Judgments
High Court of Delhi
IREO Private Limited Ors vs. Vibhor Home Developers Pvt. Ltd. Ors
MANU/DE/2686/2022
29.07.2022
Civil
Court has jurisdiction to extend the time that was initially fixed by it for doing an act
Present application moved on behalf of the Petitioners under Section 151 of Code of Civil Procedure, 1908 (CPC) seeking prayer for enlarging time for deposit of amount of Rs.43.50 crores as directed by this Court vide order.
By way of the present application, the Petitioners have submitted that they require some time to arrange the liquidated funds. It is the case of the Petitioners that, Petitioners are real estate companies enjoying impeccable reputation in the real estate market since 2004 and they have sound financial condition. However, on account of unforeseen situations, viz. COVID - 19 pandemic and other related factors, which have been beyond the control of the Petitioners, an immediate amount of sum of Rs.43.50 crores in liquidated form is not readily available. Thus, it is submitted before this Court that, the Petitioners need some time to arrange the liquidated amount.
Present Court has the authority to extend time for an act for which certain time period had been granted. The court in exercise of its jurisdiction can grant time to do a thing. However, the court has an inherent power within its ambit and jurisdiction to extend the time that was initially fixed by it for doing an act.
In view of the facts and circumstances of the present case and the fact that the order has been passed as an interim measure pending the arbitration proceedings for preservation of the property in question, it is considered appropriate by this Court to extend the time period for grant of deposit of amounts as directed by this Court. While coming to such conclusion, this Court is also guided by the fact that, the Petitioners have shown their genuineness and willingness to comply with the directions passed by this Court for depositing the amount of Rs.43.50 crores, by seeking permission to deposit by way of security, original title deeds of immovable property belonging to one of their companies, having value of more than Rs.50 crores.
Present Court extends the time period earlier granted to the Petitioners and hereby grants a further period of 45 days to the petitioners to deposit the amount of Rs.43,50 crores. Application disposed off.
Tags : Deposit Time Extension
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Supreme Court
R.D. Jain and Co. Vs. Capital First Ltd. and Ors.
MANU/SC/0926/2022
27.07.2022
Commercial
Expression "District Magistrate" and the "Chief Metropolitan Magistrate" under Section 14 of the SARFAESI Act includes Additional District Magistrate and Additional Chief Metropolitan Magistrate
The borrower has preferred the present appeal against impugned judgment and order passed by the High Court, by which, the Division Bench of the High Court while interpreting Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement Security Interest Act, 2002 ("SARFAESI Act") has held that (i) the District Magistrate, Chief Metropolitan Magistrate is not a persona designata for the purposes of Section 14 of the SARFAESI Act; (ii) the expression "District Magistrate" and the "Chief Metropolitan Magistrate" as appearing in Section 14 of the SARFAESI Act shall deem to mean and include Additional District Magistrate and Additional Chief Metropolitan Magistrate for the purposes of Section 14 of the SARFAESI Act.
In view of the scheme of the SARFAESI Act, more particularly, Section 14 of the SARFAESI Act and the nature of the powers to be exercised by learned Chief Metropolitan Magistrate/learned District Magistrate, the High Court in the impugned judgment and order has rightly observed and held that, the power vested in the learned Chief Metropolitan Magistrate/learned District Magistrate is not by way of persona designata.
The expression "Chief Metropolitan Magistrate" as appearing in Section 14 of the SARFAESI Act shall deem to mean and include Additional Chief Metropolitan Magistrate for the purposes of Section 14 of the SARFAESI Act. When the Additional District Magistrates are conferred with the powers to be exercised by the District Magistrates either by delegation and/or by special orders and the Additional District Magistrates are exercising the same powers which are being exercised by the District Magistrates, the same analogy can be applied, more particularly, when the powers exercisable under Section 14 of the SARFAESI Act, are ministerial steps.
The District Magistrate, Chief Metropolitan Magistrate is not a persona designata for the purposes of Section 14 of the SARFAESI Act. The powers under Section 14 of the SARFAESI Act can be exercised by the concerned Additional Chief Metropolitan Magistrates of the area having jurisdiction and also by the Additional District Magistrates, who otherwise are exercising the powers at par with the concerned District Magistrates either by delegation and/or special order. Appeal dismissed.
Tags : Powers Inclusion Jurisdiction
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Income Tax Appellate Tribunal
Bharatkumar J. Patel (Prop. of Gurumangalam International) vs. Wealth Tax Officer, Ahmedabad
MANU/IB/0490/2022
27.07.2022
Direct Taxation
Certificate from Collector has to be placed by the assessee to determine that particular land comes under the urban land or agricultural land
The assessee is an individual derives income by way of rent, interest and agriculture etc. The assessee filed return of net wealth for A.Y. 2010-11 declaring net wealth of Rs.1,39,11,000. The Assessing Officer observed that, the assessee had not included the urban land cost of Rs.2,12,98,200 and cash in hand of Rs.1,25,400 after exemption of Rs.50,000 for wealth chargeable to Wealth Tax.
The Assessing Officer observed that, the assessee had understated the wealth by treating the land at Vastrapur and Rancharda as non-urban land. The notice under Section 17 of the Wealth Tax Act, 1957 was issued. The assessment was reopened after recording reasons as per the observations of the Assessing Officer. The assessee could not submit his objection to the validity of reopening as reasons recorded for reopening were not furnished to the assessee as per the contentions of the assessee. During the course of assessment proceedings, the assessee submitted that both the said lands were non-urban land and exempt under Section 2(ea)(v) of Wealth Tax Act. The Assessing Officer concluded that the said lands were urban land and as such its value aggregating to Rs.2,12,98,200 was brought to tax. Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A )dismissed the appeal of the assessee.
It is pertinent to note that, the said land and the details given by the assessee were only related to Talati Certificate which is undated. The other documents are not showing that the said land were not coming under the urban land definition. The reopening is valid which is also reiterated by the CIT(A).
The lands at Vastrapur and Rancharda were coming under the definition of urban land under Section 2(ea)(v) of the Wealth Tax Act as the documents which were produced before the Revenue Authorities and before present Tribunal clearly does not state that, these are agricultural land. The assessee contended that these are agricultural land as per the records of the Government but only document which was on record is related to Talati Certificate which is undated and is not specifying the period of agricultural activity or not specifying the agricultural produce on the said land. Whether any land comes under the urban land or agricultural land, the certificate from Collector should have been placed by the assessee but since the assessee failed to do so, it is clear that the said land is urban land and, therefore, the Assessing Officer rightly made wealth tax addition towards both of these lands. Appeal of the assessee is dismissed.
Tags : Wealth tax Addition Legality
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Income Tax Appellate Tribunal
Mokshstar International vs The Additional Commissioner of Income Tax
MANU/IR/0098/2022
27.07.2022
Direct Taxation
Assessing Officer is not empowered to make disallowance on ad-hoc basis without assigning any reason
The assessee is a firm engaged in the business of import of plastic scrap from European countries, USA and countries situated in UAE. The AO noticed that, the assessee has not maintained log-book or any other document to separate business and non-business expenses. Therefore, it is not established that expenses were wholly and exclusively incurred for the business purposes. Further, the AO noted that many expenses were accounted on the basis of self-made vouchers. In some of the supporting evidences, addresses are of the recipient were missing and vouchers were lacking proper details about the expenditure made. Therefore, the AO disallowed a lump sum amount of 2 lakhs out of the above expenditure by treating it to be incurred for non-business use and added the same back to the total income of the assessee.
The assessee is in appeal against the addition of 2 lakh made during the assessment proceedings. The counsel for the assessee submitted that, the disallowance has been made on a purely ad-hoc basis, without finding any fault in the audited books submitted before the AO during the course of assessment proceedings. Accordingly, the AO has erred in law and on facts in making disallowance of 2 lakhs on a purely ad-hoc basis, which is impermissible law.
The AO has not disputed that, the accounts and records the assessee are audited under the provisions of Section 44AB of the Act. The AO has not rejected the books of the assessee. In the case of Katira Construction Ltd. v. ACIT, ITAT held that where books of account of assessee have not been rejected, onus is on Assessing Officer to point out specific expenses which were not incurred in connection with business and thereafter, he can make disallowance under provisions of Section 37 and there is no provision provided under Act empowering Assessing Officer to make disallowance on ad-hoc basis despite fact that assessee consents for such disallowance during assessment proceedings.
In the case of M.V.A. Seetharama Raju v. DCIT, the ITAT held that in respect of foreign travelling expenses unless Assessing Officer points out specific defects in expenditure claimed by assessee, no ad-hoc disallowance can be made for reason that assessee has not filed any evidence to justify said expenses.
In the case of Seal For Life India (P.) Ltd. v. DCIT , ITAT held that ad-hoc disallowance could not be made from total travel and conveyance expenses incurred by assessee company on ground that expenses were in respect of use of vehicles by directors of assessee company was personal in nature. In the case of ACIT v. Vanesa Cosmetics, Adhoc additions made by Assessing Officer on account of interest expenses on car having element of personal use, tour and travelling expenses and conveyance expenses respectively, without assigning any reason would not be sustainable in eyes of law.
In view of the consistent position taken by various Tribunals on the issue of disallowablility of expenses on purely ad- hoc basis, without the AO having rejected books of accounts, present Tribunal is allowing the assessee's appeal in respect of the ad-hoc disallowance. Appeal of the assessee is allowed.
Tags : Disallowablility Expenses Ad- hoc basis
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Customs, Excise and Service Tax Appellate Tribunal
China Steel Corporation India Pvt Ltd Vs C.C.-Ahmedabad
MANU/CS/0179/2022
26.07.2022
Customs
Extra Duty Deposit be refunded without filing of refund claim
Present appeal has been filed by China Steel Corporation India Pvt Ltd against denial of refund of Extra Duty Deposit paid by them in terms of CBEC Circular No.11/2001 relating to cases handled by Special Valuation Branch of the customs house.
The Appellant was engaged in import of 'Silicon Electrical Steel of Cold Rolled Full Hard (unannealed)' from China Steel Corporation India Pvt Ltd. Learned counsel for the appellant argued that the impugned order is non-speaking and passed without application of mind. He argued that the 1% EDD, paid by the appellant as per Circular No.11/2001-Cus during the provisional assessment of the bills of entries, is only a security deposit and not a payment of duty. He argued that since it is not a payment of duty, provision of Section 27 of the Customs Act, 1962 will not apply to the refund claim filed by the appellant.
The Appellants would be entitled to automatic refund of EDD without filing of application for refund under Section 27 of the Act, 1962. The High Court in case of Commissioner of Customs (Export) Chennai vs. Sayonara Exports held that, there is no need to file any refund application and the order for refund can be made suo moto.
The Appellant was not even required to file refund claim and Extra Duty Deposit (EDD) should have been refunded without filing of refund claim. In present circumstances, if and when the refund claim was filed by the Appellant cannot be treated as barred by limitation. Appeal is allowed.
Tags : EDD Refund Grant
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High Court of Bombay
Satchidananda Chintamani Behera Vs. The Vice Chancellor, Sant Gadge Baba Amravati University and Ors.
MANU/MH/2494/2022
25.07.2022
Civil
Delay should not be permitted to defeat the rights of a person to approach the Court of law
The petition challenges the order passed by University and College Tribunal, whereby the application of the petitioner seeking condonation of delay of 1 year 45 days has been dismissed. The petitioner, submits that, the Petitioner has put in 25 years of service, after which his services have been illegally terminated by Respondent no. 2 by the order, against which the Petitioner, under misconception, had approached to the Scheduled Castes and Scheduled Tribes Commission, which had directed his reinstatement, to enforce which order he had approached the Hon'ble Chancellor and various other authorities.
However, realizing that an appeal under Section 81 of the Maharashtra Public Universities Act, 2016 would be the only remedy, he had approached the counsel for filing of an appeal, which has been filed on 10th July, 2019, resulting in the aforesaid delay. He, therefore, submits that considering the services put in by the Petitioner, which have been illegally terminated, the Petitioner had a right to file an appeal.
It is a matter of record that the petitioner has put in 25 years of service and has thereafter faced the order of termination, may be after holding of an inquiry. However, right to challenge such a termination is vested with the petitioner under the provisions of Section 81 of the Maharashtra Public Universities Act. The delay occasioned, is on account of approaching a wrong forum under a mistaken impression that it was competent to redress the grievance of the petitioner vis a vis his perceived illegal termination. That being so, the delay is not of such a nature as to disentitle the petitioner of an opportunity to challenge his termination on merits. It is the trite position of law that insofar as delay is concerned, it should not be permitted to defeat the rights of a person to approach the Court of law.
In Anil Ramdas Pawar Vs. Union of India an Ors., it is held that, the Court cannot suspect the cause for delay unless it is lacking bona fides and acceptability of an application for delay is the criterion and not the length of time. In Esha Bhattacharjee Vs. Managing Committee of Ragunathpur Nafar Academy, it has been held by the Apex Court that there should be a liberal, pragmatic, justice orientated non pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalize injustice but are obliged to remove injustice.
A ground for condonation of delay was made out. The learned tribunal, from the perusal of the impugned order, appears to have gone into technicalities, which were not justified to be looked into, considering that the matter merited a liberal approach in considering the question of condonation of delay. The impugned order passed by University and College Tribunal, is set aside. Application for condonation of delay is allowed.
Tags : Delay Condonation Sufficient cause
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