From the above portion, we noticed that the Tribunal has bifurcated the expenditure in two parts – first related to investment of Rs. 5907.18 lakhs in foreign subsidiaries, it was held that the dividend income from such subsidiaries is taxable in India and that therefore, Section 14A would have no applicability. The remaining amount pertain to investment of Rs. 38 Crores [rounded off] made in Indian subsidiaries. In this respect, the Tribunal noted that the assessee had to its disposal, own interest free funds many times over the investment in question. As per the balance sheet as on 31st March 2005, the assessee had interest free fund of Rs. 929.57 Crores.
The objection of the Revenue that the deduction under Section 80IA(4)(iii) of the Act is available to an industrial park only on CBDT notifying the industrial park under Rule 18C of the Income Tax Rules, 1962 (‘the Rules’ for short). This the CBDT did only on 5th June 2006. Therefore, according to the Revenue the benefit of Section 80IA of the Act in terms of sub-section (4)(iii) thereof would be available as from Assessment Year 2007-08 and not earlier.
The Tribunal found that a tax payer can manage his affairs to reduce tax liability within the frame work of law and that the sale of goods at a lesser price to the sister concerns than to the non-sister concerns, does not violate any provision of law.
The grievance of the revenue is that the mistake ought to have been rectified by filing a revised return of income. The Tribunal held that the time to file a revised return had expired. In any event, it is not disputed that it was a bonafide mistake on the part of the respondent-assessee. In that view of the matter, imposition of penalty was not warranted.
It is not in dispute that the members of the petitioner-Association are authorized by the port authorities constituted under the Major Port Trusts Act, 1963 to provide such services. It is also not in dispute that without such authorization, such services could not be rendered by them. In fact, the petitioners have produced on record, a licence issued by port authorities authorizing the petitioners to provide such services.
On going through the said record we find that the Additional Director General, in his proceedings/orders dated 15-2-2011 has recorded that on the basis of the various searches conducted at various premises of manufacturers, godowns and dealers of various cigarette manufacturers in the country, different brands of cigarettes which were kept without any duty paying documents were seized. Huge stock of cigarettes of various brands manufactured by the petitioner without any duty paying documents were also found during the searches at Coimbatore etc. and were placed under seizure. In view of seizures of non-duty paid cigarette manufactured by the petitioner, a decision was taken to search the petitioner’s premises immediately to resume incriminating records.
We have perused the balance sheet of the company placed on record. Year after year company continued to incur huge loss. Balance sheet suggests that there is no manufacturing or other activity being undertaken by the company and with each successive year, accumulated loss swell. In fact net profit of the company is in negative since long. All these would demonstrate that the petitioners have no means of fulfilling the pre-deposit condition.
Counsel for the respondent is right in relying on sub-sections (5) and (6) of section 35EE to point out that in case the Central Government suo motu decides to issue notice to the assessee to enhance the penalty or fine or duty and after hearing the assessee decides to drop the proceedings, no grant of any opportunity to the Commissioner of Central Excise or any other officer executing the Act is envisaged.
It cannot be denied that the respondent is estopped from raising any plea against the averments made in the counter and the confirmation of balance, for which supporting documents have been produced. The respondent has not disputed the genuineness of the supporting documents. In addition to the admission made by the respondent, the petitioner has produced various invoices-cum-delivery chalan for the supply of goods and materials to the respondent on various dates as stated in the petition and also produced statement of outstanding bills.
A petition for winding up can be maintained at the behest of a creditor, whether secured or unsecured. This is evident from the provisions of section 439(1)(d). Under sub-section (2) of section 439, among others, a secured creditor is to be deemed to be a creditor within the meaning of clause (b) of sub section (1).
