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Showing 1 to 20 of 2015 Records
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2019 (7) TMI 2016
Seeking restoration of petition u/s 9 of the Insolvency & Bankruptcy Code, 2016 - Appellant (Corporate Debtor) submitted that the Adjudicating Authority (National Company Law Tribunal) (NCLT), Kolkata Bench has no jurisdiction to recall its earlier order having no power of review or to recall - HELD THAT:- The Adjudicating Authority, Kolkata Bench in exercise of power conferred by Rule 11 of the NCLT Rules, 2016 having restored the petition u/s 9 to its original file, there are no illegality in the impugned order.
In so far hearing of the Appellant Amrit Feeds Limited (Corporate Debtor) is concerned, the petition having restored, the Appellant Amrit Feeds Limited (Corporate Debtor) will be given notice by the Adjudicating Authority before passing any order in the application u/s 9 preferred by S.S. Enterprises(Operational Creditor).
There are no reason to interfere with the impugned order. The appeal is accordingly dismissed.
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2019 (7) TMI 2015
Seeking a direction to the respondent authority to consider his representation dated 29.02.2016 at Annexure-D - direction to respondent Authority to give appropriate and adequate compensation amount as per the provisions of the newly promulgated Act i.e., the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - HELD THAT:- The writ petition is disposed of with a direction to respondent to consider and decide the representation submitted by the petitioner in accordance with law by a speaking order, within a period of two months from the date of receipt of certified copy of the order passed today.
The writ petition is disposed of.
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2019 (7) TMI 2014
Appointment of a sole Arbitrator for adjudicating the disputes - Section 11(6) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The Court while exercising its power under Section 11 of the Act, cannot recast the terms of the Contract and direct the parties to go for a composite arbitration contrary to the procedure prescribed under the arbitration clause provided in distinct arbitration agreements. The overlapping of the issues does not mean that the arbitration proceedings under the two respective contracts cannot commence and continue independently. Fundamental feature of an arbitration agreement is that there is an understanding between the parties to adopt alternate mechanism for the adjudication of the future disputes that arise between them. The law does not prescribe any standard form of arbitration agreement and the parties are free to agree upon a procedure and designate the private forum where the parties would like to go in case the disputes and differences arise between them. Thus, there is to be consensus ad-idem between the parties regarding the choice of the forum.
The Supreme Court in certain judgments, has held that in certain exceptional circumstances the Court has a power to make an appointment of the Arbitrator, notwithstanding the choice of the specified forum agreed between the parties.
Parties were conscious of the terms of the agreement and they willingly and consciously agreed for the arbitral procedure envisaged under the agreement without any reservation. Petitioner is now suggesting that the agreed choice of forum should be ignored and that part of the Agreements should be severed and further Respondent should tow it's line and agree to the Arbitral Tribunal contrary to what has been provided in the Contracts. This cannot be permitted and thus the relief claimed in the present petition for appointment of a common arbitrator cannot be granted.
There is no merit in the present petition and the same is dismissed.
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2019 (7) TMI 2013
Reversal of credit availed on the common input and input services - beat pulp is being cleared by the appellant without payment of central excise duty - Rule 6 of Cenvat Credit Rules - HELD THAT:- The matter is no longer res-integra as it has already been decided by Hon’ble Supreme Court in UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT] that the by-product such as bagasse, press mud, beat pulp does not fall under the category of manufactured product of the appellant and therefore the question of reversal of the Cenvat credit equivalent to 6% of value of such clearances does not arise.
This Tribunal in its final decision in the case of KICHHA SUGAR COMPANY LTD. VERSUS CGST CC & C.E., DEHRADUN [2018 (10) TMI 1151 - CESTAT NEW DELHI] has held Since the main condition for Rule 6 is still, “obligation of a manufacturer or producer of final products”, it doesn’t extend to by- products released during the process of manufacture of main product that too without involvement of any such activity, which may be called as manufacture.
The order-in-original is without any merit and same is set aside. The appeal is accordingly allowed.
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2019 (7) TMI 2012
Dishonour of Cheque - scope and purport of Section 143A of the Negotiable Instruments Act - direction to pay interim compensation to the respondent within a stipulated time - petitioners submitted that the Court below has not given any reason as to why it has directed to accused persons to pay 20% of the cheque amount to the respondent as interim compensation - HELD THAT:- A careful reading of the order passed by the Court below shows that the Court below has focussed more on the issue of the prospective/retrospective operation of the amendment. The Court has not given any reason as to why it is directing the accused persons to pay an interim compensation of 20% to the complainant. As held by this Court, the discretionary power that is vested with the trial Court in ordering for interim compensation must be supported by reasons and unfortunately in this case, it is not supported by reasons. The attempt made by the learned counsel for the respondent to read certain reasons into the order, cannot be done by this Court, since this Court is testing the application of mind of the Court below while passing the impugned order by exercising its discretion and this Court cannot attempt to supplement it with the reasons argued by the learned counsel for the respondent.
This Court took the effort of discussing the effect and purport of Section 143A of the Negotiable Instruments Act, only to ensure that some guidelines are given to the Subordinate Courts, which deals with complaints under Section 138 of the Negotiable Instruments Act, on a regular basis to deal with such petitions effectively and in accordance with law.
The order passed by the Court is hereby set aside. In the result, the Criminal Original Petitions are allowed.
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2019 (7) TMI 2011
CENVAT Credit - appellant has not received the Cenvatable goods but only invoices were procured - HELD THAT:- The department although has obtain statement of Shri Amit Gupta and also the transporter of the goods, who have denied to have supplied the Cenvatable goods to the appellant. The Department has not adduced any evidence regarding compliance of provisions of Section 9D of the Central Excise Act before the statement were admitted evidence. It has been held in the number of cases including ANDAMAN TIMBER INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II [2015 (10) TMI 442 - SUPREME COURT] and SKYRISE OVERSEAS PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS (PORT) [2017 (11) TMI 1012 - CALCUTTA HIGH COURT] wherein it is held that without complying the Section 9D the reliance cannot be placed on such statements - reliance cannot be placed on the statement of these persons. It is on record that appellant has manufactured the excisable goods and cleared them on payment of duty which is not disputed by the Department. The department has not found the other sources of raw material/ inputs procured by the Appellant - thus, it will not be appropriate to hold that the appellant has not procured the goods from the companies belonging to Shri Amit Gupta (other Appellant No.).
The impugned order is not sustainable and is accordingly being set aside - appeal allowed.
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2019 (7) TMI 2010
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- Revenue was under obligation to challenge the order separately in respect of each appeal. In any case and in any view of the matter, it is noted that small amounts are involved in each appeal disposed of by Commissioner (Appeals). The highest amounts involved in one of the appeal is to the extent of Rs.4,87,881/-.
As such, Revenue’s appeal, even if considered as against the said Order-in-Appeal, is barred under litigation policy. As such, Revenue’s appeal rejected under Litigation Policy.
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2019 (7) TMI 2009
Lack of jurisdiction and authority - proceedings initiated under Section 7-A of the Employees Provident Fund and Misc. Provision Act, 1952 - period from which the demand is made extends from 1980 to 1995, while the provisions of the said Act came to be made applicable to cleaning and sweeping workers with effect from 01.04.2001 - HELD THAT:- Conjoint reading of the provisions under Sections 40(1) (b), 113 of the MRTP Act and Notification dated 01-06-1973 shows that CIDCO would be acting as special planning authority and as an agent of the State Government.
It emerges that CIDCO is new town development authority and special planning authority which has constituted provident fund and is declared to be governed by Provident Funds Act, 1952 for benefits of its members and officers and other employees under notification dated 1st June, 1973 reproduced above does show the same and veracity of the same is not disputed - It is easily discernible that CIDCO would be an authority covered by clause (b) of Section 16 of the EPF and MP Act, 1952 referred to above. Sub-section (3) of Section (1) of the EPF and MP Act, 1952 shows that applicability of the Act would be subject to provisions contained in Section 16 and further that it is not the case of the appellant that their case is covered under sub-section of 4 of Section 1 of the EPF and MP Act, 1952.
Having regard to aforesaid, it transpires that CIDCO in present matter as the special planning authority would hardly be said to be governed by the provisions of Employees Provident Fund and Misc. Provisions Act, 1952. In view of the same, it is not found that the Letters Patent Appeal can be entertained on the grounds and the submissions as advanced on behalf of the appellant. Letters Patent Appeal therefore, is dismissed. No order as to costs.
In view of dismissal of the LPA and writ petition, the civil applications do not survive and are disposed of.
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2019 (7) TMI 2008
Classification of goods - Applicable rate of GST - works contract or not - manufacture and supply of submersible pump sets and accessories with installation, electrification and energisation under Ganga Kalyana scheme to Social Welfare departments of Government of Karnataka meant for various beneficiaries (farmers) as notified by the departments - providing guarantee and maintenance of installed submersible pump sets till 2 years which is used for irrigational purposes.
Whether the activity is a composite supply of works contract by way of construction/ erection/ commissioning/ installation/ completion/ fitting out/ maintenance of other irrigation works? - HELD THAT:- In the instant case, the Applicant's supply involves goods i.e. submersible pump sets and the installation etc, of the same as service. Therefore, the Applicant supplies goods as well as services which are taxable supplies. The contractual agreement between the applicant and the said Corporation requires the applicant to supply the pumps and also install and energise the same. The applicant is, therefore, engaged in two taxable supplies, that of goods and also the service of installation. The service of installation is possible only when the goods (submersible pump sets) are supplied and hence the pre-dominant supply is that of "Submersible Pump Sets" and hence the principal supply in this case is supply of goods i.e. Submersible Pump Sets. Therefore the instant supply squarely falls under the definition of "Composite Supply".
Whether the supply of the applicant falls under the "Works Contract" or not? - HELD THAT:- The applicant has obligation to supply, install, electrify & energise the submersible pump sets and thereby makes the pump sets functional. The obligation on the applicant is in relation to the effective installation and functioning of the goods supplied by them. The contract governing their supplies does not relate to building, construction, fabrication etc of any immovable property, as envisaged in the definition of works contract. Their supplies (the submersible pumps) are in the nature of movable property. Hence the said activity is not related to the immovable property at any point of the time and hence the said activity does not qualify to be a "Works Contract" - In the instant case though the supply is a composite one, it is not a works contract as the said supply is not related to the immovable property. This shows that the first requirement of the Notification is not satisfied. The supplies undertaken by the applicant do not qualify to be considered as works contract. As a result the provisions of the Notification No. 11/2017-Central Tax (Rate) dated 28-06-2017, as amended, are not applicable. Since the first condition/requirement is not fulfilled compliance with the second condition/requirement becomes infructuous.
The supplies made by the applicant qualify to be treated as a composite supply. The tax liability on a composite supply is governed by Section 8 of the CGST Act 2017. Accordingly the composite supply comprising two or more supplies, one of which is a principal supply, shall be treated as a supply of such principal supply and the applicable GST rate on the composite supply would be the rate of GST applicable to the principal supply.
The Applicant's supply does not qualify as "Works Contract". It is a composite supply wherein the principal supply is that of the supply of goods i.e submersible pumps. The applicable GST rate to the applicant's supply would be the rate applicable on the Principal supply i.e. submersible pump sets.
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2019 (7) TMI 2007
Clearance of goods to institutional consumers such as builders, infrastructure companies and the goods were marked as not for retail sale - exemption under N/N. 4/2006 dated 01 March, 2006 - Ordinary and Pozzolana Portland Cement - It appeared to Revenue that since the goods were covered by notification issued under Section 4A of Central Excise Act, 1944, the appellants were not entitled to the benefit of said notification - HELD THAT:- The issue is no more res integra and is covered by the decision of this Tribunal in M/S JAYPEE SIKANDRABAD CEMENT GRINDING UNIT VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, NOIDA [2018 (3) TMI 1741 - CESTAT ALLAHABAD] where it was held that The builder and construction companies qualify as institutional/industrial consumers, hence the benefit of the said Notifications would be available to the assessee.
Thus, the appellants during the relevant period of present appeal i.e. from April 2011 to December 2011 were eligible for benefit of said notification - the impugned order set aside - appeal allowed.
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2019 (7) TMI 2006
Maintainability of appeal under Section 53B of the Competition Act, 2002 - Anti-Competition - abuse of dominant position - Proposal for combination - Jurisdiction to order such proposal - Appellant failed to establish locus standi as a person aggrieved by the 'Commission' to prefer the appeal under Section 53B - HELD THAT:- For forming prima facie opinion as to whether the combination is likely to cause, or has caused an appreciable adverse effect on competition within the relevant market in India, the Commission is required only to go through the information given under sub-section (2) of Section 6 therein including the details of combination. For forming such opinion, the Commission is not required to follow the procedure as laid down under Section 29 or Section 30 of the Act.
The violation of Section 4 (i.e. Abuse of dominant position) is completely different than the violation of Section 6(1) (i.e. combination is likely to cause or has caused an appreciable adverse effect on competition), therefore, while passing order under sub-section (2) of Section 6, the Commission cannot hold abuse of dominant position, though it may hold that the combination is likely to cause, or has caused an appreciable adverse effect on competition within the relevant market in India and thereby void in terms of Section 6(1) - In the present case, the Appellant alleges violation of Section 4 and not challenged the order dated 17th September, 2015 passed by the Commission under Section 31 of the Act. Further, as the question of abuse of dominant position will arise only after combination comes into effect in terms of sub-section (2) of Section 6 read with Section 31, the allegation of abuse of dominant position cannot be looked at the stage of approval of combination under Section 31.
The intimation given by the 'Commission' by letter dated 3rd November, 2015 to the Appellant is also not under challenge. The Appellant has also suppressed the aforesaid fact. It is the second time when such intimation given by letter dated 16th June, 2016, the present appeal has been preferred - The intimation given to the Appellant do not fall under any provisions as stipulated under clause (a) of Section 53A, therefore, the appeal under Section 53B preferred by the Appellant is not maintainable.
This Appellate Tribunal can hear and dispose of appeals against any direction issued or decision made or order passed by the 'Commission' under sub-sections (2) and (6) of Section 26, Sections 27, 28, 31, 32, 33, 38, 39, 43, 43A, 44, 45 or Section 46 of the Act - thus, no case has been made out by the Appellant to hold that the combination has appreciable adverse effect on competition in relevant market.
In absence of any merit, the appeal is dismissed.
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2019 (7) TMI 2005
Money Laundering - Provisional attachment - SCN issued to the petitioner, though an order under sub-section 2 of Section 8 of the Act is yet to be passed - HELD THAT:- In a similar situation, a Division Bench of this Court in INDIAN BANK VERSUS THE REGISTRAR/ ADMINISTRATIVE OFFICER ADJUDICATING AUTHORITY (PMLA) , THE DEPUTY DIRECTOR, THE STATE OF TAMILNADU, THE DISTRICT COLLECTOR, THE SUPERINTENDENT OF POLICE, M/S. PRP EXPORTS [2018 (3) TMI 2019 - MADRAS HIGH COURT] where it was held that since the petitioner/Bank has already preferred the Appeal before the Appellate Tribunal, it is open to them to pursue their remedy before the Appellate Tribunal.
There are no requirement to go into the issues raised on facts. Suffice it to state that four more weeks' time from the date of receipt of a copy of this order is granted to the petitioner to give a suitable reply to the show cause notice. On receipt of the same, the adjudicating authority is expected to pass a speaking order on merits and in accordance with law - petition disposed off.
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2019 (7) TMI 2004
Jurisdiction - power of Chairperson, DRAT to take up suo moto proceedings.
It is contended by the respondent that since the settlement had been arrived at between the borrower and the bank without the Presiding Officer having any role to play, the proceedings initiated against him would fall under the rare case where the High Court under Article 226 of the Constitution of India would exercise its jurisdiction, which the learned Single Judge did and there is no infirmity in the same.
HELD THAT:- Perusal of Section 33 shows that the rationale of the protection given under the said Section is in line with the ratio of the judgments referred above. In case a Central Government Officer or a Presiding Officer of the Tribunal or the Chairman of the Appellate Tribunal take any action, which is in good faith, needless to say he cannot be and should not be subjected to any prosecution or legal proceedings. If to hold otherwise, then no court or tribunal would be able to function independently and without any bias or pressures. In the present case the ratio of the above judgments applies with greater vigor as this was the case where by bank had itself entered into a settlement as they were unable to get proper value of the property on auctioning. If two parties to a litigation or a inter se dispute arrive at a settlement, then de hors the fact that the amount in dispute was higher than what is actually settled, the courts have no option but to give effect to the settlement to close the case. In fact, the latest trends of courts have been to settle the matters as far as possible through mediation or otherwise. It would indeed be a travesty of justice if the respondent who only gave effect to a mutual settlement between the parties is charge sheeted for doing his bona fide duty and closing the case solely on the basis of the settlement.
The learned Single Judge has rightly quashed the charge sheet and there are no infirmity in the impugned judgment - application dismissed.
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2019 (7) TMI 2003
Exemption u/s 11 - assessee received corpus contribution from Govt. of India and corpus contribution from SIDBI - charitable activity u/s 2(15) - AO held receipts are liable to be taxed as income u/s 2(24)(iia) of the Act and accordingly passed assessment order u/s 143 (3) - Whether assessee performs charitable activities within the meaning of proviso to section 2(15)? - as per DR the activities of the assessee are akin to those of a mutual association and do not fall within the definition of charitable purposes - HELD THAT:- As decided in assessee own case for the AY 2010-11. [2017 (1) TMI 1145 - ITAT MUMBAI] prescribed in the trust-deed that the Government of India was liable to make up the deficit, if any, incurred in the overall operation of the scheme by providing the necessary budgetary support to the Trust. It is also prescribed in the trust-deed that the entire income arising out of corpus fund shall be spent towards fulfilling the objectives of the Trust and even savings effected in any year were to be transferred to the corpus fund to be spent towards fulfilling the objectives of the Trust. The trust- deed also prescribes the manner in which the scheme is to be implemented and it also provides for a Board of Trustees, whereby the Chairman & Managing Director of SIDBI is to be its Ex- officio Chairman and other members being drawn from the officials of the Government of India. The Management and administrative affairs of the Trust are under the overall supervision and superintendence of the Board of Trustees.
Thus object and purpose of the Trust is focussed on small scale industries and micro enterprises and is not available to entrepreneurs at large. Apart there-from, it is also prescribed in the scheme operationalized by the Trust that the benefits are to be made available only to credit facilities aggregating upto Rs.10.00 lacs sanctioned and disbursed by the lending institutions.
Therefore, considering the focused area of the Trust, it could not be inferred that there is any profit motive so as to view the activities to be 'trade, commerce or business as understood for the purposes of proviso to section 2(15) of the Act. Therefore, in our considered opinion, on facts, it is not possible to infer that assessee Trust is carrying on any regular 'trade, commerce or business' and on the contrary it is an entity which is essentially existing for charitable purposes but conducting some activities for consideration or fee. In this background, the proviso to section 2(15) of the Act cannot be invoked to exclude assessee Trust from the purview of section 2(15) of the Act since the said proviso only seeks to exclude institutions which are carrying on regular business cannot be invoked to exclude assessee Trust from the purview of section 2(15) of the Act since the said proviso only seeks to exclude institutions which are carrying on regular business - Decided in favour of assessee.
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2019 (7) TMI 2002
Deduction u/s 80IA - losses of eligible unit of years earlier to the initial year opted - HELD THAT:- As decided in own case A.Y. 2012-13 and also the decision of Velayudhaswamy Spinning Mills (P) Ltd. [2010 (3) TMI 860 - MADRAS HIGH COURT] as held that the claim of the appellant for deduction is well within the spirit of the law and accordingly hereby direct the AO to allow the claim for deduction made by the appellant company U/s.80IA(4) - Decided in favour of assessee.
Disallowance u/s 14A r.w.r.8D - Sufficiency of own funds - AO had noted that the assessee has claimed interest expenses which includes general interest remaining interest / bank interest considered as directly related to the export / import and assessee did not make any disallowance u/s.14A - HELD THAT:- We find from the order that the ld.CIT(A) that the assessee is having a owned funds to the extent of 436 crores as on 31.03.2013 investments made by the assessee to generate the exempt income only to the extent of 8.05 crores. Therefore, the ld.CIT(A) reasonable presumed that assessee has invested only own funds no borrowed funds. By considering the facts and circumstances of the case, we find that there is no error passed in the order passed by ld.CIT(A), in deleting addition - Decided in favour of assessee.
Disallowance of commission in respect of turnover of earlier years - assessee has explained before the Assessing Officer that the commission expenditure accounted for as and when debit note is raised by the broker - HELD THAT:- On appeal, the ld.CIT(A) gave a finding that the expenses incurred by the AO is not doubted by the AO and only case of the AO is that these expenses relates to earlier years not related to current year. We find that the ld.CIT(A) after considering the detailed explanation given by the assessee and also observations made by the Assessing Officer gave a find that these expenses are genuine and has to allowed even in current year also. We find no reason to interfere with the order passed by the ld.CIT(A), therefore this ground raised by the Revenue is dismissed.
Disallowance of welfare expenses - AO noted that the assessee has not fully vouched and some of the expenses were supported by the handmade vouchers not having complete address and names of the recipient - CIT(A) restricted the disallowance to 50% - HELD THAT:- As CIT(A) partly granted the relief to the assessee, we find no reason to interfere with the orders of passed by the ld.CIT(A), therefore this ground of appeal raised by the Revenue is dismissed.
Allowability of expenses related to conveyance and traveling, motor car expenses, telephone expenses, membership fee expenses - CIT(A) restricted from 15% to 10% granted relief to the assessee - HELD THAT:- We find that the relief granted by the ld.CIT(A) by restricting disallowance from 15 % to 10% is reasonable and justified and no interference is called for. Therefore, ground raised by the Revenue is dismissed.
Allowable business expenditure - Interest paid on delayed payment of service tax is in penal nature - HELD THAT:- We find that the expenditure incurred to the assessee during the course of the business and therefore which has to allowed as a business expenditure. In view of the above, we find no reason to interfere with the orders passed by the ld.CIT(A), therefore ground raised by the Revenue is dismissed.
Disallowance of staff welfare expenses - HELD THAT:- CIT(A) by considering the entire business carried by the assessee and also by considering the nature of the expenses and also considering the expenses incurred in various places restricted the allowance to 50% granted - We find that no reason to interfere with the order passed by the ld.CIT(A).
Disallowance on account of office expenses - HELD THAT:- We find that the claim of the assessee is that he had incurred office expenses in respect of three office at Surat, Delhi and Mumbai and four divisions of factories. Most expenses incurred by the assessee has submitted by the ld.Counsel for the assessee incurred by the cheque whenever payment made by cash, the same is supported by the vouchers. The ld.CIT(A) by considering all the facts and examine the details he has restricted the disallowance we find no reason to interfere with the order passed by the ld.CIT(A), therefore ground raised by the Revenue is dismissed.
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2019 (7) TMI 2001
Interpretation of Rule 11(3) of Cenvat Credit Rules, 2004 - interface with Notification No. 30/2004 dated 09.07.2004 - HELD THAT:- Recently, a Division Bench of this Court in the case of UNION OF INDIA VERSUS KANCHAN INDIA LIMITED. [2019 (7) TMI 1583 - RAJASTHAN HIGH COURT] had interpreted Rule 11(3) of Cenvat Credit Rules, 2004 and thereafter interface with Notification No. 30/2004 dated 09.07.2004 and held in favour of the assessee.
Appeal dismissed.
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2019 (7) TMI 2000
TDS u/s 194H - amount retained by the banks/credit card agencies for rendering credit card processing service - HELD THAT:- It’s not the case of the Revenue that the decision of JDS Apparels [2014 (11) TMI 732 - DELHI HIGH COURT] wherein held Section 194H would not be attracted has no obligation to the facts of the case.
When there is no relationship of principal between the assessee and the banks and the bank has no obligation to deduct TDS in respect of the amounts retained by the banks towards the service charges. We, therefore, while accepting the contention of the assessee upheld the order passed by the ld. CIT(A) and dismiss the appeal of the Revenue.
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2019 (7) TMI 1999
TP Adjustment - PLI of the assessee as determined by the TPO is 6.01% against the PLI of 8.90% of the comparables - HELD THAT:- On the facts relating to the PLI of the assessee, the TPO/Assessing Officer erroneously considered the PLI figure of 3.87% instead of 6.01%. This errors gave rise to the TP adjustment of Rs. 4,94,95,000/-. If the figure of 3.87% is considered, there shall be no TP adjustment warranted in view of the benefits of +/-5%.
Assessee submitted that this fact can be verified at the level of the AO/TPO.
Considering the said factual position and subject to the verification of these claims of the assessee by the Assessing Officer, the figure of 6.01% should be taken as PLI of the assessee at the entity level. In that case, no adjustments are required in view of the facts that the average of PLI of the comparables qua the assessee’s profits margin, fall within the range of +/-5% of the ALP. TPO/Assessing Officer is directed to verify the above figures of PLI of the assessee after giving opportunity to the assessee as per the settled principles of natural justice.
Prior period expenses - treating the rebate allowed to a customer as prior period expense and thereby disallowing the same - HELD THAT:- As evident that the relevant sales took place and duly accounted in the books in the assessment year 2005-06 and the assessee made an adjustment by way of rebate to the same in the current assessment year 2006-07. The income-tax authorities disallowed the claim of rebate in sales for want of the evidences leading to the grant of such rebate in sales and booking the same in the year under consideration. The assessee could not improve his case even before us.
Considering the same, we are of the opinion, the order of the DRP and the AO is fair and reasonable on this issue and it does not call for any interference. Accordingly, the relevant ground relates to the corporate addition is dismissed.
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2019 (7) TMI 1998
Seeking rectification of mistake - error apparent on the face of record - scope for reliance on value of contemporaneous imports - extended period of limitation - HELD THAT:- It was admitted by the Learned Counsel that the decision pertaining to adoption of contemporaneous price has been cited. Even though the decisions may not have been referred to, the scope for invoking of rule 5 of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 has been dealt with in the fifth paragraph of the said order. Moreover, with the introduction of rule 10A in the said Rules, the consequence thereof stand substantially altered from those under the pre-amended rules. By invoking of rule 10A of the said Rules, assessing authority/value determining authority is required to carry the process of re-valuation through to its logical conclusion by sequential application of the several rules - In the absence of any counter to the invoking of rule 10A of the said Rules, the consequence thereof can be disputed only by bringing on record any specific details that may have a bearing on the adjustment for arriving at the assessable value. No such evidence was presented during the hearing and neither is any such averment.
Redemption fine was set aside by placing reliance upon the decision in COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS FINESSE CREATION INC. [2009 (8) TMI 115 - BOMBAY HIGH COURT]. The mis-declaration, referred to in the eighth paragraph of the said order, pertains to the entries made at the time of import and, therefore, held that confiscation was not warranted. The elements prescribed for invoking the extended period are entirely different and the submissions made on behalf of the appellant during the course of the hearing did not persuade that ingredients were not lacking. This has been amplified sufficiently in order.
While sustaining the invoking of the extended period for the purpose of confirmation of the duty liability, the penal detriments were set aside - the application is rejected.
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2019 (7) TMI 1997
Reopening of assessment u/s 147 - Correct Assessment Year - assessee alleging that the A.O. has recorded the reasons to believe that the income of the assessee has escaped assessment for assessment year 2014-15, whereas on the basis of said reasons recorded, the assessment for the year under consideration i.e. assessment year 2010-11 has been reopened - HELD THAT:- We find that in the Performa, which was sent by the A.O. to the Principal Chief Commissioner of Income Tax, Panchkula seeking permission to issue notice u/s 148 of the Act to the assessee, assessment year has been mentioned “assessment year 2010-11”.
A.O. recorded the reasons second time on 28.10.2015 wherein though in the title the assessment year has been mentioned as “assessment year 2014-15”, however, from the reading of the entire document it is apparent that the A.O. has mentioned the assessment year 2010-11. The mention of the assessment year 2014-15 in the title, in our view, is a clerical mistake. Moreover, the Ld. DR has also invited our attention to the copy of the order sheet entry dated 15.12.2015 to show that the copy of the reasons recorded was duly supplied to the assessee. Even the assessee has also placed on record the copy of the application dated 11.12.2015 moved by the Chartered Accountant of the assessee to supply the copy of reasons recorded, which were duly supplied to the assessee.
Whether assessment reopened after the expiry of four years from the end of the relevant assessment year and that there was no failure on the part of the assessee to disclose fully and truly all material facts? - A perusal of the reasons recorded by the A.O. reveals that the A.O. has disputed eligibility of the assessee to claim deduction u/s 35AD of the Act. During the assessment proceedings for assessment year 2012-13, the A.O. noticed that the assessee had claimed deduction u/s 35AD of the Act while the assessee had been running its business for so many years.
A.O. was of the view that the deduction u/s 35AD of the Act could be allowed only for prior period of commencement of the specified business.
There is no allegation that the assessee had not fully and truly disclosed all the material facts for making the assessment. The assessee had claimed deduction u/s 35AD of the Act disclosing all the particulars. It is only of the interpretation of the relevant provisions of section, on the basis of which, A.O. formed the opinion during assessment proceedings for assessment year 2012-13 that the deduction to the assessee u/s 35AD of the Act was wrongly allowed for the assessment year under consideration. However so far as the assessee is concerned, the assessee on its part had disclosed fully and truly all the material facts necessary for its assessment.
The case is squarely hit by the 1st proviso to section 147 of the Act since the reopening in this case since has been made after the expiry of four years from the end of the relevant assessment year. In view of our above observations, this ground of appeal of the assessee is allowed and reopening of assessment is set aside and the consequential assessment made is quashed.
Deduction u/s 35AD - as per AO as assessee had existing business of warehousing and hence, it could not be said that the assessee had commenced the business of warehousing during the year under consideration, therefore, disallowed the deduction - As decided in assessee own case [2019 (3) TMI 2037 - ITAT CHANDIGARH] an assessee is eligible to claim deduction of the capital expenditure if such an expenditure has been incurred wholly and exclusively in a specified business. There is no condition of any date or year of commencement of specified business.
In the second part, it has been provided that if such an expenditure has been incurred prior to the commencement of business and has been duly capitalized in the books of account, the claim will be allowed in the year in which the assessee commences operations of his specified business. There is neither any overlapping nor any contradiction in the aforesaid provision. The assessee is covered in the first part i.e. the assessee has incurred the expenditure on the specified business during the year in which operations of his business of warehousing were already going on. We do not find any justification on the part of the lower authorities in denying the deduction to the assessee u/s 35AD - Decided in favour of assessee.
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