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TMI Blog2024 (3) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... ke the blame for the misdeeds of the directors; Additionally, the shareholders were fully aware of the fact that the application for approval dated 02.02.2006 to the FIPB was for ISP services. But they entered into a Share Subscription Agreement on 06.03.2006 for Devas services. The Share Subscription Agreement discloses that they were aware of the false statements contained in the Agreement dated 28.01.2005. Therefore, the shareholders, who now want to reap the fruits of a tree, fraudulently planted and unlawfully nurtured, cannot feign ignorance and escape the allegations of fraud. As above findings of Hon ble Supreme Court is having great bearing on the decision of lower authorities in these assessment years since the said judgement of Hon ble Supreme Court was delivered subsequent to the decision of the lower authorities and as such, it is appropriate to remit the entire issue to the file of ld. AO for de-novo consideration. - Shri George George K., Vice President And Shri Chandra Poojari, Accountant Member For the Assessee : Shri R.V. Gowtham And Shri Parash Biswal, A.Rs For the Revenue : Shri D.K. Mishra, D.R. ORDER PER BENCH: These appeals by assessee are filed against fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enior Counsel for the Appellant sought to project the case as one of perversity of findings. But we do not find any perversity in the findings recorded by both the Tribunals. These findings are actually borne out by documents, none of which is challenged as fabricated or inadmissible. Though it is sufficient for us to stop at this, let us go a little deeper to find out whether there was any perversity in the findings recorded by the Tribunals and whether such findings could not have been reached by any reasonable standards. 12.8 The following undisputed facts emerge from the documents placed before the Tribunal. The authenticity of these documents were never in question or denied: i. An agreement of a huge magnitude, for leasing out five numbers of C X S transponders each of 8.1 MHz capacity and five numbers of S X C transponders each of 2.7 MHz ^ capacity on the Primary Satellite-I (PS- I), was surprisingly and shockingly entered into by Antrix with Devas, without same being preceded by any auction/tender process. It appears from the letter dated 27.09.2004 sent by DEVAS LLC, USA to Shri K.R. Sridhara Murty, Executive Director of Antrix with copies to Dr. G. Madhavan Nair, Chairma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to see, (a) if the technology existed; and (b) if the proposal was commercially viable. But it was not done; iv. On 14.05.2004, a Committee headed by one Dr. K.N. Shankara, Director, Space Applications Centre was constituted purportedly to examine the technical feasibility, risk management including possibilities of alternate uses of space segment, financial and market aspects and time schedule. According to the Report submitted by this Committee, DEVAS was conceived as a new national service expected to be launched by the end of 2006 that would deliver video, multimedia and information services via high powered satellite to mobile receivers in vehicles and mobile phones across India. The catch here lies in the fact that while it was possible to deliver some of these services via terrestrial-mode, it was not possible at that point of time to provide this bouquet of services via satellite. Even today satellite phones are beyond the reach of a common man. Mobile receivers or devices which can simply receive audio and video content are different from mobile phones, which are capable of providing a two way communication. The technology for providing the services through mobile phones ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after incorporation, the Agreement dated 28.01.2005 was signed. Therefore, the first ingredient of Section 271(c) of the Companies Act, 2013, namely, the formation of the company for a fraudulent and unlawful purpose was clearly made out; x. The kind of licenses obtained such as ISP and IPTV licenses and the object for which FIPB approvals were taken but showcased as those sufficient for fulfilling the obligations under the Agreement dated 28.01.2005 demonstrated that the affairs of the company were conducted in a fraudulent manner. This is fortified by the fact that a total amount of Rs. 579 crores was brought in, but almost 85% of the said amount was siphoned out of India, partly towards establishment of a subsidiary in the US, partly towards business support services and partly towards litigation expenses. We do not know if the amount of Rs. 233 crores taken out of India towards litigation services, also became a part of the investment in a more productive venture, namely, arbitration. The manner in which a misleading note was put to the cabinet and the manner in which the minutes of the meeting of TAG sub-committee were manipulated, highlighted by the ^ v Tribunal, also shows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho now want to reap the fruits of a tree, fraudulently planted and unlawfully nurtured, cannot feign ignorance and escape the allegations of fraud. 4.1 Above findings of Hon ble Supreme Court is having great bearing on the decision of lower authorities in these assessment years since the said judgement of Hon ble Supreme Court was delivered subsequent to the decision of the lower authorities and as such, it is appropriate to remit the entire issue in all these appeals except IT(TP)A No.158/Bang/2020 to the file of ld. AO for de-novo consideration to consider the said judgement while passing consequential orders by ld. AO. Hence, all these appeals except IT(TP)A No.158/Bang/2020 are remitted back to the file of ld. AO for de-novo consideration. 5. In the result, IT(TP)A No.486/Bang/2015, IT(TP)A Nos.301 to 303/Bang/20167, IT(TP)A No.742/Bang/2017, IT(TP)A No.341 3127/Bang/2018 are partly allowed for statistical purposes. IT(TP)A No.158/Bang/2020 (AY 2009-10): 6. This appeal is emanated from the order passed u/s 263 of the Act by PCIT dated 6.12.2019, wherein the ld. PCIT has remitted the issue to the ld. AO relating to receipt of share premium u/s 68 of the Act so as to verify the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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