In absence of any appeal filed by revenue against order of High Court in Indsur Global Ltd case, ratio of same holds field - No error in order of Tribunal relying on Indsur Global - Revenue appeal has no merit: High Court
AHMEDABAD : THIS is an appeal by revenue against the order dated 08.01.2015 passed by the Ahmedabad Bench of the Tribunal 2015-TIOL-1755- CESTAT-AHM. Vide the impugned order, following the ratio of the Ahmedabad High Court order in case of. Indsur Global Ltd Vs Union of India & 2 - 2014-TIOL-2115- HC-AHM-CX, the appeal filed by revenue was dismissed by the Tribunal.
It is the contention of the Revenue that the High Court in the order itself had stayed the order till 15th January 2015 and the Tribunal on 08.01.2015 should not have followed the ratio of Indsur Global due to stay operating against the same.
However, the High Court found no merit in the appeal by revenue and held:
There is no force in the argument on behalf of the revenue. It is apposite to note that the judgement of the Division Bench of this Court in case of Indsur is decided on 26-27/11/2014 i.e. almost around nine months ago. So far the department has not preferred any appeal to challenge the said decision of this Court in the Apex Court, hence in our opinion, the ratio expounded by this Court in the Indsur still holds the field.
Since the judgement of this Court is so far not challenged before the Apex Court and therefore, it holds the field, we are of the opinion that the CESTAT (West Zonal) Bench, Ahmedabad has not committed any error or irregularities in rejecting the appeal of the Revenue by the impugned order dated 8/1/2015. In our opinion, no substantial questions are involved in this appeal. Hence, dismissed.
(See 2015-TIOL-1900- HC-AHM-CX)
AHMEDABAD : THIS is an appeal by revenue against the order dated 08.01.2015 passed by the Ahmedabad Bench of the Tribunal 2015-TIOL-1755- CESTAT-AHM. Vide the impugned order, following the ratio of the Ahmedabad High Court order in case of. Indsur Global Ltd Vs Union of India & 2 - 2014-TIOL-2115- HC-AHM-CX, the appeal filed by revenue was dismissed by the Tribunal.
It is the contention of the Revenue that the High Court in the order itself had stayed the order till 15th January 2015 and the Tribunal on 08.01.2015 should not have followed the ratio of Indsur Global due to stay operating against the same.
However, the High Court found no merit in the appeal by revenue and held:
There is no force in the argument on behalf of the revenue. It is apposite to note that the judgement of the Division Bench of this Court in case of Indsur is decided on 26-27/11/2014 i.e. almost around nine months ago. So far the department has not preferred any appeal to challenge the said decision of this Court in the Apex Court, hence in our opinion, the ratio expounded by this Court in the Indsur still holds the field.
Since the judgement of this Court is so far not challenged before the Apex Court and therefore, it holds the field, we are of the opinion that the CESTAT (West Zonal) Bench, Ahmedabad has not committed any error or irregularities in rejecting the appeal of the Revenue by the impugned order dated 8/1/2015. In our opinion, no substantial questions are involved in this appeal. Hence, dismissed.
(See 2015-TIOL-1900- HC-AHM-CX)
SARFAESI : Where DRT rejected securitisation application for stay after extensive hearing, there was no breach of principles of natural justice to enable High Court to exercise its extraordinary jurisdiction when efficacious remedy of appeal was available
[2015] 60 taxmann.com 157 (Gujarat)
HIGH COURT OF GUJARAT
Kanco Enterprises Ltd.
v.
Authorised Officer of State Bank of India
[2015] 60 taxmann.com 157 (Gujarat)
HIGH COURT OF GUJARAT
Kanco Enterprises Ltd.
v.
Authorised Officer of State Bank of India
IT: Where assessee-company received loan of certain sum from its holding company, 'F' and claimed interest on said loan, since 'F' was a debtor of assessee-company of more than double amount of loan, allowance of deduction was amount to diversion of income of assessee-company; interest paid was to be disallowed
IT : Where assessee hired a premises from its group company on rent and claimed deduction, since documents submitted by assessee required proper examination, matter was to be readjudicated
IT : Where assessee incurred expenditure on professional services and services were availed for smooth running of business, as expenditure was wholly and exclusively for business purposes same would be allowed under section 37(1)
[2015] 60 taxmann.com 66 (Delhi - Trib.)
IN THE ITAT DELHI BENCH 'B'
Dilli Karigari Ltd.
v.
Deputy Commissioner of Income-tax
IT : Where assessee hired a premises from its group company on rent and claimed deduction, since documents submitted by assessee required proper examination, matter was to be readjudicated
IT : Where assessee incurred expenditure on professional services and services were availed for smooth running of business, as expenditure was wholly and exclusively for business purposes same would be allowed under section 37(1)
[2015] 60 taxmann.com 66 (Delhi - Trib.)
IN THE ITAT DELHI BENCH 'B'
Dilli Karigari Ltd.
v.
Deputy Commissioner of Income-tax
DEPUTY COMMISSIONER OF INCOME TAX vs.ASHOK SHETTY
BANGALORE TRIBUNAL Exemptions—Newly established hundred per cent export oriented undertakings—Assessee individual was in the business of extracting granite blocks from the quarries and exporting the same to prospective buyers—Assessee furnished his returns of income for both A/Ys under appeal, initially claiming reduction u/s 10A(5) and subsequently claiming deduction for the identical sums u/s 10B— Pursuant to survey and at the time of the assessment proceedings, the AO held that the assessee was not engaged in the activities of manufacture or production of an article or thing as envisaged either u/s 10A or 10B—AO disallowed assessee's claim of deduction u/s 10B—CIT(A) allowed assessee's appeals on the issue for both the A/Ys—Held,Supreme court in case of Sesa Goa had held that extraction and processing of iron ore amounts to 'production' within the meaning of the word in s 32A(2)(b)(iii)—Ratio of the Supreme Court's ruling in the case of Sesa Goa was directly applicable to the facts of the assessee's case—Provisions of s 2(29BA)(a), the ruling of the jurisdictional High court in the case of Puttur Petro Products P Ltd and also the Board's circular No.729 dated 1.11.1995 clearly show that the process involved in the case of the assessee was 'manufacture' as defined u/s 2 (29BA)—Therefore, the assessee was entitled for deduction u/s 10B as the assessee's business activity amounted to manufacture or production of an article or thing as envisaged in s. 10B for both the AYs under consideration—No infirmity was found in the findings of the CIT(A)— Revenue's appeal dismissed
SRI BALAJI EDUCATIONAL & CHARITABLE PUBLIC TRUST vs.ASSISTANT COMMISSIONER OF INCOME TAX
CHENNAI TRIBUNAL
Penalty u/s 271(1)(c)—Concealment of income—Assessee was registered trust mainly engaged in running educational institutions for conducting various professional courses—Assessee filed its return of income admitting total income of Rs. NIL—Case of Assessee was selected for scrutiny and notice was issued and detailed questionnaire was also issued to Assessee—Subsequently, survey u/s 133A was conducted—AO found that assessee received voluntary donations by way of cash, however, assessee admitted cash donations by way of cash only at Rs.4,73,20,000/ - in return of income leaving balance of Rs.8,21,54,800/ - that was not recorded in their regular books of accounts maintained—Assessment was completed by AO after treating disputed amount as anonymous donation disclosed by assessee u/s 115BBC(3)—AO held that assessee wilfully failed to discharge its duty to disclose all its income in return originally filed and held that it was clear case of concealment of income that attracted penalty u/s 271 (1)(c)—CIT(A) confirmed penalty order passed by AO u/s 271(1)(c)—Held, assessee, by explaining all facts, submitted detailed explanation before AO and it was duty of AO to establish that Assessee either concealed income or filed inaccurate particulars—Assessee failed to handle donations received by them in appropriate manner and therefore, assessee offered very same amount for taxation—Thus, assessee neither concealed income nor furnished inaccurate particulars—Assessee explained before AO that amounts received by it were voluntary donation and certain details were not available—Extent of details not available were worked out by Assessee and offered for taxation—Assessee discharged burden cast upon it—It was duty of AO to disprove that explanation given by assessee was neither correct nor bonafide—Therefore, CIT(A) was not correct in upholding penalty order passed by AO without considering explanation given by Assessee—High Court in case of National Textiles v. CIT 249 ITR 125 held that in order to justify levy of penalty for addition of cash credits, there must be some material or circumstances leading to reasonable conclusion that amount did represent Assessee's income and circumstances must show that there was conscious concealment or act or furnishing of inaccurate particulars; Explanation 1 did not make assessment order conclusive evidence that amount assessed was in fact income of Assessee—Assessee neither concealed income nor filed inaccurate particulars—CIT(A) was not justified in confirming penalty order passed by AO—Penalty levied by AO u/s 271(1)(c) was deleted—Assessee's Appeal allowed
CHENNAI TRIBUNAL
Penalty u/s 271(1)(c)—Concealment of income—Assessee was registered trust mainly engaged in running educational institutions for conducting various professional courses—Assessee filed its return of income admitting total income of Rs. NIL—Case of Assessee was selected for scrutiny and notice was issued and detailed questionnaire was also issued to Assessee—Subsequently, survey u/s 133A was conducted—AO found that assessee received voluntary donations by way of cash, however, assessee admitted cash donations by way of cash only at Rs.4,73,20,000/ - in return of income leaving balance of Rs.8,21,54,800/ - that was not recorded in their regular books of accounts maintained—Assessment was completed by AO after treating disputed amount as anonymous donation disclosed by assessee u/s 115BBC(3)—AO held that assessee wilfully failed to discharge its duty to disclose all its income in return originally filed and held that it was clear case of concealment of income that attracted penalty u/s 271 (1)(c)—CIT(A) confirmed penalty order passed by AO u/s 271(1)(c)—Held, assessee, by explaining all facts, submitted detailed explanation before AO and it was duty of AO to establish that Assessee either concealed income or filed inaccurate particulars—Assessee failed to handle donations received by them in appropriate manner and therefore, assessee offered very same amount for taxation—Thus, assessee neither concealed income nor furnished inaccurate particulars—Assessee explained before AO that amounts received by it were voluntary donation and certain details were not available—Extent of details not available were worked out by Assessee and offered for taxation—Assessee discharged burden cast upon it—It was duty of AO to disprove that explanation given by assessee was neither correct nor bonafide—Therefore, CIT(A) was not correct in upholding penalty order passed by AO without considering explanation given by Assessee—High Court in case of National Textiles v. CIT 249 ITR 125 held that in order to justify levy of penalty for addition of cash credits, there must be some material or circumstances leading to reasonable conclusion that amount did represent Assessee's income and circumstances must show that there was conscious concealment or act or furnishing of inaccurate particulars; Explanation 1 did not make assessment order conclusive evidence that amount assessed was in fact income of Assessee—Assessee neither concealed income nor filed inaccurate particulars—CIT(A) was not justified in confirming penalty order passed by AO—Penalty levied by AO u/s 271(1)(c) was deleted—Assessee's Appeal allowed
Inability to pay debt a rebuttable presumption; Refuses to order guarantor's winding-up
HC dismisses winding-up petition against education providing co. ('respondent co.'), filed on the ground of its inability to pay debt u/s 434; Holds that, "Inability is the non-payment of the debt within the statutory period. However, such inability has to be determined from the facts of each case"; Notes that respondent co. had given guarantee for its promoter-director who took loan from petitioner & petitioner had served respondent co. with statutory notice and asked to pay debt, holds that, "Though the statutory notice raised the presumption as to the inability to pay its debts, it is rebuttable... in this case, the company is only a guarantor for the loan borrowed by the Director without any resolution of the Board"; Notes respondent co.'s contention that sale of its pledged shares by petitioner towards repayment of loan was a sham transaction as there were no valid transfer of shares by deeds, holds that, "in the absence of resolution to sell the shares of the company or even act as a guarantor without a resolution, the alleged transactions by the Petitioning-Company are subject matter of proof and evidence"; Further with regard to solvency of respondent co., notes that it was not defunct & provided educational services employing more than 60 employees, states that ordering winding-up would hamper career of its students, cause hardship to its 60 employees; Also states that, "Even presuming that there is a dispute with the respective debt payable, in the given circumstances, the dispute can be resolved only before the Civil Court and not through the company Court" :Madras HC
The ruling was delivered by Justice Pushpa Sathyanarayana.
Advocates P. Giridharan argued on behalf of petitioner while Advocates H. Karthik Seshadri and N.P. Vijay Kumar represented the respondents.
Lambasts CLB for perverse, callous order directing share buyout of wind-energy giant
HC quashes CLB order u/s 397/398 of Cos Act 1956, whereby Enercon GmbH's ('EG', one of the largest wind turbine manufacturers in the world) was directed to exit from Enercon (India) Limited ('EIL') and surrender its 56% shareholding in EIL, observes no application of mind in delivering order; Going through provisions relating to oppression & mismanagement, observes that the Act confers substantial powers on CLB to end disputes and to arrive at amicable settlements, thus, it must act in fair, transparent & judicious manner, states "Directing a buyout of a group of shareholders and ordering their exit from the Companies is serious for such members. For them it is end of their association with the company"; Notes that while rejecting EG's petition, CLB used terms like 'not maintainable' and 'deserved to be thrown out at the threshold', states that there is a specific meaning to such phrases, and CLB is not expected to use such important phrases casually; Observes that EG being 56% shareholder of EIL, fulfilled the statutory condition to file such petition, holds that the petition was thus maintainable & also observes that though CLB order directed petition to be thrown out at threshold, it went into merits of the case, terms CLB order as "completely perverse" & CLB member's conduct as "utter casualness"; Observes that EG's major contentions were not considered, charge regarding fabrication of resolution was rejected in one line, holds that, "Drawing conclusions in favour of one party without discussion is not decision making"; Notes that CLB Member had merely copied the submissions, drawn direct conclusions, written a 130 pages judgment in 3 days with total non-application of mind to vital issues, such conduct cannot be simply ignored.. "Tolerance of such decision making will send a wrong signal"; Further noting that CLB member refused EG's reliance on various case laws of superior authorities, holds that "This is most perfunctory. No tribunal can simply disregard the decisions of the superior courts having direct bearing on the case without even attempting to distinguish or to comment upon the same. If a shareholder is directed to exit from a company, which is a serious consequence, this is not the way that the board should treat him"; Remarks that a reasoned order retains the faith of litigating public in judicial and quasi-judicial proceedings, "There is no reason why the Board is not required to scrupulously adhere to principles of fairness especially considering the wide powers", and remands matter back : Bombay HC:Bombay HC
The ruling was delivered by Justice N. M. Jamdar.
Senior Advocate S. U. Kamdar, Sudipto Sarkar, Navroz. H. Seervai along with Advocates Zubin Behramkamdin, Jehangir Jejeebhoy Vivek Vashi, Kanika Sharma, Hrushi Narvekar, Krishnendu Sayta, Shaheda Madraswala argued on behalf of the appellants. Senior Advocate Fredun DeVitre along with Advocates Nikhil Sakhardande, Swagata Naik, Sonali Mathur, Priyanka A. Shetty argued on behalf of the respondents.
__._,_.___
No comments:
Post a Comment