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Case Laws
Showing 21 to 40 of 2019 Records
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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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2019 (7) TMI 1996
Addition u/s.68 for unsecured loans taken - HELD THAT:- The assessee has discharged the onus of proving the creditors and the Revenue did not make required enquiries. The balance sheet and the business affairs clearly prove the financial capability of the lenders - As decided in the case of Vaibhav Cotton Pvt. Ltd. [2012 (8) TMI 1129 - MADHYA PRADESH HIGH COURT] held that where the Tribunal on its independent analysis of the matter had reached the factual conclusion about genuineness of unsecured loan transaction and in this process Tribunal has taken note of fact that detailed account of concerned party were filed by the assessee and entries in account were through account payee cheques, source of deposit in the bank was not in dispute and identity of the parties was established and also creditworthiness of the creditors was established, it was right to hold that the loans taken cannot be assessed u/s 68 of the Act. Hence we hereby delete the addition made on account of loans received by the assessee.
Revenue has invoked the provisions of Section 115BBE - We find that the section has been amended w.e.f. 01.04.2017 which is prospective and hence not applicable to the year in question before us. Since, the additions have been deleted the applicability of the section to the case would be superfluous.
Appeal of the Revenue is dismissed.
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2019 (7) TMI 1995
Disallowance u/s 40A(3) towards payments made in cash exceeding ₹.20,000/- - purchase of raw skins from various suppliers - AO held that the assessee had not made any direct purchases from the butchers but had purchased from other established traders and therefore did not accept the assessee’s claim of exemption under Rule 6DD(f) and also rejected the claim of exemption under Rule 6DD which exempts payments made to agents on behalf of the buyers for the reason that the said parties from whom the assessee purchased were not agents, but were traders themselves - HELD THAT:- The remand report of AO was received by the CIT(A) on 02.08.2018, wherein, we find that the AO has reiterated what was available in the assessment order and nothing more than that after retention of the additional evidences, surprisingly, for nearly eight years and the reason for that may be best known to him.
On perusal of the remand report, as reproduced in the appellate order, the only contention of AO is that the suppliers from whom the assessee had purchased hides and they are not butchers. Even though it was purchased from those suppliers, those suppliers would have purchased from the butchers only and there is no other go and nothing is prevented the supplier to function as an agent for supplying the hides to the assessee.
Generally, the suppliers/ exporters of finished leather purchase the raw material from the butchers on cash basis and to safeguard them, the Legislature intended to make a provision under Rule 6DD(k) that “where the payment is made by any person to his agent who is required to make payment in cash for goods or services on behalf of such person”. There is no hard and fast rule that the agent should not be a supplier. In view of the above facts, we delete the addition made u/s 40A(3) of the Act. Appeal filed by the assessee is allowed.
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2019 (7) TMI 1994
Maintainability of petition - initiation of CIRP - Corporate Debtor - Approval of Resolution plan without complying the mandatory provisions of the ‘I&B Code’ - it was held by NCLAT that Admittedly, the ‘Corporate Debtor’ is a ‘MSME’ and the promoters are not ineligible in terms of Section 29A of the ‘I&B Code’. Therefore, it is not necessary for the ‘Committee of Creditors’ to find out whether the ‘Resolution Applicant’ is ineligible in terms of Section 29A or not.
HELD THAT:- No case is made out so as to interfere with the impugned order passed by the Tribunal. The appeal is, accordingly, dismissed.
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2019 (7) TMI 1993
Calculation of interest on refund claim - relevant date - HELD THAT:- The Respondent has no explanation to offer for the failure by the DT&T to comply with the legal requirements as mandated by this Court. In IIJM CORPORATION BERHAD, M.V. OMNI PROJECTS (INDIA) LTD., DAIMLER FINANCIAL SERVICES (P) LTD., & FEMC- PRATIBHA JOINT VENTURE VERSUS COMMISSIONER OF TRADE & TAXES [2017 (11) TMI 1298 - DELHI HIGH COURT] this Court held The assessee would be liable to pay tax under· sub-section (4) to section 3 if net tax is payable. In case of refund, obviously the assessee is not liable to pay tax. Obligation of the assessee to pay tax and date when tax is payable, and the duty and date on which refund is payable by the Revenue need not coincide and could be different as per the statute.
With the law being clear, there can be no possible excuse for the Respondent not paying interest to the Petitioner on the refund amount from 21st July, 2015. The differential interest will now be credited to the account of the Petitioner on or before 31st August, 2019 failing which the Respondent will additionally pay compensation of Rs. 50,000/- to the Petitioner within two weeks thereafter.
Petition disposed off.
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2019 (7) TMI 1992
TP adjustment for payment of royalty - trademark royalty paid to Cadbury Schweppes Overseas Limited[CSOL] Assessee is a listed company engaged in manufacturing and marketing of malted food and drinks and chocolates - Cadbury India had entered into Technical Assistance and Royalty Agreement with AE M/s. CSOL for availing itself of the benefits of the said technical know-how developed by CSOL relating to the manufacturing, processing, distributing and marketing of products as well as the benefits of the continuing research and development undertaken by CSOL - HELD THAT:- It transpires that this issue was earlier remitted by the Tribunal to the TPO. However, learned Counsel of the assessee submitted that in the last year there was issue of fresh documents. He submitted that this year all documents are there. He submitted that the TPO has held that arm's length price should be nil without applying any material. Learned counsel claimed that the TPO has held that no benefit accrues to the assessee. Learned counsel referred to several case laws for the proposition that benefit test is not for TPO.
As we note that this Tribunal in assessee's own case for A.Y. 2006-07 [2018 (11) TMI 1762 - ITAT MUMBAI] hold that the royalty payment on trade mark to SCOL @ 1% of net sales is at arm's length, hence, no further adjustment is required. Accordingly, we delete the disallowance made by the Assessing Officer.
We note that the AO as well as learned CIT(A) have also based their decision on their earlier orders. Since ITAT has considered those orders and remitted the issue to the file of the Assessing Officer, we deem it appropriate to follow the precedent and set aside the issue to the file of the Assessing Officer. The Assessing Officer is directed to consider the issue afresh keeping in mind additional submissions being made by learned counsel.
Disallowance of payment of royalty on technology paid to Cadbury Adams USA LLC. - HELD THAT:- As decided in own case A.Y. 2006-07 [2018 (11) TMI 1762 - ITAT MUMBAI] assessee has also availed technical know-how from CAUSA. Further, the Departmental Authorities don dispute the genuineness or authenticity of the amended agreement. What they are disputing is the date from which the amended agreement is effective. If the departmental authorities in the subsequent assessment years have allowed payment of royalty both for trademark and technical know-how, there is no reason why it should not be allowed in the impugned assessment year, since, it cannot be said that the assessee was manufacturing 'Halls' brand products without obtaining the required technical know-how. Accordingly, we hold that payment of royalty to CAUSA is at arm's length. The ground is allowed.
Disallowance of service fees paid to Cadbury Schweppes Asia Pacific Pte. Limited. - HELD THAT:- As on careful consideration we find that learned CIT(A) in this case has followed his earlier order of previous assessment year. It was this order of learned CIT(A) which was remitted by the ITAT to the file of the TPO for examination with direction. In these circumstances in our considered opinion the issue needs to be remitted to the TPO with the same directions as above. We order accordingly.
Disallowance of depreciation on marketing know-how in pursuance of worldwide stock and asset purchase agreement between Pfizer US and Cadbury UK. - HELD THAT:- Tribunal in assessee's own case for A.Y. 2006-07 [2018 (11) TMI 1762 - ITAT MUMBAI] has decided this issue and allowed the claim of the assessee following the consistent view of the Tribunal on this issue in assessee's own case in the preceding assessment years, we allow assessee's claim of depreciation
Determining profits eligible for deduction u/s 80-IC - Allocation of expenditure at Baddi unit - HELD THAT:- We agree with the submissions of the learned counsel of the assessee, as regards allocation of interest, voluntary retirement scheme and decrease in stock. As agreed by learned counsel above the fact that no VRS expenditure pertains to the employees of Baddi unit may be checked by the Assessing Officer.
As regards operation/establishment expenses, we find considerable cogency in the allocation key used by the assessee for direct expenses, direct marketing cost and selling and distribution expenditure, royalty and technical fees. We approve the same subject to factual verification by the Assessing Officer. We find that the method of allocation of other overhead as mentioned above appears to be opaque. We remit the same to the Assessing Officer for verification.
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2019 (7) TMI 1991
Inordinate delay in conclusion of proceedings - Impugned order passed after a lapse of 15 years - HELD THAT:- A dealer is required to statutorily maintain and preserve books of accounts and all documents connected and ancillary to its business only for a period of five years from the date on which the assessment relating to that year had become final.
In the present case, the periods of assessment stretch from 1989-1990 to 1994-1995. The pre-assessment notices have been sent only on 23.08.1999 and proceedings completed in 2015. Thus even on this score, the time taken for conclusion of proceedings appears inordinately delayed and is thus unacceptable. The impugned orders are quashed.
Petition allowed.
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2019 (7) TMI 1990
Restoration of possession of land - time limitation - failure to prove that the suit land was Inam land or the plaintiffs are Inamdars - HELD THAT:- Nothing has been brought on record to show that prior to 29.01.1973 the land was entered in the name of the Trust. In fact, as per the pleadings of the defendants a change report had been filed before the Assistant Charity Commissioner, Latur and the said authority, without issuing notices to the Inamdars/Mutawalis, allowed the said application on 29.01.1973. The plaintiffs had no knowledge of this application but on the basis of this order the Government handed over the possession of the land to the Trust. It was only after the Trust came into the possession of the land that the mutation entry (Exhibit No. 115) was made in favour of the Trust.
In a suit filed for possession based on title the Plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. However, the main relief is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963. This Article deals with a suit for possession of immovable property or any interest therein based on title and the limitation is 12 years from the date when possession of the land becomes adverse to the plaintiff - In the instant case, even if the case of the defendants is taken at the highest, the possession of the defendants became adverse to the plaintiffs only on 19.08.1978 when possession was handed over to the defendants. Therefore, there is no merit in this contention of the Appellants.
No application was filed Under Order XLI Rule 27 of the Code of Civil Procedure, 1908 for leading additional evidence before the first appellate court or even before the High Court. Even the applications filed do not set out any reasons for not filing these documents earlier and do not meet the requirements of Order XLI Rule 27 of the Code of Civil Procedure. Hence, the applications are rejected and the documents cannot be taken into consideration.
Appeal dismissed.
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2019 (7) TMI 1989
Validity of Arbitral Award - contract entered between the parties - appellant herein raised number of objections and the court below mechanically dismissed them holding that it cannot sit in appeal over the award and objections under Section 34 came to be rejected on the cryptic unreasoned order - HELD THAT:- On the contours of Arbitration Act, 1996, it cannot be said that the proceedings were under the old Act of 1940 and, therefore, interest rate which has been granted should not have been 18%. It is submitted by Sri Tandon for the respondents that the statutory rate of interest should be 1 or 2 per cent higher or lower than the bank rate.
While going through the record and the award it appears that while considering the claim of the contractor, the arbitrator was himself a engineer was taken pain to look into the amount which could be granted and which could be discarded - The contractor was subjected to filing of suit for appointment of arbitrator which was also vehemently opposed on the ground that it was a unregistered firm. It was only after intervention of the Court that arbitration proceedings continued. Though the arbitrator was appointed by concess objections were raised to contend that he had committed misconduct as he was a engineer with the State.
As far as the rate of interest is concerned, the arbitral award and the order of the Court below shall stand modified to the extent that the rate of interest shall be 9% and not 18% as ordered by arbitrator.
The appeal is partly allowed.
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2019 (7) TMI 1988
Continuation of suspension of petitioner - particulars of the case not produced - HELD THAT:- The petitioner has held back the particulars of the case registered against him by the CBI, and particulars of the case made out against him under the PMLA. In all fairness, he should have disclosed all the relevant facts, since they are most material and pertinent to assess the petitioner’s grievance.
No doubt, in the present case, the charge sheet – either in the criminal case, or for holding the departmental enquiry against the petitioner has not been issued till date. Investigation is still underway by the CBI - Similarly, the fact that the investigation is underway under the PMLA, could also not have been ignored by the Government. These are serious and valid considerations to justify the continued suspension of the petitioner.
In STATE OF TAMIL NADU VERSUS PROMOD KUMAR AND ORS. [2018 (8) TMI 2120 - SUPREME COURT], the Supreme Court, while referring to AJAY KUMAR CHOUDHARY VERSUS UNION OF INDIA THROUGH ITS SECRETARY & ANR. [2015 (6) TMI 592 - SUPREME COURT], wherein the Supreme Court had frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration, eventually held that the suspension of the respondent in that case would not serve any useful purpose, on the basis of the material on record of that case. The same cannot be said in the facts of the present case considering the fact that the investigation under the Prevention of Corruption Act, and the IPC is underway by the CBI, and by the Appropriate Authority under the PMLA.
The petitioner is a senior, highly ranked government officer and was occupying a high position at the time of his suspension. He was in a position to influence witnesses and tamper with the evidence. He has been released on bail. Pertinently, the petitioner has also not placed, the order passed by the Court granting him bail which may have, if produced, thrown light on the allegations against the petitioner. Considering all these aspects as well, it is not satisfying that the suspension of the petitioner should not have been continued in the present case.
There are no merits in the impugned order - petition dismissed.
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2019 (7) TMI 1987
Provisional release of confiscated goods - Benefit of Notification No. 84/97-Cus.dated 11.11.97 as amended which were assessed provisionally and the assessment should not be finalized accordingly - manner in which the project implementing authority certificate, which is the basis for claiming and allowing the benefit of exemption, has been countersigned - recovery of Customs Duty alongwith interest and penalty - HELD THAT:- Investigations conducted by DRI, establish beyond an iota of doubt that the signatures on the certificates submitted by the importer at the time of importation were forged. The Commissioner found these signatures as forged and has proceeded against the importers and all others concerned with importation - there is no dispute about the finding recorded by the Commissioner that the certificates produced before the Customs Authority for clearance of the goods at time of importation were having counter signatures which were forged.
From the wording of the Notification, it is abundantly clear that the Joint Secretary, countersigning the certificate certifies the same thing which has been stated by the executive head. The certificate produced, continues to be the one which has been given by the executive head of Project Implementing Authority. Hence even after countersignature by the Joint Secretary, it cannot be said to be the certificate issued by him, but is only certifying the authenticity of the certificate issued.
Penalty - HELD THAT:- Appellant 2 had acted under a bonafide belief, and the charge of negligence cannot be upheld this decision of tribunal cannot be applied to the facts of present case. Thus, the penalty imposed on Appellant 2 under Section 112 (a) cannot be sustained.
The appeals filed by Appellant 1 and Appellant 2 against the impugned order allowed.
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2019 (7) TMI 1986
Approval of Resolution plan - Maintainability of petition - winding-up petition against the Corporate Debtor is already pending before the Hon’ble High Court of Bombay, Nagpur Bench - Approval sought for closure of two units and revival of only one unit - HELD THAT:- This Company Petition No. 66/2017 is maintainable as no order of liquidation was passed, and only a Provisional Liquidator was appointed. Therefore, MA No. 105/2018 has been filed by Primo Pick N Pack Private Limited [2018 (11) TMI 559 - BOMBAY HIGH COURT] is rejected, keeping in view the order passed by the Hon’ble Bombay High Court in Jotun India Private Limited v PSL Limited [APPEAL LODGING NO. 68 OF 2018], ORDER DATED 26.07.2018 [2018 (7) TMI 1741 - BOMBAY HIGH COURT] to state that pendency of a winding up petition before the Hon’ble High Court cannot be a ground to reject any claim/ application made under IBC.
As far as MA 689/2017 for approval of Resolution Plan u/s 30(6), IBC read with Regulation 39(4) of CIRP Regulations for approval of the resolution plan submitted by Dalmia, is concerned, it is understood that the plan has been approved by 100% vote share of the Committee of Creditors in the 11th CoC meeting held on 20.12.2017.
With due regard to the decision of the Hon’ble Supreme Court in K Sashidhar & Indian Overseas Bank &Ors.[Civil Appeal No. 10673/2018], Date of order: 05.02.2019, [2019 (2) TMI 1043 - SUPREME COURT] the role of COC now is quite vital for deciding the fate of the company. It has been held that the Adjudicating authority is not required to go into the merits or reasoning of the decision taken by the COC for approval or rejection of a resolution plan. The only benchmark which is set up to be determined by the AA is to see whether the plan has been approved by 66% voting of the COC or not. Therefore, the commercial wisdom is not allowed to be interfered with.
In this case, it is seen that the Resolution Plan provides for a total payment of ₹401,62,00,000/-, as against the liquidation value of the Corporate Debtor which is ₹231,10,00,000/-. Hence, one of the justifications for approval of the Resolution Plan is that the Liquidation Value is less comparing the proposals made in the Resolution Plan - It is noticed that despite the liquidation value payable to Operational Creditors being nil, the plan provides for payment of statutory dues and the liability towards the statutory dues is not extinguished.
The Resolution Applicant wishes to run this business by reviving the cement undertaking as a going concern and selling the paper and solvent extraction units of the business - If the CoC is of the view that the Corporate Debtor is capable of being revived by reopening only one unit and the plan being approved by 100% CoC, it is presumed that sale of the two units of the Corporate Debtor is also a part of the commercial wisdom exercised by the CoC. Therefore, the same need not be interfered.
On perusal of the resolution plan submitted by the Resolution Applicant Dalmia Cement (Bharat) Ltd, the bench has observed that the Resolution Plan does not discuss the “Source of Funds” of the Resolution Applicant and the same was submitted by the RP for Approval of the Bench. As per the Resolution Plan, clause 2.2.2 under the head “Source of Funds”, it is stated that “Resolution Applicant Commitment or by the Resolution Applicant”. It is quite strange that even the CoC and RP have approved the Resolution Plan without ensuring whether the funds are coming from the reserve and surplus, internal accruals of the Resolution Applicant or Loans from the Bank etc.
Suggestions to the Government - Any haircut of more than 25% in cases where the total outstanding is more than Rs. 500 crores is not an ordinary course of business and shareholders who are the ultimate owners of the Financial Creditors and without their approval would undermine their ultimate rights as Shareholders and corporate democracy - May be, to begin with, approval of shareholders of Resolution Applicant, which is a listed Company can be made compulsory when the Resolution Plan consideration is more than Rs. 500 Crores and approval of Shareholders in other cases, i.e. Public Ltd Company/Private Ltd. The company, approval of shareholders may be made compulsory irrespective of the plan amount.
Since certain modifications to the Resolution Plan, it further requires the acceptance by the Resolution Applicant. Therefore Resolution Professional is directed for seeking acceptance from the Resolution Applicant regarding proposed modifications - The acceptance report of the Resolution Applicant is to be filed by 12.07.2019. If acceptance of the proposed modification in the resolution plan is not submitted, then we shall proceed with the liquidation.
List on 12.07.2019 for filing additional affidavit of Resoution applicant regarding accepetence of the modifications in the Resolution Plan.
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2019 (7) TMI 1985
CENVAT Credit - input services - designing and script writing of brochure and product catalogue and hotel / mandap keeper services - HELD THAT:- The issue relates to the admissibility of cenvat credit in respect of designing and script writing of brochure & product catalogue and mandap keeper, the very same services have been considered by this Tribunal in the appellant’s own case GMM PFAUDLER LIMITED VERSUS CCE & C. ANAND (S) [2017 (10) TMI 1638 - CESTAT AHMEDABAD], where it was held that both the lower authorities have not considered the provisions of definition of “Input Services” as per Rule 2 (l) of CCR, 2004 in its correct perspective. Similar issue of availment of Cenvat on the Design Services and Accommodation Services was considered by Tribunal Bench in the case of M/s. Dr. Reddy’s Laboratories Ltd. Vs. CE & ST Hyderabad - IV [2016 (11) TMI 858 - CESTAT HYDERABAD] and held in the favour of the assesses.
From the above decision of this Tribunal, it can be seen that the very same services have been considered and cenvat credit was allowed.
Appeal allowed.
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2019 (7) TMI 1984
Implementation of Resolution Plan - revival of Corporate Debtor - incentives granted to the Corporate Debtor under the Package Schemes of Incentives, 2007 - HELD THAT:- It is noted that major value of the Corporate Debtor lies in the licenses and incentives granted to it by various Government Authorities under incentive schemes or otherwise. The purpose of the Insolvency and Bankruptcy Code, 2016 is a revival of the Corporate Debtor and maximisation of value of assets of the Corporate Debtor. If the reliefs sought in the successful resolution plan are not granted, then the plan would be rendered unviable that would ultimately result in the liquidation of the Corporate Debtor.
The information provided by the Resolution Applicant satisfies about its capability to implement the Resolution Plan and the information sought in paragraph 76 and 78 of our order dated 03.07.2019 is held as duly provided by the Resolution Applicant vide its Additional Affidavit - the Successful Resolution Applicant directed to file its acceptance report accepting the modification in the Resolution Plan made by this Tribunal by 12.07.2019.
The Resolution Plan submitted by the Resolution Professional of the Corporate Debtor for approval of this Tribunal under section 31 of the Insolvency and Bankruptcy Code, 2016 is approved.
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2019 (7) TMI 1983
Disallowance u/s 14A - as per Revenue he could disallow the expenditure even there is no income i.e., dividend by taking recourse to Rule 8D - as decided by HC there is no dispute that no income i.e., dividend, which did not form part of total income of the Assessee was earned in the relevant assessment year and the addition made by by relying upon Section 14 A was completely contrary to the provisions of the said Section.
HELD THAT:- There is delay of 324 days in filing the Review Petition for which no satisfactory explanation has been given. Even otherwise, we do not find any merit in the Review Petition. The Review Petition is dismissed on the ground of delay as well as merits.
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2019 (7) TMI 1982
Dishonour of Cheque - insufficient funds - discharge of legally enforceable debt or not - rebuttal of presumption u/s 139 of NI Act - HELD THAT:- In the present case, signature on the cheque is not denied by the applicant, due to which presumption shall be raised that cheque was issued in discharge of any debt or liability, however, complainant claims that he advanced loan amount of Rs.2.20 Lacs to the applicant. According to the complainant, he is working a recovery agent in State Bank of India. In his cross-examination, he accepted that he got Rs. 5,000/- per month as salary and now he is getting Rs.8,000/- per month. He also admitted that he is not income-tax payee. Therefore, it is clear that at the time of transaction, the complainant was not having financial capacity to lending amount of Rs.2.20 Lacs to the applicant, hence, the complainant has failed to prove that he was having financial capacity to lend Rs. 2.20 lacs as loan amount to the applicant and the applicant/accused successfully rebutted the presumption under Section 139 of the Negotiable Instruments Act, 1881 and has raised probable defence.
This Court is of the considered view that the courts' below have committed error in holding that the applicant has issued the cheque in question for discharge of any legal debt or liability - the impugned judgments passed by the Courts below are hereby set aside - revision petition allowed.
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2019 (7) TMI 1981
Assessment u/s 153C - Unexplained deposit u/s. 68 - HELD THAT:- While dealing with the addition the Assessing Officer has mentioned that addition u/s. 68 was done on examination of balance-sheet. Similar is the position of addition of commission income. There is no whisper in the assessment order that any incriminating material was seized in respect of addition which has been done.
It is clear that search was conducted and assessment year involved A.Y. 2010-11 was not abated assessment. Hence on the touchstone in the case of Continental Warehousing Corporation [2015 (5) TMI 656 - BOMBAY HIGH COURT] no addition was permissible dehorse incriminating material found. Since no incriminating material has been mentioned with respect to addition made, we set aside the orders of the authorities below and delete the addition. Decided in favour of assessee.
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