was raised prior to issuance of demand notice under Section 8 of the Code. Accordingly, the Adjudicating Authority has rightly rejected the Application - appeal dismissed.

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• 2020 (1) TMI 238
  Maintainability of application - initiation of CIRP - default of the operational debt - third party dispute - the disputes existing between the parties/companies or not - HELD THAT:- The Respondent after receipt of the Demand Notice has raised some dispute, but the dispute is not between the Appellant/Operational Creditor and Respondent/Corporate Debtor, the dispute is in regard to Third Party. The Third Party dispute cannot come within the meaning of Section 8 9 R/w Section 5(6) of Insolvency and Bankruptcy Code, 2016. In this case, the Demand Notice was issued on 31.01.2018 and it was replied on 12.02.2018, before that Respondent has raised a dispute which is evident from the correspondence by way of e-mails exchanged between the parties from 10.04.2015 to 04.01.2018 as observed in the impugned order. There is nothing on record to disprove this fact - there was a pre-existing dispute between the Operational Creditor and the Corporate Debtor. Appeal dismissed.

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• 2020 (1) TMI 237
  Maintainability of application - Corporate debtor failed to make repayment of debt - allottees/home buyers - financial creditors or not - HELD THAT:- Reliance can be placed in the case of judgement of Hon ble Supreme Court in the case of Pioneer Urban Land Infrastructure Ltd. v. Union of India [ 2019 (8) TMI 532 - SUPREME COURT ] where it was held that allottees/home buyers are to be regarded as financial creditors in terms of Section 5(8)(f) of the Code. Hon ble Supreme Court has further made it clear that the allottees/home buyers can avail the remedies available under the provisions of the Code. In the present case the petitioner had booked a flat on payment booking amount. The various dates of disbursement of the said disbursed amount including the details of flat have been furnished in the application. The Allotment Agreement dated 22.05.2016 executed with the petitioner has been placed on record. Petitioner has also placed on record copies of cheques and receipts given by the respondent; in support of the disbursement of the amount to the respondent corporate debtor - Since the amount has been raised from the petitioner/allottee under a real estate project, petitioner being allottee/home buyer is regarded as a financial creditor in terms of Section 5(8)(f) of the Code. Petitioner gave advance to the real estate developer and thereby financed the real estate project at hand. Money that is disbursed is no longer with the allottee, but is with the real estate developer who is legally obliged to give money s equivalent back to the allottee. Not only the debt has a commercial effect of borrowings and come within the scope of financial debt but also the petitioner clearly comes within the definition of financial creditor . It is reiterated that the Form-1 filed in the present case under Section 7 of the Code read with Rule 4 of the Rules, shows that the Form is complete in all respect and there is no infirmity in the same. It is further seen that no disciplinary proceeding is pending against the proposed IRP. Whether respondent corporate debtor has committed default in payment of the financial debt? - HELD THAT:- In the facts and as per available records, it appears that the respondent corporate debtor has committed default in repayment of the financial debt. The application under Section 7 is maintainable once the default is more than the threshold limit of one lakh. Once there is a debt and default and the application is complete the Adjudicating Authority is bound to admit the application preferred under Section 7 of the Code - the material on record reveals that there is no disciplinary proceeding pending against the proposed IRP. It is thus seen that all the requirements of Section 7(5)(a) of the Code stand fulfilled - in terms of Section 7(5)(a) of the Code, the present application is admitted. Application admitted - moratorium declared.

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• 2020 (1) TMI 236
  Liquidation process - Validity of second public action - reduction in reserve price - contention of the Appellant is that the Liquidator reduced the Reserve Price of this asset from 7.24 crore to 6.15 crore with sole objective to favour pre-decided buyer - HELD THAT:- In this case, the Liquidator reduced the Reserved Price only by 15%. The Liquidator can reduce the Reserve Price for the reason that the earlier auction for this asset has failed. Therefore, the said contention of the Appellant is without any basis. Wide publicity not given in the second e-auction held on 15.04.2019 - HELD THAT:- The Liquidator has publicly advertised the auction notice in the Business Standard circulated in Delhi and Jaipur duly disclosing the asset for auctioning and followed the procedure as laid down in the Regulations 12 of (Liquidation Process Regulation) - there are no merit in the allegation. Reduction in time period - HELD THAT:- The Liquidator followed the procedures as contemplated in clause 3 of Schedule I of the Regulations, which provides that the Liquidator shall prepare the terms and conditions of sale, Regulation 2 of Schedule I and the Liquidator shall prepare a marketing strategy with the help of marketing Professionals, if required for sale of the Asset. The strategy may include releasing advertisement, preparing of information sheets for the asset, preparing a notice of sale and liaising with Agents. Moreover, in the code and in the liquidation Regulations, no time limit was specified for the auction process, other than the mode of Sale as prescribed in Schedule I of Liquidation Process Regulations, 2016 - there are no merit in the allegation. The Appellant did not participate in the e-auction and now making vague allegations without any substantial grounds cannot be accepted. As per Regulation 44(1) of the Liquidation Process Regulations, 2016, the Liquidator shall liquidate the Corporate Debtor within a period of two years - there should not be any unnecessary delay and protract the liquidation process for undue advantage of some of individuals or group, which would adversely affect the liquidation process. There are no merit in the appeal - appeal dismissed.

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• 2020 (1) TMI 235
  Liquidation proceedings - Public auction of the assets of the Corporate Debtor - reduction in reserve price - HELD THAT:- The changes made by the Liquidator in the second auction in April are in consonance with the power conferred by the Code and the Liquidation Regulations. The Liquidator can reduce the reserve price if the previous auction at the original reserve price has failed. The Code and the Liquidation Regulations do not specify a timeline for the auction process and the same can be framed by the Liquidator in his discretion. It does not seem unreasonable that the timeline was shortened for the auction of one property as compared to the timeline set for the auction of four properties, especially when the information of public auction had been made public during the previous round of auction - The Liquidator has publicly advertised the auction by publishing the auction notice in the Business Standard circulated in Delhi and Jaipur. Further, the condition that the balance sale consideration has to be paid within 15 days is only a procedural provision in Schedule-I and if the Liquidator, for justified reasons deems it fit to increase the period of payment as it would help maximize participation and returns of the auction, then the Liquidator in his discretion can be allowed to do so, especially in light of the power given to the Liquidator to set the timeline of the rest of the process and the other terms and conditions of the sale. Application dismissed.

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• 2020 (1) TMI 226
  Directions to be issued against the five banks listed in the application - Learned counsel for the RP states that they have taken all steps with respect to the extension of the validity period of bank guarantees - HELD THAT:- In the facts all the aforesaid five banks are directed to not to encash the aforesaid bank guarantees till the next date of hearing. Notices be issued to the non-applicants-respondents by dasti process - List on 08.01.2020.

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• Central Excise

• 2020 (1) TMI 234
  Refund of excise duty - finalization of the provisional assessment - unjust enrichment - refund rejected on the ground that the appellant has not produced any evidence on record to show that such duty was also recovered from the ultimate buyer of the goods inasmuch as the goods were sold to the ultimate buyers - period April 2016 to December 2016 - HELD THAT:- On being questioned as to whether the attention of the Commissioner (Appeals) was drawn to the said earlier orders, Learned Advocate fairly agrees that there is nothing in the impugned order of the Commissioner (Appeals) which reflected upon the above fact. The matter remanded to the Commissioner (Appeals) for fresh decision after taking into consideration the earlier order of Commissioner (Appeals), as upheld by the Tribunal - appeal allowed by way of remand.

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• 2020 (1) TMI 233
  Clandestine removal - aluminium ingots - aluminium ingots arising out of aluminium scraps received when such scraps was sold on high sea sales basis - no corroborative evidences - HELD THAT:- No contrary evidences have been placed by the Revenue to rebut the findings of the learned Commissioner - In the circumstances, there are no reason to interfere with the findings of the learned Commissioner. Appeal dismissed - decided against Revenue.

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• 2020 (1) TMI 232
  Refund of accumulated CENVAT Credit - inputs used in manufacture of finished goods cleared by them to 100% EOU - Rule 5 of the CENVAT Credit Rules, 2004 - N/N. 42/2001-CE (NT) - HELD THAT:- It is quite well established that Central Excise Rules and Authorities themselves provide for clearance/ supply of goods without payment of duty for being used in the manufacture of goods to be finally exported, subject to the above stated restriction and procedure. Hence by referring to the definition of Export as incorporated in Customs Act, 1962 for restricting the scope of Rule 5 of CENVAT Credit Rules, 2004, to cases of the physical exports outside India will be contrary to the provisions of Central Excise Rules and Notifications issued under the said Rules. It is a settled principle of interpretation of statue that it should be interpreted strictly as per the expressed provisions/ language employed in the statue, without referring to any external aid. It is only in case of ambiguity that the reference could have been made to external aids or the definitions in the similar statue. From plain reading of Rule 5 of CENVAT Credit Rules, 2004 along with Rule 19 of Central Excise Rules, 2002 and Notification No 42/2001-CE (NT), it is concluded that the refund of accumulated CENVAT Credit in terms of Rule 5 is admissible in the case of goods supplied for manufacture of goods exported. In the present case the claim of refund has been made in respect of goods which have been cleared by the appellants to 100 % EOU, without payment of duty by following the procedure as prescribed. It is not the case of the revenue that the goods were exempted goods, and for that reason cleared without payment of duty. If the goods were exempted goods, then the issue would not have been for refund of accumulated credit but for denial of the credit itself. There is no provision in the Central Excise Act or Rules other than Rule 19, which permits clearance of dutiable goods without payment of duty. There is no dispute in respect of this in the present case. Contrary decision of Tribunal in case of Tiger Steel Engineering Pvt Ltd [2010 (7) TMI 324 - CESTAT, MUMBAI] has been stayed by the Hon ble Bombay High Court in TIGER STEEL ENGG. (I) PVT. LTD. VERSUS COMMISSIONER [ 2010 (12) TMI 1156 - BOMBAY HIGH COURT] - Since we have held that the benefit of rule 5, is admissible in respect of clearances made without payment of duty in terms of Rule 19 of Central Excise Rules, 2002, we find that the decision of Madras High Court in case of BAPL INDUSTRIES LTD. VERSUS UNION OF INDIA [ 2006 (11) TMI 68 - HIGH COURT, MADRAS] is distinguishable. Appeal allowed - decided in favor of appellant.

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• CST, VAT & Sales Tax

• 2020 (1) TMI 231
  Condonation of delay of 239 days in filing SLP - delay not satisfactorily explained - HELD THAT:- Delay cannot be condoned as satisfactory reason not provided - SLP dismissed only on this ground.

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• 2020 (1) TMI 230
  Imposition of penalty - discrepancy in Form 38, E-Sugam form - Section 54(1) (14) of the U.P. Value Added Tax Act, 2008 - HELD THAT:- In the present case, the Truck was accompanied by Form 38 and all other documents were being carried along with other documents and only due to human error column would remain unfilled. It was the duty of the Officer managing the Check Post who after discovering column 8 of Form 38 found remain unfilled should have filled the said column himself in light of the notification dated 03.02.2009 and allowed the vehicle to proceed alongwith the goods. There are no merit in the finding recorded by the Commercial Tax Tribunal that revisionist has not produced any affidavit or any other evidence to canvas his claim regarding the fact there was no intention to evade tax. It is observed that it has been recorded by the authorities below that the vehicle carried the goods was accompanied by builty and other documents from which the goods could be verified and it is not the case of the Revenue that the vehicle was carrying either different goods or different quantity of goods, the details of which are mentioned in Form 38 and other documents which were carried by the truck driver. The judgment passed by this Court in the case of I.C.I. India Limited Vs. Commissioner of Sales Tax [2003 (3) TMI 695 - ALLAHABAD HIGH COURT] has clearly speltout the law in this regard and a notification issued by the Revenue clearly indicates that the Officer managing the Check Post after verifying the goods should have filled up the Column 8 of Form 38 in accordance with the documents and there was no occasion for imposing a penalty as has been done by the Assessing Officer and upheld by the Commercial Tax Tribunal. Revision allowed.

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• Indian Laws

• 2020 (1) TMI 240
  Auction - payments towards deferred spectrum instalment charges - allegation that these deferred instalment charges could not be made within the time granted - HELD THAT:- The respondent-licencees faced financial constraints; apparently telecom service providers as a class also faced some financial stress, which triggered the Union to revisit its policy and ultimately modify the terms of payment of deferred payment charges and consequently, the letter of 19.03.2018. Despite these, the respondent licensees could not fulfil the conditions of the licenses held by them (i.e. NIA 2013 and NIA 2015) vis- -vis payment of deferred spectrum charges; they approached the TDSAT, but without success. Their appeals to this court fared better; the time for making payment was extended somewhat. Upon default (in payment of the charges), the Union invoked guarantees under the sets of licenses. This court is of the opinion that the order of the TDSAT does not call for any interference. The Union nowhere disputes that the respondent licensees liability toward payment of deferred spectrum charges, in May, 2018, was to the tune of Rs. 774.25 crores - there is no rationale for the Union to resist the demand for refund of excess amounts. The TDSAT, in the opinion of this court, exercised its discretion, with respect, circumspectly, because the entire amount of Rs. 134.66 crores claimed in the application was not allowed; rather the direction issued was in respect of Rs. 104.34 crores. There is no merit in the present appeal - appeal dismissed.

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• 2020 (1) TMI 229
  Rejection of plaint - Cancellation of agreement - outstanding loan amount - Order 7 Rule 11 CPC - HELD THAT:- It has been pointed out in the application that there is a statutory bar under Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act) and that the plaintiffs have a statutory remedy under Section 17 of the SARFAESI Act to approach the Debt Recovery Tribunal (DRT). It is further stated that the plaintiffs have already availed of the remedy by filing a petition under Section 17 (1) of the SARFAESI Act before the DRT, New Delhi before filing of the present suit. Hence, it is pleaded that the suit is liable to be rejected on account of the bar contained in the SARFAESI Act. The essential dispute centres around as to whether the plaintiff executed the communication dated 22.6.2016 whereby they have allegedly agreed to disbursal of the loan in favour of defendant No.6. The plaintiff denies execution of any such document or any other document whereby defendant No.1 could disburse the loan to defendant No.5 and 6. In my opinion, the plaint essentially pleads seriously disputed questions of fact. It is quite clear that such disputed question of fact would not mean that a civil court could assume jurisdiction over such suits. This court would not have jurisdiction to entertain the present suit in view of section 34 of the SARFAESI Act. Suit dismissed.

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• 2020 (1) TMI 228
  Dishonor of Cheque - sole ground for dismissal of the complaints is that the disputed cheques were dishonoured by the bank on the ground that Signature do not match specimen - section 138 of NI Act - whether in case of dishonour of cheque on the ground that signature does match with specimen signature incomplete signature differ etc., complaint under Section 138 NI Act, 1881 is maintainable? HELD THAT:- It is clear that if a cheque is dishonoured by the reason of alteration in drawer s signature , signature does not match specimen or signature incomplete etc. the Court has to presume, by virtue of Section 139 of the Act, 1881 that the cheque is received by the holder for the discharge, in whole or in part, of any debt or liability. Though it is a rebuttable presumption, but burden of proving so would be on the accused. The Court cannot quash the complaint on this ground. Both the petitions are hereby allowed.

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• 2020 (1) TMI 227
  Permission for withdrawal of petition - Public Interest Litigation - HELD THAT:- It is found that this Writ Petition has been drafted in the shape of a Public Interest Litigation. Petition is allowed to be withdrawn, without prejudice to the rights of any person aggrieved or otherwise entitled to file such a petition relating to the vires of the proviso, which has been questioned herein. The Writ Petition is consigned to records with such liberty.

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