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2021 (1) TMI 1270
Seeking reconsideration of Scheme of Compromise and Arrangement under Section 230 of the Companies Act, 2013 - HELD THAT:- The order of the National Company Law Appellate Tribunal GURURAJ S KULKAKARNI & ORS. VERSUS GUJARAT NRE COKE LTD. IN LIQUIDATION THROUGH LIQUIDATOR MR. SUMIT BINANI [2020 (11) TMI 1072 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that no change in circumstances warranting reconsideration at the hands of the Adjudicating Authority was made out and the Adjudicating Authority was right in dismissing the application.
The appeals are accordingly dismissed.
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2021 (1) TMI 1269
Deduction u/s 35(2AB) - Appellant was not entitled to deduction u/s 35(2AB) to the extent the expenses eligible for deduction under the said provision pertained to a unit entitled for deduction under Section 10B - whether Tribunal was right in holding that the weighted deduction under Section 35(2AB) would not be available to the Appellant while computing the income of the unit eligible for relief under Section 10B? - HELD THAT:- For the reasons assigned by us in [2021 (2) TMI 112 - KARNATAKA HIGH COURT] insofar as it pertains to the finding that the assessee is not entitled to claim deduction under Section 35(2AB) of the Act is hereby quashed.
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2021 (1) TMI 1268
Vivad Se Vishwas Act, 2020 - assessee has opted to settle the dispute relating to the tax arrears under the Vivad Se Vishwas Act, 2020 for the assessment years under consideration and requested for withdrawal the said appeals - HELD THAT:- As the captioned appeals are consigned to records and treated as dismissed.
The aforesaid is subject to a caveat that in case the dispute relating to tax arrears for the captioned assessment years is not ultimately resolved in terms of the Act, the assessee shall be at liberty to approach the Tribunal for reinstitution of the appeals and the Tribunal shall consider such application appropriately as per law. The Revenue has no objection with regard to the aforesaid caveat.
Both the appeals are consigned to record and, for statistical purposes, are treated as dismissed.
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2021 (1) TMI 1267
Vivad Se Vishwas scheme 2020 - assessee requested for adjournment of the case on the ground that assessee has opted for the Vivad Se Vishwas scheme 2020 and Form No. 3 is still awaited - HELD THAT:- As captioned appeal is consigned to record and treated as dismissed. However, the aforesaid is subject to a caveat that in case the dispute relating tax arrears for the captioned assessment year is not ultimately resolved in terms of the aforesaid scheme, the assessee shall be at liberty to approach the Tribunal for reinstitution of the appeal and the Tribunal shall consider such application appropriately as per law. The Revenue has no objection with regard to the aforesaid caveat.
Appeal of the assessee is consigned to record and for statistical purposes is treated as dismissed.
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2021 (1) TMI 1266
TP Adjustment - adjustment qua AMP expenses - ALP of AMP expenses - HELD THAT:- We are of the considered opinion that the ALP of an international transaction involving AMP expenses, the adjustment made by the TPO/DRP/AO is not sustainable in the eyes of law. We cannot ignore the submission of the DR that the matter is pending before Hon'ble Apex Court and the decision of Hon'ble Apex Court would be binding upon all the authorities. We set aside the orders of authorities below and restore the matter to the file of the AO.
We hold that as per the facts of the case and the legal position as of now and discussed above in this order, the adjustment made by the TPO/DRP/AO in respect of AMP expenses is not sustainable. If the above decisions of Hon'ble Jurisdictional High Court which is under consideration before the Hon'ble Apex Court is modified or reversed by the Hon'ble Apex Court, then the Assessing Officer would pass the order afresh considering the decision of Hon'ble Apex Court. In those circumstances, he will also allow opportunity of being heard to the assessee.
We are of the considered view that following the law laid down in Sony Ericsson Mobile Communications India Pvt. Ltd.[2015 (3) TMI 580 - DELHI HIGH COURT] adjustment made by the TPO/DRP/AO on account of ALP of AMP expenses is not sustainable in the eyes of law, hence deleted. So, the appeal filed by the taxpayer is allowed and the appeal filed by the Revenue is dismissed.
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2021 (1) TMI 1265
Maintainability of petition - availability of an alternative remedy of appeal available under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - scope of 'agricultural land' - coffee plantation is agricultural land within the meaning of Section 31(i) of the SARFAESI Act - applicability of the act to coffee plantation.
Whether the writ petitions were rightly dismissed on the ground of maintainability in view of the availability of an alternative remedy before the DRT under Section 17 of the SARFAESI Act? - HELD THAT:- If the answer to the question, whether coffee plantation/estate is an agricultural land within the meaning of Section 31(c) of the SARFAESI Act, is in the affirmative, then the provisions of the Act would not apply and the action initiated by the respondent/bank would be without jurisdiction. Any action of an authority without jurisdiction goes to the root of the matter and in such a case, a writ petition would lie under Article 226 of the Constitution. In such circumstances, it would not be sound exercise of discretion to relegate the parties to the remedy by way of an appeal. This is particularly so, when a constitutional right, such as Article 300A of the Constitution is involved and the applicability of the SARFAESI Act to coffee estate in the context of whether it is an agricultural land or not would be an important question which has to be decided in the first instance before deciding on the legality of the action otherwise.
The writ petitions filed under Article 226 of the Constitution in the instant case were maintainable. This is particularly so, having regard to the issue raised in these writ petitions as it involves interpretation of law. It also touches upon the applicability of the SARFAESI Act and the jurisdiction on the respondent/bank to take measures under Section 13 of the said Act vis-à-vis the subject lands, which are coffee plantations. Hence, the question is answered in favour of the appellants.
Whether coffee plantation is an agricultural land under Section 31(i) of the SARFAESI Act? - HELD THAT:- Under the Land Reforms Act the definition of 'agriculture' is an inclusive one which also includes the raising of crops, grass or garden produce. The expression "plantation crops" is defined to mean cardamom, coffee, pepper, rubber and tea, etc. This implies that all other crops are non-plantation crops. The word "land" means agricultural land, including garden land, plantation, but does not include house site or land used exclusively for non-agricultural purposes. Under Section 104 of the said Act, certain provisions of the said Act do not apply to plantations - The word 'plantation' is explained under Section 104 to mean land used by a person principally for the cultivation of plantation crops and includes any land used ancillary to the cultivation of such crop or for preparation of the same for the market and agricultural land within the area cultivated with such crop for the protection and efficient management of such cultivation.
Under Karnataka Agricultural Income Tax Act, 1957, 'Agricultural Income' means any revenue derived from land situated within the State and used for growing plantation crops. On an analogy, the expression plantation crops would include coffee. Under the APMC Act also, under Schedule 8, coffee is included as a plantation crop. In all the aforesaid enactments, coffee has been defined to be a plantation crop.
The expression "plantation crops" is defined in Section 2(A)(25) of the Karnataka Land Reforms Act to mean cardamom, coffee, rubber, pepper and tea. Thus, in case of these plantation crops, inter alia, Sections 79-A, 79-B and 80 of the said Act would not apply. Section 79-A states that the acquisition of land by certain persons is prohibited. Section 79-B prohibits the holding of agricultural land by certain persons. Section 80 states that transfer to non-agriculturists is barred. The said Section includes not only sale, gift, exchange, lease of any land or interest therein, but also states that mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, shall not be lawful in favour of a person, who is not an agriculturist, or who is disentitled under Section 79-A or Section 79-B to acquire or hold any land, unless the Deputy Commissioner having jurisdiction over the area, permits such sale, gift or exchange, etc. - Section 81 is an exception to Section 79-A, Section 79-B and Section 80. Therefore, there could be a mortgage of any land or interest therein in favour of a bank or a financial institution and also sale of any land or interest therein mortgaged to any financial institution for enforcement of the security for any loan or other facility for agricultural purposes.
The coffee, being a plantation crop within the meaning of Section 2(A)(25) of the Land Reforms Act, is exempted from the provisions of Sections 79-A, 79-B and 80 as per Section 104 of the said Act. Also, under Section 81 of the said Act, the bar under Section 79-A, 79-B and 80 of the said Act would not apply in the case of mortgage of any land or interest therein to any financial institution as security for any loan or other facilities given by such financial institution for agricultural purposes. Hence, any land used for raising a plantation crop, if mortgaged to a financial institution, even if for non-agricultural purposes, could also be sold for enforcement of the said security.
Having regard to Section 104 and Section 81 of the Land Reforms Act, lands on which the plantation crops are grown, being exempt from the restrictions pertaining to agricultural land mentioned in Section 79-A, 79-B and 80, in view of Section 104 and Section 81 of the said Act, would not come within the scope and ambit of the 'agricultural land' under Section 31(i) of the SARFAESI Act - on a contextual interpretation, land on which plantation crops are grown is not agricultural land within the meaning of Section 31(i) of the SARFAESI Act.
It emerges that the land on which plantation crops are raised (coffee in the instant case), if mortgaged or given by way of a security to a financial institution to obtain a credit facility, whether for an agricultural purpose or for a non-agricultural purpose, the said security could be enforced and Section 31(i) of SARFAESI Act does not apply to such land. That means the financial institution can enforce the security created on such lands. We make it clear that this judgment concerns the interpretation of lands on which plantation crops are grown being construed as agricultural lands within Section 31(i) of the SARFAESI Act only as the lands in these cases concern plantation crops. We have not ventured to consider the matter in the context of non-plantation crops.
In the instant case, the securities created in the coffee plantations can be enforced for the realization of the debts as coffee plantation would not come within the scope and ambit of agricultural land under Section 31(i) of the SARFAESI Act insofar as State of Karnataka is concerned.
Thus, it is concluded:-
(i) That in these cases, the writ petitions were maintainable under Article 226 of the Constitution of India;
(ii) That the expression 'agricultural land' in Section 31(i) of the SARFAESI Act, does not include land on which plantation crops are grown namely, cardamom, coffee, pepper, rubber and tea as defined in Section 2(A)(25) of the Land Reforms Act. Therefore, the measures initiated by the respondent banks in relation to the coffee estates in these appeals are not hit by Section 31(i) of the SARFAESI Act, as the said Act is applicable to land on which plantation crops are grown, including coffee plantation, in the instant cases.
Appeal disposed off.
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2021 (1) TMI 1264
Reimbursement of differential tax amount arising out of change in tax regime from Value Added Tax (VAT) to Goods and Service Tax (GST) - requirement to pay tax which was not envisaged while entering into the agreement - change in the regime regarding works contract under GST - HELD THAT:- The Government has now come out with a revised guidelines in this respect in supersession of the guidelines issued vide Finance Department letter dated 7th December, 2017. He has filed Additional Counter Affidavit of Opposite Party-authority in similar cases annexing the revised guidelines relating to works contract under GST issued by the Government of Odisha, Finance Department vide Office memorandum No. FIN-CTI-TAX-0045-2017/38535/F Dated 10th December, 2018.
The Petitioner shall make a comprehensive representation before the appropriate authority within four weeks from today ventilating the grievance. If such a representation is filed, the authority will consider and dispose of the same, in the light of the aforesaid revised guidelines dated 10th December, 2018 issued by the Finance Department, Government of Odisha, as expeditiously as possible, preferably by 19th March, 2021.
Petition disposed off.
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2021 (1) TMI 1263
Maintainability of bail application - bail assailed on the ground that the High Court failed to consider the mandatory requirements of Section 37 of the NDPS Act - appeal has been filed after a delay of 405 days - HELD THAT:- We have been repeatedly deprecating the practice of authorities coming before this Court after inordinate delays assuming as if the Law of Limitation does not apply to them. Repeatedly, reliance is placed on the judgments of vintage when technology was not easily available. No reference is made to the subsequent judgment in the Office of the OFFICE OF THE CHIEF POST MASTER GENERAL VERSUS LIVING MEDIA INDIA LTD. [2012 (4) TMI 341 - SUPREME COURT] which has dealt with the issue that consideration of the ability of the Government to file appeal in time would have to be dealt with in the context of the technology now available and merely shuffling files from one table to the other would no more be a sufficient reason.
The irony is that despite our repeated orders, very little is done at least in taking action against concerned officers who sit on files and do nothing. The presumption is as if this Court will condone the delay for the asking. We refuse to follow such a course - it is considered appropriate to follow the same course of action in the present case and impose costs of Rs.25,000/- on the petitioner to be recovered from the officers concerned. The cost be deposited in Supreme Court Advocates on Record Welfare Fund within four weeks along with the certificate of recovery from the officers concerned.
The special leave petition is dismissed on the ground of delay.
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2021 (1) TMI 1262
Misbehaviour with the victim - framing of charges for offence under section 354 IPC and Section 7 of the POSCO Act - accused has denied the charges and claimed to be tried - HELD THAT:- Admittedly on the side of the prosecution, totally 10 witnesses were examined out of which, P.W.1 is the victim. She has clearly deposed that she is working in the private textile mill; on 26.10.2014 since it was Sunday she did not go to the mill, she went along with her father for grazing cattles. At about 4 p.m., father told the victim to go to the house with the cow. While going to home along with the cow, the appellant intercepted and misbehaved with her. Immediately she raised her voice. After hearing the voice of his daughter, P.W.2 father rushed there. Subsequently, the appellant left from the scene of occurrence. The same was immediately informed to the father and father also informed to his wife i.e., mother of P.W.1. It is the usual practice in the villages, if anything happened to a girl child, parents may not immediately go to the police station for their grievances because they would think about the future of the child.
It is settled proposition of law that lapse on the part of the prosecution should not lead unmerited acquittal, subjected to rider that in such a situation, evidence on record should be clinching so that lapses of prosecution can be condoned. In a case like this, the Court has to consider the suffering of the victim and testify the veracity of evidence of the prosecution witnesses. The aspect regarding whether the complainant has given the complaint immediately, registered the FIR immediately, and whether the Police sent the FIR to the Court immediately or not are all beyond the control of the victim, for which defects on the part of the investigating officer, which purely arose due to the lethargic attitude of the investigating officer, for which, the victim would not be made to suffer. This Court cannot take any hypothetical view in this case since there is no serious infirmity in the prosecution case. Mere technicalities should not be allowed to stand in way of administration of Justice.
A reading of the evidence of victim clearly shows that the offence under section 7 of POCSO Act is committed by the appellant. This Court carefully seeing the evidence of the victim girl, which is cogent and trustworthy. Her evidence was corroborated by her father who was examined as P.W.2. If the evidence of sole witness is cogent, incredible and trustworthy conviction is permissible. The evidence of interested witnesses, if found to have creditworthiness, conviction could be based on uncorroborated testimony.
A careful reading of the evidence of the victim girl and her father P.W.2, this Court does not find any reason to discard the same. The prosecution has established its case beyond all reasonable doubt. The trial Court has given the reasons for conviction and therefore, petition under Section 391(1)Cr.P.C., is concerned, those documents were very much available even at the time of trial and examination of the witnesses - As far as the case on hand is concerned, it comes under POSCO Act and the minor girl clearly had stated that she undergone sexual harassment and in such situation, the parents of the minor girl will not boldly come out immediately and lodge complaint but used to think about the future of the girl and also approach the village elders; if they are not able to get any solution, then they will approach the police station. In this case also, they have done the same.
The appellate Court is a fact finding Court, which has to necessarily re-appreciate the entire evidence and give independent finding. Accordingly, this Court also finds that the appellant has committed offence under section 7 which is punishable under Section 8 of POCSO Act 2012 and the trial Court rightly appreciated the evidence and convicted the appellant and sentenced him to undergo three years rigorous imprisonment and to pay fine of Rs.5,000/- in default to undergo six months simple imprisonment. Therefore this Court does not find any merit in the appeal and the Criminal Appeal is dismissed.
Appeal dismissed.
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2021 (1) TMI 1261
Dismissal of appeal on non prosecution - Tribunal dismissed the appeal on the ground of the nonappearance of the writ applicant - HELD THAT:- As learned council seeks to rely on Rule 24 of the Income Tax Rules, 1963 which makes it abundantly clear that the tribunal cannot dismiss the appeal without adverting to the merits. Even on the day on which the hearing is adjourned, the appellant chose not to appear in present or through an authorized representative. It would incumbent upon the tribunal to dispose of the appeal on merits. Mr. Dave, the learned counsel seeks to rely on the decision of this High Court in the case of Sanket Estate & Finance (P.) Ltd. [2012 (12) TMI 991 - GUJARAT HIGH COURT].
Let Notice be issued to the respondents for final disposal, returnable on 10/02/2021. On the returnable date, notify the matter on top of the board.
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2021 (1) TMI 1260
Disallowance u/s. 14A of the Act r.w. Rule 8D - HELD THAT:- The first question is covered by a decision of this Court in the case of CIT Vs. Corrtech Energy Pvt. Ltd. [2014 (3) TMI 856 - GUJARAT HIGH COURT] The view taken therein is that, when the assessee has not made claim for exemption in the income from payment of tax in disallowance could be made under Section 14A of the Act.
Addition on account of disallowance u/s. 14A r.w Rule 8D while computing Book Profit u/s. 115JB - HELD THAT:- The second question would also not survive once the view is taken that there could not have been any disallowance under Section 14A read with Rule 8D of the Act. In such circumstances, there is no question of computing the Book Profit under Section 115JB of the Act. In other words, the expenses incurred to exempt the income cannot be added for computing the Book Profit under Section 115JB of the Act.
We may clarify that since the disallowance under Section 14A itself has been deleted, therefore, there is no question of adding back under Section 115JB
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2021 (1) TMI 1259
Maintainability of appeal - HELD THAT:- When the issue in question is sub-judice before this Tribunal as well as Appellate Tribunal, IA No. 445 of 2020 cannot be decided in isolation and thus we are inclined to take up this IA along with main CP, when the Appeals are decided.
The Interim orders passed on 22.12.2020 in IA No 445 of 20 are hereby extended until further orders. Post CP and IA on 05.02.2021 for final hearing.
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2021 (1) TMI 1258
Rejection of claim of the Appellant relating to provident fund dues - rejected partially ignoring the mandate of Section 36 of the Insolvency & Bankruptcy Code, 2016 as also order of Division Bench of NCLT, Mumbai Bench in case of Precision Fasteners Ltd. v. Employees’ Provident Fund Organization [2018 (9) TMI 1532 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI].
HELD THAT:- Issue notice upon Respondents. Appellant to provide mobile Nos./ e-mail address of the Respondents. Notice be issued through e-mail or any other available mode. Requisites along with process fee be filed within two days.
List the appeal ‘for admission (after notice)’ on 5th February, 2021
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2021 (1) TMI 1257
Grant of anticipatory bail - petitioner acted as a guarantor to a loan facility obtained by one of the sister concern Society of the Company - Default in repayment of loan - It was held by Delhi High Court that Keeping in view the serious allegations mentioned above against the petitioner, who has played key role in the present case and due to the material documents which are required to be seized from the petitioner, for which custodial interrogation is required, therefore, I am not inclined to grant anticipatory bail to the petitioner.
HELD THAT:- There are no reason to interfere in the matter. The Special Leave Petition is, accordingly, dismissed.
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2021 (1) TMI 1256
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- The Operational Creditor filed this application under assumption that it will get the benefit of Section 18 of Law of Limitation to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor - Bare reading of provisions of Section 18, Law of Limitation shows that such acknowledgement of debt must be within three (03) years from the date, on which, such debt became due and payable. 5. In this case, the debt was due and payable in the year 2006, whereas, so called acknowledgement of the debt by the Corporate Debtor was made in 2015, i.e. beyond the period of three years.
Considering the provisions of Law of Limitation, in Section 18 read with Article 137, it is held that this proceeding is not maintainable as it is filed beyond the period of limitation - application dismissed.
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2021 (1) TMI 1255
Valuation of supply of services - act of recovering electricity expenses by the appellant - Pure Agent Services or not - Whether reimbursement of electricity expenses, by the lessee to lesser (appellant) would form part of taxable value? - HELD THAT:- In the instant case, reimbursement of electricity expenses had not been made on actual basis, by the lessee to lesser as it had been collected in advance with rent and further adjusted by raising the invoice/bill/memo/document by the lessor. Further, the appellant has failed to establish themselves as a pure agent. Therefore, in the instant case, the so called reimbursement of electricity expenses would form part of taxable value in term of clause (c) subsection (2) of section 15 of the CGST Act, 2017 - appellant is not working as pure agent.
The appellant has stressed upon Ruling given by the Authority for Advance Ruling Gujarat in the case of IN RE: M/S. GUJARAT NARMADA VALLEY FERTILIZERS & CHEMICALS LTD.,[2021 (1) TMI 596 - AUTHORITY FOR ADVANCE RULING, GUJARAT] - In this regard, it is opined that these orders have not been passed by the higher forum than the present one; therefore, the same are not being considered.
Appeal disposed off.
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2021 (1) TMI 1254
Credit of GST paid - credit of the GST charged by vendor at the time of supply of goods and services to it, which are used for carrying out the following activities for setting up of MRO facility which will be rented out - non-speaking order - violation of principles of natural justice - HELD THAT:- The appellant, nowhere in their appeal memo, could bring forth any evidence of availability of any such contingencies as enumerated above for producing substantial additional documents at the appellate stage. Given the fact that the appellate authority, neither has been empowered to entertain these additional facts nor, in absence of an specific provision, have the right to remand the case back to the original authority, we find ourselves not able to take up these additional evidences despite of several case laws having been cited by the appellant in their favour which pertains to the earlier period. The appellant has placed reliance upon several case laws in support of his claim that additional substantial evidences can be produced at the appellate stage.
The case law relied upon by the appellant in the case of NORTH EASTERN RAILWAY ADMINISTRATION, GORAKHPUR VERSUS BHAGWAN DAS [2008 (4) TMI 544 - SUPREME COURT] wherein it has been held by the apex court that though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 C.P.C., which carves out an exception to the general Rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and imitations as may be prescribed. From the facts of the case and the relevant provisions as contained in the rule 112 as referred to above, the additional substantial evidences cannot be allowed to be relied upon at the appellate stage.
Section 16 (1) of the CGST Act specifically provides that every registered person shall be entitled to take credit of the input tax charged on any supply of goods or services or both made to him, which are used or intended to be used in the course or furtherance of his business. Such entitlement is subject to fulfillment of certain conditions such as possession of invoice, receipt of goods/service, payment of tax to Government etc. as provided under section 16(2) of the GST Act, 2017. However, the availability of credit is subject to the restrictions as stipulated under Section 17(5)(d) of the GST Act - it is clear that the restriction imposed herein is absolute in nature as it seeks to override Section 16(1) which entitles a registered taxpayer to avail credit on goods or services used or intended to be used in the course or furtherance of business. Irrespective of the fact that the goods or services are used for construction of immovable property which in turn will be used for conducting business, credit is not available; if the ownership of the property remains with the said person. The legislature, in his wisdom, think it proper to stop the flow of seamless credit once immovable property comes into existence and the ownership is fixed.
After having been established the fact that the civil construction undertaken by the appellant is not a plant but an immovable property, we came to the another argument of the appellant where they claim that construction was under taken on account of Elcom and not on their own account and therefore the bar in section 17(5)(d) does not apply to such immovable property, it is observed that at the time of construction, every structure is constructed with a special purpose in the supervision of his own or other. The fact remained that appellant is the owner of the said immovable property -and it has not been sold to any other person. In future, it may be used for other than specific purpose related to his own and/or other without change of a brick. In future, the appellant's construction may also be used many other but quite different purposes by the appellant himself or by other with agreement of appellant - Against the material receipts, the Appellant has paid the bill amount in advance for procuring of goods and services. Further, it has been agreed that M/s Akanksha Contracts Pvt. Ltd. will raise a consolidate invoice for each month, which will include value of both goods and services so supplied along with adjustments regarding the advance so received.
In view of specific exclusion mentioned under Section 17(5) (c) & (d) of CGST Act, it is concluded that ITC is not available for construction of an immovable property even when such goods or services or both are used in course or furtherance of business.
The appeal filed by the appellant has no merit and rejected accordingly.
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2021 (1) TMI 1253
Rectification u/s.254(2) - additional ground raised in respect of deduction claimed on account of education cess which was dismissed by the Tribunal while passing its order as not an allowable expenditure - HELD THAT:- We find that this Tribunal admittedly while disposing off its appeal and more particularly in the additional ground raised in respect of deduction claimed on account of education cess, had inadvertantly lost sight of the decision of the Hon’ble Rajasthan High Court [2018 (10) TMI 589 - RAJASTHAN HIGH COURT] and other Tribunal decisions quoted by the assessee on the impugned issue and had rendered its decision.
We are also inclined to accept to the proposition of the ld. Counsel for the assessee that when there is a particular decision of the Hon’ble Jurisdictional High Court which was rendered subsequent to the order passed by the Tribunal, the same would constitute mistake apparent from record within the meaning of Section 254(2) of the Act which is amenable to rectification thereon. It is also a fact that the Hon’ble Jurisdictional High Court in the case of Sesa Goa Ltd.[2020 (3) TMI 347 - BOMBAY HIGH COURT] decided the issue raised in the additional ground in favour of the assessee by holding that the education cess would be entitled for deduction as expenditure. Hence, respectfully following the said decision and in view of various other decisions relied upon by the ld. Counsel for the assessee referred to supra, we direct the ld. AO to grant deduction on account of education cess and allow the additional ground raised by the assessee for the A.Y.2007-08 in its entirety. Accordingly, the order passed by this Tribunal in this regard disposing off the additional ground stands modified. Miiscellaneous Application of the assessee for A.Y.2007-08 is allowed.
Non-adjudication of additional grounds as constitute mistake apparent on record warranting rectification u/s.254(2) - additional grounds raised by the assessee on account of claiming deduction of expenditure in respect of Employee Stock Option Plan (ESOP) and deduction in respect of education cess were not at all adjudicated by this Tribunal while disposing off its appeal - HELD THAT:- We find that the additional grounds raised on the aforesaid two issues for A.Y.2008-09 have not been adjudicated by this Tribunal while disposing off the original appeal which is amenable to rectification u/s.254(2) of the Act.
With regard to deduction claimed in respect of education cess, we have already held for the A.Y.2007-08 in this order supra that the assessee would be entitled for deduction in respect of education cess. We direct the ld. AO accordingly to grant deduction for the same for A.Y.2008-09 also.
With regard to deduction claimed in respect of Employee Stock Option Expenditure, since the said issue was not at all adjudicated by the Tribunal, we hereby recall the order passed by this Tribunal for A.Y.2008-09 only for the limited extent of adjudication of this additional ground alone. Miscellaneous Application of the assessee for A.Y.2008-09 is allowed.
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2021 (1) TMI 1252
Constitutional validity of Section 174 Central Goods and Services Tax Act, 2017 - HELD THAT:- The petitioner has been made out ground for granting of interim order. It is ordered that until further orders, payment of service tax for grant of Mining Lease/Royalty shall remain stayed subject to petitioner filing of the undertaking before this Court that in case, if the petitioner did not succeed in the petition, the petitioner would discharge the obligation for payment of service tax on the royalty.
The petitioner has filed seeking dispensation of production of certified copy of Annexure-A, C, D and E - Application disposed off.
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2021 (1) TMI 1251
Benefit of Vivad Se Vishwas Scheme - assessee submit that the assessees have already filed the declaration/undertaking under the Vivad Se Vishwas Scheme on 01.12.2020 and is awaiting orders to be passed in Form No.3. - HELD THAT:- In the light of the subsequent event, the Competent Authority shall process the applications/declaration in accordance with the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of 2020) and pass appropriate orders as expeditiously as possible. The assessees are given liberty to restore these appeals in the event the ultimate decision to be taken on the declaration filed by the assessee under Section 4 of the said Act is not in favour of the assessees. If such a prayer is made, the Registry shall entertain the prayer without insisting upon any application to be filed for condonation of delay in restoration of the appeals and on such request made by the assessees by filing a miscellaneous petition for restoration, the Registry shall place such petition before the appropriate Division Bench for orders.
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9911796707
