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Showing 481 to 500 of 1346 Records
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2021 (1) TMI 867
Restoration of name of the company in the Register maintained by the Registrar of Companies - Section 252 (1) of the Companies Act, 2013 - HELD THAT:- The bench has directed RoC to submit his report in spite of that RoC has not submitted his report. As per Section 252(1) of the Companies Act, 2013, an opportunity was provided to RoC to submit his report, however RoC failed to submit the same.In the interest of Justice and Equity, to help Employees, Members, Shareholders, Creditors and Other stakeholders and also to improve ease of doing business, the name of Petitioner Company be restored.
The prayer sought by the Petitioner company deserves to be allowed because it is now well settled legal position that during the pendency of litigation/Court proceedings by or against the company its name can not to be removed by the RoC - Appeal allowed.
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2021 (1) TMI 866
Restoration of name of the company in the Register maintained by the Registrar of Companies, Mumbai - Section 252 (1) of the Companies Act, 2013 - HELD THAT:- The Bench is satisfied that the Company has Revenue from operations is ₹ 7,64,000/-, Fixed assets of ₹ 52,07,691/-, Cash and Cash equivalent is ₹ 15,452/-, Sundry Debtors is ₹ 2,45,654/-, Other Current Assets is ₹ 1,75,258/- and Long-Term borrowings is ₹ 54,40,124/-, and Profit of ₹ 14,206/- for year ended 31.03.2019 and Revenue from operations is ₹ 1,70,440/-, Fixed assets of ₹ 52,07,691/-, Cash and Cash equivalent is ₹ 26,343/-, Sundry Debtors is ₹ 3,42,158/-, Other Current Assets is ₹ 2,58,349/- and LongTerm borrowings is ₹ 55,77,416/-, and Profit of ₹ 32,160/- for year ended 31.03.2018. As observed above, the books of the Petitioner Company reflect that Members intend to continue its business operations of the company. Therefore, in the interest of justice the name of the company deserves to be restored in the Register of Companies maintained by the Respondent Registrar of Companies.
The Respondent is directed to restore the name of the Petitioner company in the Register of Companies subject to payment of a sum of ₹ 50,000/- as cost payable in the account of “PM-CARES” fund within thirty days from the date of receipt of copy of this order - Application allowed.
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2021 (1) TMI 865
Seeking restoration of its name in the Register of Companies - Section 252 (3) of the Companies Act, 2013 - HELD THAT:- The material available on record indicates that the failure of the Company to furnish the statutory returns with the RoC was not intentional. Apparently the Company has been carrying on its operations as the financial statements would indicate. Unless the Company's name is restored it will prejudicially affect its prospects and adversely influence the Directors in their future endeavours. The promoters of the Company as well as the Appellants are keen to carry on and perform the objects of the Company in right earnest. There have been substantial investments in the project. The Company is continuing its business. Unless the name of the Company is restored in the Register of Companies it would suffer financially and pay go out of business. The directors of the company would also face disqualification.
The name of the Company should be restored in the Register of Companies - Application allowed.
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2021 (1) TMI 864
Restoration of the Company's name in the Register of Companies maintained by Registrar of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- The Appellant has filed documents and records in support of its stand that the company was in operation and pursuing activities during the period of striking off the name of the company and has brought forward the following facts about it being in operation and functional during the period of striking off:
i) The copies of Balance Sheet of the company for the financial years from 31.03.2017 to 31.03.2020. The Balance Sheet as on 31.03.2020 reflects Inventories of ₹ 9,83,7,666.00/-, Cash and Cash Equivalent of ₹ 2,76,092.16/- P & L account shows loss of ₹ 11,500.00/-
ii) The copy of Bank Statements of the Company for the period 01.04.2019 to 27.11.2020 showing various transaction details of the Company and reflecting closing balance of ₹ 1,94,496.66/- as on 27.11.2020.
iii) The Copy of Income Tax Return for Assessment Year 2019-20. The tax paid for Assessment Year 2019-20 is ₹ 1,000/-
iv) The copy of sale deed executed on 14.06.2008 between M/s Salasar Balaji Builder and Colonisers Private Limited as seller and the Company as purchaser of property namely Shop No. G-59, G-60, F-48D, F-49D which is situated at Commercial Block Plot No. 3, Sector No. 5, near Soni Hospital, Vidyadhar Nagar, Sikar Road, Jaipur at a sale consideration of ₹ 46,43,934/-.
The RoC has filed report and has not stated any objections but has directed that the Company should file the returns as required under the provisions of the Companies Act, 2013 - this Bench is of the view that it is a fit case for restoration of the name of the company.
The restoration of the Appellant Company's name, i.e. Shri Balaji Superme Propcon Private Limited, in the Register of Companies maintained by the RoC, is hereby ordered - Appeal allowed - application restored.
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2021 (1) TMI 863
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute - HELD THAT:- It is noticed that the Petitioner Corporate Applicant has submitted all relevant particulars and information, supported by document, to meet the requirement of the I B Code. Hence the present Petition is found complete and its filing is found in order in all respect.
Application admitted.
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2021 (1) TMI 862
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor - no information regarding Financial Creditor who has classified the account of the Corporate Debtor as NPA - existence of debt and dispute or not - HELD THAT:- It is noted that Corporate Debtor has not participated in this proceeding and, therefore, we proceed to decide this application after hearing the learned counsel Mr. Tirth Nayak for the Operational Creditor and material on record. From the perusal of MCA data, it is noted that there are open charges on the assets of the Corporate Debtor which are of significant value. Thus, non participation of Corporate Debtor leads to an inference that Corporate Debtor in fact wishes to be admitted into CIRP. We, as Adjudicating Authority, have got limited options in such situations. The Corporate Debtor is not MSME; hence, any attempt by the management/ owners of the Corporate Debtor to complete in a hidden manner needs to be prevented. No data has been provided to us as to whether there is any Financial Creditor who has classified the account of the Corporate Debtor as NPA and, if so, then from which date? This is particularly important from the aspect that management of the Corporate Debtor should not come back indirectly. The role of COC would be clearly important to prevent the misuse of provisions of Section 29A of the CODE.
The application is liable to be admitted as there is a debt which is due and payable i.e. not barred by limitation and there is no pre-existing dispute. The application is otherwise complete and defect free and complies with the all requirements of provisions of IBC, 2016 r. w. relevant Regulations - application admitted - moratorium declared.
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2021 (1) TMI 861
Maintainability of petition - availability of alternative and most efficacious remedy of filing an appeal - appealable order and statutory appeal - Section 86(1) of the Finance Act, 1994 - Violation of principles of natural justice - HELD THAT:- There cannot be any doubt that the impugned order is an appealable order and statutory appeal under Section 86(1) of the Finance Act, 1994 lies before the Customs Excise and Service Tax Appellate Tribunal, Bangalore.
In the wake of availability of alternate remedy, this Court can entertain the writ petition in a very limited arena. For entertaining writ petition in the wake of alternate remedy, the petitioner has to demonstrate that the order impugned in the writ petition was passed in defiance of the fundamental principles of judicial procedure or in utter violation of principles of judicial justice. Perusal of the impugned order shows that the assessing authority has considered the contentions regarding lack of jurisdiction and has recorded a finding against the petitioner. It is also seen from the impugned order that the judgments cited by the petitioner were taken note of while passing the impugned order. Therefore, it cannot be said that the impugned order is passed violating the principles of natural justice or that the same is contrary to the fundamental principles of judicial procedure, warranting entertainment thereof despite availability of alternate statutory remedy.
It cannot be said that despite availability of alternate remedy in filing the appeal, the writ petition needs to be entertained - The writ petition as such is disposed of with liberty to the petitioner to avail alternate remedy.
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2021 (1) TMI 860
Violation of principles of natural justice - impugned order has been challenged primarily on the ground that no opportunity of personal hearing was given to the petitioner before the impugned order was passed - HELD THAT:- Since the dispute pertains to the years 2009 to 2014, the respondent Commissioner of Central Excise is requested to dispose the proceedings within a period of three months from the date of receipt of a copy of this order.
Petition disposed off.
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2021 (1) TMI 859
Refund-set off - allegation of false claim for set-off (refund of sales tax) admissible to dealers, engaged in the business of extracting oil from power oil ghanas, whose sales were exempted under Entry No.39, Schedule ‘A’ appended to the Bombay Sales Tax Act - offences punishable under Sections 120-B, 409, 420, 468, 471, 477-A read with Section 109 of the Indian Penal Code and under Sections 5(2) read with Section 5(1) (d) and 5(1)(c)of the Prevention of Corruption Act, 1947 - HELD THAT:- The prosecution had examined the officers of the Sales Tax Department. The tenor of the evidence of Assistant Commissioner is not suggesting that the assessment orders passed by Mr. Kagane, which resulted in refund-set-off, were illmotivated; but were incorrect and illegal orders due to procedural irregularity committed by him. Therefore, it is to be said that the conviction recorded by the learned trial Court was to a great extent, based on the evidence of the approver.
Upon excluding approver’s evidence, the remaining evidence was not sufficient to establish beyond reasonable doubt that the deceased had committed the offences for which he was charged and tried - Appeal allowed - decided in favor of appellant.
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2021 (1) TMI 858
Direction to the Respondent No.1 to issue “Form C” - Central Sales Tax Act, 1956 - year 2016-17 - Respondent contends that this Court has recently in similar matters been either adjourning matters or is allowing the petition but suspending the relief till the civil appeals pending in the Supreme Court are decided - HELD THAT:- This Court is of the view that no useful purpose would be served by keeping the petition pending. Consequently, it directs Respondent No. 1 to allow the Petitioner to amend in its return of Third Quarter for the Financial Year 2016-17 (01.10.2016 to 31.12.2016) and issue segregated and separate Form C in terms of the prayer Clause-(i) to the writ petition (subject to verification of entitlement on merits and not on the ground of limitation). However, this direction shall remain suspended till the Civil Appeals pending before the Supreme Court, taken note of hereinabove, are decided and this direction shall abide by the decision that the Supreme Court renders.
Petition disposed off.
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2021 (1) TMI 857
Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - respondent fairly submits that the issue involved in this Writ Petition is squarely covered by a decision of this Court in the case of M/s. Dhandapani Cement Private Limited Vs. The State of Tamil Nadu, [2019 (2) TMI 1850 - MADRAS HIGH COURT] wherein on identical issue it was held that Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use. Upon enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] Ltd can be extended only to those dealers in that are party to the decision. This stand is unacceptable in so far as the decision of this Court as well as other High Courts, one of which has been confirmed by the Supreme Court, are decisions in rem, applicable to all dealers that seek benefit thereunder, of course, in accordance with law.
HELD THAT:- The State has, after the date of the above order, filed a Writ Appeal challenging the decision in the case of Ramco Cements that has been considered and dismissed by a Division Bench of this Court in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] and it was held that Appellant State and the Revenue Authorities are directed not to restrict the use of 'C' Forms for the inter-State purchases of six commodities by the Respondent/Assessees and other registered Dealers at concessional rate of tax and they are further directed to permit Online downloading of such Declaration in 'C' Forms to such Dealers.
Petition allowed.
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2021 (1) TMI 856
Benefit of grant of regularization and other service benefits - non-fulfilment of conditions as per the Recruitment Rules of MTS that is with regard to the age - HELD THAT:- In order to attract the contempt of the courts, the order should be very specific and clear in terms as we have noted above, the CAT has not directed the regularization of the respondent herein, but only directed for consideration of the representation of respondent herein. The said direction has been strictly complied and the application of the respondent has been considered and a considered order has been passed as noted supra. Therefore, if at all the respondent is aggrieved by the order passed by the petitioner No.1 herein dated 31.08.2018 as per Annexure-G, he ought to have challenged the said order and in that context the Tribunal may get an opportunity to examine whether that particular order is in accordance with law or not, then only it would have passed an appropriate order in that regard, instead of that contempt proceedings has been initiated which is not in our opinion justified. Hence, the order impugned deserves to be quashed.
Petition allowed.
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2021 (1) TMI 855
Dishonor of cheque - pre-trial before the actual trial begins - rebuttal of presumption - Sections 118, 138 and 139 of the Negotiable Instrument Act - HELD THAT:- It is manifestly clear that a dishonour would constitute an offence only if the cheque is returned by the bank ''unpaid' either because the amount of money standing to the credit of the drawer's account is insufficient to honour the cheque or that the amount exceeds the amount arranged to be paid from that account by an agreement with that bank. Now, for an offence under Section 138 NI Act, it is essential that the cheque must have been issued in discharge of legal debt or liability by accused on an account maintained by him with a bank and on presentation of such cheque for encashment within its period of validity, the cheque must have been returned unpaid. The payee of the cheque must have issued legal notice of demand within 30 days from the receipt of the information by him from the bank regarding such dishonor and where the drawer of the cheque fails to make the payment within 15 days of the receipt of the aforesaid legal demand notice, cause of action under Section 138 NI Act arises.
This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused-applicant, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint case filed by opposite party no.2 and the statements of the complainant and her witnesses under Sections 200 and 202 Cr.P.C. makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused.
The prayer for quashing the impugned summoning order dated 13th March, 2019 as well as the entire proceedings of the Complaint Case No. 14 of 2019 under Section 138 of Negotiable Instrument Act, Police Station-Aurai, District-Bhadohi, pending in the Court of Additional Chief Judicial Magistrate, Bhadohi, Gyanpur, are refused.
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2021 (1) TMI 854
Scope of the bar of cognizance imposed under Section 439(2) of the Act of 2013 - Section 439(2) of Act of 2013 and Section 19(1) of Prevention of Corruption Act are in pari materia with each other or not - proceedings against the directors of a company and/or the company under Section 439(2) of the Act of 2013.
Whether the application in IA No.2/2020 under Order VI Rule 16 of CPC is required to be allowed? - HELD THAT:- The averments made and the documents produced therein cannot be said to prejudice or delay the matter inasmuch as the above petition having been filed on 4.08.2020, the respondent having entered appearance and filed its objections on 3.10.2020, the above matter was taken up on 20.11.2020, 2.12.2020, 14.12.2020, 17.12.2020, 18.12.2020, when it did not reach on account of paucity of time, it was however taken up for hearing on 22.12.2020 at the request of both the counsels. Thus, there cannot be said to be any delay on account of the rejoinder the matter was taken up for final disposal at the request of both the counsels on 22.12.2020, the rejoinder having been filed on 11.12.2020 - the filing of the rejoinder and production of documents would not cause any abuse of process of the court.
Whether Section 439(2) of Act of 2013 and Section 19(1) of Prevention of Corruption Act are in pari materia with each other? - HELD THAT:- The requirement of prior sanction under the Prevention of Corruption Act is to protect an officer against unnecessary prosecution during the time that he was discharging his function as an officer of the State, in such situation it is mandated that prior sanction from the concerned authority has to be obtained which authority would apply its mind to the facts and come to a conclusion as to whether the proceedings are to be initiated or not - the same cannot be equated to authorised person under Section 439. There is a specific prohibition to the Court to take cognizance except upon a complaint in writing by the registrar, a shareholder of the company or a person authorised by the Central Government in that behalf.
Admittedly, the respondent is neither the Registrar nor a shareholder nor has he obtained any authorisation from the Central Government. Therefore, the respondent would not in my considered opinion have any locus to initiate penal proceedings under Section 439 of the Act of 2013 or even if he initiates any action, the court dealing with such a matter cannot take cognizance of such a complaint - the Act of 2013 being a Special enactment containing a specific embargo, the embargo is required to be given complete effect to by this Court. This Court cannot travel beyond the intention of the legislature and water down the requirements of Section 439 - the finding of the Special Economic Court in its order dated 3.7.2017 was proper and correct. Section 19 of the Prevention of Corruption Act and Section 439 of Act of 2013 are not pari materia with each other.
Whether any person can file a proceedings against the directors of a company and/or the company under Section 439(2) of the Act of 2013? - HELD THAT:- Apart from the named persons a complaint can also be filed by a person authorised by Securities and Exchange Board of India in terms of the proviso (1) of Section 439(2) or the Official Liquidator in terms of Section 439(4), no other person can initiate any criminal proceeding against a company for the offence committed under the Act of 2013.
Whether the order of Revisional court dated 3.07.2020 requires any interference? - HELD THAT:- It is reiterated that it is not the qualification of the accused or the designation of the accused or status of the accused which is of relevance under Section 439(2) of the Act of 2013. Therefore, it is not relevant to consider whether the accused were directors or continue to be the directors as on the date of filing of the complaint. The Rivisional Court completely misdirected itself in this regard by adverting to the qualification of the accused rather than the qualification of the complainant.
Petition allowed.
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2021 (1) TMI 853
Dishonor of Cheque - error apparent on the face of record or not - offence punishable under Section 138 of the N.I. Act - HELD THAT:- This Court did not notice any error apparent on record with the well reasoned orders of the learned Magistrate and the learned First Appellate Court. Suffice to say that, though under Section 138 of the N.I. Act, the Court is entitled to order for double the cheque amount as fine and imprisonment for two years, having regard to the facts and circumstances of the case on hand, the learned Magistrate awarded fine of ₹ 39,000/-, out of which, ₹ 37,000/- was ordered to be paid as compensation to the complainant along with imprisonment of six months.
In the considered opinion of the Court, awarding simple imprisonment for a period of six months is not supported by valid reasons. Therefore, to that extent, this Court is of the opinion that the simple imprisonment of six months is excessive and the same needs to be set aside. However, having regard to the facts and circumstances of the case, especially in the pandemic COVID-19, granting three months with fine of ₹ 39,000/- less the amount deposited before the First Appellate Court would meet the ends of justice - Revision petition allowed in part.
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2021 (1) TMI 852
Dishonor of Cheque - seeking permission to compound the offence under Section 147 of the N.I Act and also reporting the settlement of the matter between the parties - HELD THAT:- The parties have settled the matter out of their own volition with free consent and keeping their mutual interest under consideration, as such, they may be permitted to compound the offence under Section 147 of the N.I. Act.
Section 147 of N.I. Act has made every offence punishable under the N.I. Act as compoundable. As such, there is no bar for the parties in the proceeding to compound the offence - However, at the same time the guidelines laid down by Hon'ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H [2010 (5) TMI 380 - SUPREME COURT] regarding imposing graded cost on litigant also to be borne in mind - According to the said Judgment in Damodar S. Prabhu's Case, if the application for compounding is made before the Sessions Court or High Court in revision or appeal, such compounding is permitted to be allowed on the common condition that the accused pays 15% of the cheque amount by way of cost.
Application allowed.
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2021 (1) TMI 851
Dishonor of Cheque - defence taken by the accused is that while he was proceeding in a Car, he met with an accident, wherein he lost the cheques and one of those cheques have been mis-used by the complainant - Section 138 of the Negotiable Instruments Act.
Whether the finding recorded by the learned Magistrate that accused has committed an offence under Section 138 of the Negotiable Instruments Act confirmed by the first Appellate Court is erroneous? - HELD THAT:- It is the accused who has taken the contention that there is a material alteration in Ex.P-1. It was required for the accused to make an application seeking necessary orders to refer the Ex.P-1 for hand-writing expert. No such application is filed by the accused before the learned Magistrate or atleast before the first Appellate Court. All along, the accused tried to impress upon the Court that a cheque has been mis-used by the complainant. But, no complaint is filed by the accused as against the complainant even after he came to know about the filing of the criminal complaint against him in CC No.35/2010. Why accused did not take any action against the complainant about the mis-use of Ex.P1 is not explained by the accused. PW-2 who is the Manager of the Indian Overseas Bank, Tumkur has specifically deposed before the Court that the signatures found in Ex.P1 tallies with the specimen signatures maintained by the Bank - These aspects of the matter has been properly appreciated by the learned Magistrate as well as the first Appellate Court in the impugned judgment.
This court in the revisional jurisdiction with the limited scope of revision, cannot re-visit to the minute details in the case especially when there is a concurrent finding of facts of both the courts. Suffice to say when the materials available on record and the reasonings recorded by both the courts in the impugned judgments, do not suffer from legal infirmity so as to interfere with the same in this Revision Petition there cannot be any dispute as to the principles of law enunciated in the judgments cited by the learned counsel for the Revision Petitioner. But the facts in the said case and the facts of the case on hand are altogether different and in the absence of any positive evidence placed by the accused, the finding recorded and the alteration found in Ex.P1 signed by accused is not a material alteration and therefore, the said decision, principles cited in the said case is not of much avail to the revision to seek an order of interference by this court.
Whether the sentence passed by the learned Magistrate in CC No.35/2010 and confirmed in Criminal Appeal is erroneous? - HELD THAT:- The Trial Court while passing the impugned judgment has passed conviction order sentencing the accused to undergo simple imprisonment for a period of one year for the offence punishable under Section 138 of the Negotiable Instruments Act - It is pertinent to note that the operative portion of the order do not contain a sentence of fine ordered as against the accused but only compensation of ₹ 2 lakhs is ordered. In paragraph 28 of the judgment, there is a discussion as to why the learned Magistrate is imposing fine of ₹ 2,00,000/-. The learned Magistrate has rightly observed that accused has set up all possible evidence that are available to the accused to failed to substantiate the said defence and therefore, he has caused mandatory loss to the complainant and hence ordered for compensation of a sum of ₹ 2,00,000/-.
Whenever a compensation is awarded in a matter of this nature, it is needless to emphasize that the accused must be sentenced to pay a fine of ₹ 5,000/- and out of the fine amount, but the Trial Court has not fined the accused and passed an order of imprisonment for one year. Though there is a serious legal flaw in such an evidence, the first Appellate Court unfortunately did not bestow its attention to correct the same. The Trial Court did not assign any reasons for ordering the imprisonment of one year - It is well settled principle of law and requires no emphasis that assigning the reasons to reach a conclusion is a cine qua non. In fact, the reasons are heart beat of any judgment. This aspect of the matter is ignored by the first Appellate Court while confirming the order passed by the learned Magistrate.
Having regard to the fact that the accused failed to prove his defence that he lost the cheques and the same has been mis-used by the complainant, awarding a sum of ₹ 2,00,000/- as the compensation payable to the complainant as against the cheque amount of ₹ 1,25,000/- is reasonable. However, since the accused has not lodged any complaint or stated the same before the learned Magistrate, it is necessary for this court to pass an appropriate sentence - Revision allowed in part.
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2021 (1) TMI 850
Addition u/s 68 - unsecured loan obtained - CIT(A) confirmed this addition on the ground that assessee has failed to prove identity, creditworthiness and genuineness of the transaction - HELD THAT:- The assessee has explained the fact that this loan was taken in the preceding year and it is only an opening balance as on 01.04.2013. This fact has not been examined by the ld. CIT(A) while confirming the addition. If the loan was introduced in the preceding year and the AO while passing the assessment order u/s. 143(3) for the AY 2013-14 has not doubted the genuineness of the loan then the same cannot be held as a bogus sundry creditor for the year under consideration.
Neither the AO nor the CIT(A) has verified and consider this explanation of the assessee that this amount is only a brought forward amount and shown as opening balance and no new loan was taken from Smt. Sharda Singh during the year under consideration. Hence, this issue is remanded to the record of the ld. CIT(A) for limited purpose to verify this fact from the record whether this amount was only an opening balance and brought forward from the preceding year and then decide the issue afresh.
Disallowances of expenses - assessee has failed to furnish any satisfactory explanation for the downfall of the GP and NP during the year under consideration as well as supporting evidence of the expenses - Addition confirmed by the CIT(A) to the extent of 5% as against 25% made by the Assessing Officer - HELD THAT:- From the details of the expenditure, it is noted that the expenditure under the head shop and office rent cannot be doubted as it is a recurring expenditure and the amount debited in the P&L account cannot be disallowed on percentage basis. Accordingly, the disallowance of 5% as confirmed by the ld. CIT(A) on the shop and office rent is deleted. So far as the disallowance of 5% in respect of the other expenditure is concerned since, the assessee has failed to produce the supporting bills and vouchers to establish that the said expenditure has been incurred wholly and exclusively for the business purpose the 5% disallowance is reasonable and proper. Accordingly, the disallowance made by the ld. CIT(A) is restricted to the expenses other than shop and office rent.
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2021 (1) TMI 849
Levy of GST - Reverse Charge Mechanism - salary paid to Director of the company who is paid salary as per employment contract, after deduction of TDS as well as PF - situation if the Director also is a part time Director in other company also - Challenge to AAR decision - HELD THAT:- The Rajasthan Authority for Advance Ruling (AAR) in IN RE: M/S. CLAY CRAFT INDIA PVT. LTD., [2020 (4) TMI 228 - AUTHORITY FOR ADVANCE RULING RAJASTHAN] pronounced that the consideration paid to the Directors by the applicant company will attract GST under reverse charge mechanism and the situation will remain the same if the director is also a part time director in another company.
The CBIC has recently issued a Circular No. 140/10/2020 - GST dated 10.06.2020 under File No. CBEC-20/10/05/2020 -GST and clarified the issue in appeal. It has been clarified that (i) remuneration paid by companies to the independent directors or those directors who are not the employee of the said company is taxable in hands of the company, on reverse charge basis; and (ii) the part of Director’s remuneration which are declared as “Salaries in the books of a company and subjected to TDS under Section 192 of the IT Act, are not taxable being consideration for services by an employee to the employer in the course of or in relation to his employment in terms of Schedule III of the CGST Act, 2017 - it is further clarified that the part of employee Director’s remuneration which is declared separately other than “salaries” in the Company’s accounts and subjected to TDS under Section 194J of the IT Act as Fees for professional or Technical Services shall be treated as consideration for providing services which are outside the scope of Schedule III of the CGST Act, and is therefore, taxable. Further, in terms of notification No. 13/2017 - Central Tax (Rate) dated 28.06.2017, the recipient of the said services i.e. the Company, is liable to discharge the applicable GST on it on reverse charge basis.
The remuneration, if any, paid by the appellant to the independent directors or those directors who are not the employee of the appellant is taxable in hands of the appellant, on reverse charge basis. Further, the part of Director’s remuneration which are declared as Salaries in the books of the appellant and subjected to TDS under Section 192 of the IT Act, are not taxable being consideration for services by an employee to the employer in the course of or in relation to his employment in terms of Schedule III of the CGST Act, 2017. The part of employee Director’s remuneration which is declared separately other than “salaries” in the appellant’s accounts and subjected to TDS under Section 194J of the IT Act as Fees for professional or Technical Services shall be treated as consideration for providing services which are outside the scope of Schedule III of the CGST Act, and is therefore, taxable and in terms of notification No. 13/2017 - Central Tax (Rate) dated 28.06.2017, the recipient of the said services i.e. the appellant, is liable to discharge the applicable GST on it on reverse charge basis.
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2021 (1) TMI 848
Validity of restriction imposed under amended Rule 89(5) of the Central Goods and Services Tax Rules, 2017 vide para 2(i) of the Notification No.21/2018-Central Tax dated 18.4.2018 - ultra vires to the Section 54(3) of the Central Goods and Services Tax Act, 2017 or not - refund claim of the credit availed on input services - HELD THAT:- Since vires of Rule 89(5) of the Central Goods and Services Tax Rules, 2017 and Uttar Pradesh Goods and Services Tax Rules, 2017 has been challenged, let the notices be issued to the Attorney General of India and the Advocate General of the State.
Let the case be listed in the week commencing 8.3.2021 in the additional cause list. When the case is next listed the name of Shri Sanjay Kumar Om be shown as counsel for the respondent no.1.
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9911796707
