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Showing 101 to 120 of 23051 Records
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2019 (12) TMI 1590
Order passed u/s 220(2A) - appealable order before the Income Tax Appellate Tribunal - HELD THAT:- As fairly agreed by the learned Authorized Representative that the appeal is not maintainable in so far as an order u/s.220(2A) is not an appealable order before the Income Tax Appellate Tribunal. Consequently, he has prayed for permission “to withdraw the appeal with a liberty to obtain an alternative remedy.” The learned Authorized Representative has also made an endorsement to that effect.
Consequently, the assessee is permitted to withdraw this appeal with liberty to obtain an alternative remedy. Accordingly, the appeal of the assessee is dismissed as withdrawn. Appeal of the assessee is dismissed.
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2019 (12) TMI 1589
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The ‘Purchase Orders’, which makes it clear that ‘M/s. Consolidated Construction Consortium Limited’ is a ‘Purchaser’ and do not come within the meaning of ‘Operational Creditor’ having not supplied any goods nor given any services to ‘M/s. Hitro Energy Solutions Private Limited’. In any case, whether ‘M/s. Hitro Energy Solutions Private Limited’ or ‘M/s. Hitro Energy Solutions’ all ‘Purchase Orders’ having issued on 24th June, 2013 and advance cheques have been issued for subsequently such orders, ‘M/s. Consolidated Construction Consortium Limited’ cannot move application under Sections, 7 or 9 or the ‘I&B Code’.
As the application under Section 9 was not maintainable at the instance of ‘M/s. Consolidated Construction Consortium Limited’, we set aside the impugned order dated 6th December, 2018. The application under Section 9 preferred by ‘M/s. Consolidated Construction Consortium Limited’ is dismissed.
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2019 (12) TMI 1588
Capital gain computation - Calculation of the sale consideration - development agreement for construction of the flats - property belongs to 2 owners - cost the construction determined by the AO which was collected from the developer - Deduction u/s 54 - HELD THAT:- Assessee has valid point that AO should have considered only the cost of construction, not the cost of the project, as per the submission made by the developer and the cash component will definitely be part of the project cost to the developer when the AO adopts the actual cost to the developer as the relevant cost for the fair value to the assessee. He should have restricted himself to calculate the sale consideration only to the portion of relevant cost of construction only relevant for the flats allotted to the assessee and he should have not considered the cash component which is already embedded in the cost of project. Accordingly, we direct the AO to remove the cash component from the sale consideration.
With regard to other cost of expenditure for which the developer has not provided the breakup of the cost of project/construction, we direct the AO to collect the breakup of the cost of the project/construction from the developer and calculate only the cost of construction and eliminate all those promotional expenditures and the expenditure which is not relating to the cost of construction. Therefore, we are inclined to remit this issue to the file of AO to re-calculate the cost of construction. Accordingly, this ground raised by the assessee is allowed for statistical purposes.
Deduction u/s 54 - Combining of flats - how combined portion of the area will be treated as one single unit? - We notice that assessee has modified the development agreement for construction of the flats from 40 flats to 36 flats and 2 penthouses and distributed between them as per terms of original agreement. Therefore, the modified agreement and its schedule, which is placed on record at page no. 43 of the paper book clearly indicates that the intention of the developer and the assessee to make 2 penthouses in 11th and 12th floor as penthouses and assessee was regularly pleading that these 2 penthouses were constructed by combining 4 flats at floors 11th and 12th.
AO has rejected the contention of the assessee with the observation that there is no record that this combing of flats were made during the impugned assessment year. We cannot accept the contention of the AO for the reason that the purpose of modification of the development agreement was to combine 4 flats and to make 2 penthouses. Therefore, we are in agreement with the submission of Ld. AR that there exist 2 penthouses at the site developed by the developer as per the terms of agreement in modified development agreement.
Development agreement was entered by the assessee along with his son with share of 73:27 between them and it is clear that there exist 2 penthouses and two individual assessee . Therefore, each assessee will get separate exemption u/s 54F of the Act. This benefit is legally available to both the assessee . There are catena of cases in which courts have held that when there exists two portion of flats with one ketchen then the whole combined portion of the area will be treated as one single unit for the purpose of granting exemption u/s 54 as well as 54F. Accordingly, we direct the AO to grant exemption u/s 54F of the Act to each assessee and as per their choice. On record, assessee prefers to get penthouse occupied by his daughter as exemption u/s 54F and by legally AO should allow this penthouse as exemption u/s 54F of the Act. Accordingly, this ground raised by the assessee is allowed.
Classification of transaction of sale into land and super structure - CIT-A distributing the sale proceeds into sale proceeds attributable to the land and super structure - flat purchaser has irrecoverably withdrawn his rights for any future FSI /TDR benefits awarded to the owners - assessee determined the capital gains in 2 portions as sale proceeds attributable to the land and determined the capital gain as long term capital gain and second portion as sale proceeds attributable to super structure and determined the capital gain as short term capital gains - HELD THAT:- We notice that in the case of CIT v Citibank [2003 (4) TMI 92 - BOMBAY HIGH COURT] it was held that as per the above ratio, the flat owners will get right of possession as well as right on portion of the undivided share in the land. We notice that as per the proportionate area of flats occupied by him in respect of the total area of the building i.e. undivided share, the owner of the flat will get an automatic membership in the cooperative society in proportion to the undivided share. Since cooperative society owns the total area of the land and being a member of the society, he gets the ownership of the undivided share. As per the sale deed, it is clear that assessee gets a membership on the cooperative societies, it does mean that flat owners not only owns a super structure and also ownership right on the undivided share, therefore we are inclined to accept the findings of Ld. CIT(A) in distributing the sale proceeds into sale proceeds attributable to the land and super structure. Accordingly, we reject the contentions of the revenue and dismiss the grounds of appeal raised by the revenue.
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2019 (12) TMI 1587
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - rejection of application on the ground that the debt in question was secured Corporate Guarantee - application barred by time limitation or not - HELD THAT:- Similar issue fell for consideration before the Hon’ble Supreme Court in GAURAV HARGOVINDBHAI DAVE VERSUS ASSET RECONSTRUCTION COMPANY (INDIA) LTD. AND ANR. [2019 (9) TMI 1019 - SUPREME COURT]. The said case was disposed of on 18th September, 2019. In the said case, the Hon’ble Supreme Court noticed that the account of Respondent No.2 was declared NPA on 21st July, 2011 and subsequently, the State Bank of India filed two Original Applications before the Debts Recovery Tribunal in the year 2012 for recovery of the total debt of ₹ 50 crores. In the meantime, when the State Bank of India assigned the debt to Asset Reconstruction Company (India) Limited on 28th March, 2014, the Debts Recovery Tribunal vide judgment dated 10th June 2016 held that the waiver was not maintainable. In the said case, this Appellate Tribunal by its judgment held that the limitation for application under Section 7 will be counted only from 1st December, 2016, which is the date on which the I&B Code brought into force.
In the present case, it has been accepted that the ‘Corporate Debtor’ defaulted on 13th March, 1989. With regard to other Banks, it defaulted on 29th November, 1989. The suit was filed by IFCI, IDBI & ICICI Banks in the year August 1990. The Judgment and Decree has been passed as far back as on 6th May, 2011. Therefore, the application filed under Section 7 of the I&B Code is barred by limitation - facts also suggest that the application under Section 7 of the I&B Code was filed for the purpose of execution of the Decree passed by the Debts Recovery Tribunal in favour of the ‘Financial Creditor’ for the purpose other than for the resolution of insolvency, or liquidation and is covered by Section 65.
The Adjudicating Authority rightly dismissed the application, which is barred by limitation. This Appeal is dismissed.
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2019 (12) TMI 1586
Approval of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 r/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Para 6 of the Scheme provides that the amalgamation of each of the amalgamating companies shall be accounted for in the books of account of the amalgamated company in accordance with "Pooling of Interests Method" of accounting as per the accounting standard (AS) 14, "Accounting for Amalgamations" as prescribed under the Companies Rules, 2006 applicable to the amalgamated Company pursuant to Rule 3(2) of the Companies Rules, 2015 notified under section 133 of the Companies Act - There is no additional requirement for any modification and the Scheme of Amalgamation appears to be fair and reasonable and is not contrary to public policy and not violative of any provisions of law. All the statutory compliances have been made under Sections 230 to 232 of the Companies Act, 2013.
The Company Petition is allowed and the Scheme of Amalgamation annexed with the Petitions is hereby Sanctioned.
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2019 (12) TMI 1585
Approval/sanction of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 (CA, 2013) r/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (Rules, 2016) and NCLT Rules, 2016 - HELD THAT:- There is no additional requirement for any modification and the Scheme of Amalgamation appears to be fair and reasonable and is not contrary to public policy and not violative of any provisions of law. All the statutory compliances have been made under Sections 230 to 232 of the Act, 2013. Taking into consideration the above facts, the Company Petition is allowed and the Scheme of Amalgamation annexed with the Petition is hereby Sanctioned. The Scheme approved shall be binding on the Shareholders, Creditors and Employees of the Companies involved in this Scheme. The Appointed date of the Scheme is 01.04.2018.
The scheme is approved - application allowed.
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2019 (12) TMI 1584
Seeking Liquidation of the Corporate Debtor - Section 33 of the Insolvency & Bankruptcy Code, 2016 - Committee of Creditors meeting has approved for Liquidation - HELD THAT:- In the CoC meeting dated 01.08.2019, the CoC unanimously decided to liquidate the Corporate Debtor under section 33(1) of the I&B Code. The CoC decided that the RP Mr. Dhanshyam Patel be appointed as liquidator subject to approval of this Bench.
The company is ordered to be liquidated - the Process of Liquidation shall commence as per the Chapter III of the Code from date of this Order - application allowed.
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2019 (12) TMI 1583
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - time limitation - HELD THAT:- The Corporate Debtor, Jayant Vitamins Ltd. committed default on 13th September, 1996. Thereafter, Appellant filed suit for recovery which was decreed on 17th October, 2005 and a case for execution is pending. Therefore, it is found that the application under Section 7 was barred by limitation.
An application under Section 7 was filed with malicious intent, not for resolution of insolvency or liquidation, as covered under Section 65 of the I&B Code - appeal dismissed.
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2019 (12) TMI 1582
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- From the records it is noticed that the Corporate Debtor has not submitted any proof to substantiate its claim that the dispute is pre-existing in accordance with the provisions of IBC 2016 - Further there is no record to substantiate/justify the counter claim made by the Corporate Debtor for an amount of ₹ 23,97,616/- as claimed by Corporate Debtor. Further the said quantum of amount has also not been adjudicated by any relevant Authority.
The application made by the Operational Creditor is complete in all respects as required by law. The Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor.
Petition admitted - moratorium declared.
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2019 (12) TMI 1581
Territorial Jurisdiction - Payment of illegal gratification to get relief from the cases registered - Section 8 of Prevention of Corruption Act - principles of res-judicata - whether respondent No.1 had jurisdiction in the case registered in New Delhi, to investigate in the State of Chhattisgarh, without grant of permission under Section 6 of the Delhi Special Police Establishment Act? - HELD THAT:- As per Article 226 of the Constitution of India and the view expressed by Supreme Court in Navinchandra's case [2000 (9) TMI 925 - SUPREME COURT], it may be so that partly the cause of action has arisen in the State of Chhattisgarh as some part of investigation has been conducted by the CBI in Chhattisgarh State. Although this petition has been filed previously on 21.2.2017, whereas WP(Criminal) No. 79/1989 was filed at New Delhi High Court in the year 2018, but the High Court at Delhi has already heard and decided criminal writ petition of co-accused person and that decision too is by a Division Bench. According to the same principle as expressed in Majithia's Case regarding the jurisdiction under Article 226 Constitution of India, the High Court at New Delhi also has jurisdiction to entertain a petition and decide the same on the same logic that the FIR has been registered at New Delhi. It is alleged in the charge-sheet that the conspiracy was hatched up in New Delhi, therefore, the High Court of New Delhi has been the first to exercise jurisdiction and pass an order in the same case with respect to coaccused Anand Agrawal.
There being a decision of a High Court exercising competent jurisdiction, hence, this Court being a Court of Single Judge cannot take up the said issue in the same case to consider and decide the same. The rule of judicial propriety is applicable in such cases, therefore, under the judicial discipline, it is not proper for this Court to take up for decision an issue which has already been decided by a Division Bench of a High Court of competent jurisdiction.
The Delhi High Court in Anand Agrawal's case [2018 (10) TMI 1938 - DELHI HIGH COURT] has very clearly held that CBI has registered the case in New Delhi, only because some of the acts of criminal conspiracy were performed by the accused persons outside Delhi i.e. in Raipur, in that case there would be no necessity for CBI to seek prior sanction of State under Section 6 of the Act for the purpose of investigation. Hence, this issue has already been decided and as per the call of judicial discipline and also the principle of res-judicata, there is no need to reconsider it again. Hence, the issue raised by the petitioner on the point of jurisdiction of CBI investigating the case in Chhattisgarh without prior sanction under Section 6 of the Act is answered accordingly.
As per provisions of Section 8 of the PC Act, it is very clear that a person, who accepts or obtains or agrees to accept or attempts to obtain any illegal gratification, is himself not a public servant. It is only his endeavor or intention to induce by corrupt or illegal means any public servant, is relevant. There is no specific detail in the charge-sheet as to who was the public servant who was to be induced by corrupt or illegal means. Be that as it may, the requirement of proof under Section 8 of PC Act is complete when it is proved that an accused has accepted or obtained or agreed to accept, or attempted to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service etc. This whole section does not put-forth a requirement that the public servant must also be identified for the purpose of Section 8 of PC Act, it is applicable only to a private person, who is not a public servant.
There are no substance in this petition - petition dismissed.
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2019 (12) TMI 1580
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Corporate Applicant/Financial Creditors - existence of debt and dispute or not - HELD THAT:- Hon'ble High Court of Delhi in Liberty House Group Pte Ltd. Vs. State Bank of India and Ors. [2019 (2) TMI 1453 - DELHI HIGH COURT] which dealt with the issue regarding the jurisdiction of the Civil Court to entertain any suit or proceedings and grant interim injunction restraining encashment of bank guarantees and the objection of the defendants to the subject jurisdiction of the Civil Court was for consideration and whether NCLT has the jurisdiction under the I &B Code, 2016 - it can be said that the ratio laid down in the above judgement clearly states that no Civil Court shall have the jurisdiction to entertain any suit or proceedings in respect of any matter on which the National Law Company Tribunal has jurisdiction under the I & B Code, 2016.
The Core issue is whether NCLT can order possession of the property of Corporate Applicant to facilitate the CIRP process and allow the Resolution Professional to take possession of the assets of Corporate Applicant, pending adjudication of pending suit filed by Corporate Applicant seeking possession of the shed from the applicant.
Section 60(5) and (b)(c) of the Code empowers NCLT to entertain the dispute raised in the suit, section 63 of the Code further bars the jurisdiction of the civil court in matters pertaining to the NCLAT, section 231 of the Code also bar the jurisdiction of the civil court from granting any injunction in respect of any action taken or in pursuance of any order passed by the Adjudicating authority under this Code - Upon conjoint reading of section 60(5), section 63, section 231 and section 238, the jurisdiction of Civil Court is excluded related to the matters related to I & B code. Therefore, it can be held that NCLT can order possession of the property of Corporate Applicant to facilitate the CIRP process and allow the Resolution Professional to take possession of the assets of Corporate Applicant.
The principles of comity would be affected if conflicting order were passed by the Civil Court and the NCLT the same would be detrimental to the resolution process. The office of Resolution Professional has become functus officio, the Liquidator has been appointed, the liquidator subject to the directions of the Adjudicating Authority under section 35(1)(b) has the power to take into his custody or control all the assets, property effects an actionable claim of the Corporate Applicant - the non-obstante clause as prescribed section 238 of the I & B Code, 2016, provides that the provisions of the Code shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.
It is the case of Corporate Applicant that he is seeking possession in the suit, whereas the Applicant is only claiming recovery of monies in his suit. There are no restraint orders passed in both the cases. Therefore, the Resolutions Professional's claim for possession of shed before the adjudicating authority in view of CIRP order, can be entertained under the I & B Code - the applicant has also filed his claim before the Resolution Professional and has subjected himself to the jurisdiction of the CIRP. His claim was rejected by the RP. In view of the moratorium, the suit filed by the applicant was temporarily stayed, but the suit filed for recovery of possession filed by the Corporate Applicant would deemed to continue. With the given factual matrix, the CIRP period of 270 days having come to an end, the office of IRP has become functus officio.
In view of the overriding powers under section 238 of the Code and Rule 11 of NCLT Rules 2016, and it is directed that Resolution Professional/ Liquidator shall be allowed to take possession of the Shed from the Applicant - the RP/ Liquidator is directed to take possession of the Shed - application disposed off.
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2019 (12) TMI 1579
Levy of tax - Financier of a motor vehicle/transport vehicle in respect of which a hire-purchase, lease or hypothecation agreement has been entered - liability of tax from the date of taking possession of the said vehicle under the said agreements, even if its name is not entered in the Certificate of Registration or not? - HELD THAT:- As regards 'motor vehicles other than a transport vehicle' liability regarding arrears in respect thereof would be practically Nil as one time tax is paid. If a dispute regarding liability to pay arrears of tax etc. in respect of motor vehicles other than transport vehicles does arise it will have to be determined keeping in mind the enunciation of the law as aforesaid. The Financier on taking possession of the vehicle will be liable accordingly - It is not out of place at this stage to mention that when the registered owner (borrower) is in arrears of tax etc. then intimation of such arrears and the liability of the registered owner to pay such arrears of tax is sent not only to the registered owner but is also sent to the Financier under Rule 18(3) read with Form E-I of the Act, 1997, as quoted earlier, on his address, meaning thereby, the Financier can avoid such further liability by taking suitable action either for possession of the vehicle treating it to be a breach of agreement, if there is any such condition in the agreement or, they can avoid such liability by ensuring such conditions being incorporated in the agreements with the borrower.
The fact that the name of the Financier, after taking possession of such vehicle, is not entered in the Certificate of Registration as the registered owner, is of no consequence in this regard, as, the provisions contained in Sub-section (3) of Section 9, Sub-section (3) of Section 20 and Section 2(g) and 2(h) do not contemplate any such requirement in the case of a vehicle, covered under the relevant agreements, already discussed hereinabove, which is in possession of the Financier under such agreement. All that is necessary is the possession of the motor vehicle. If it has been taken by the Financier under such agreement, he would be liable, of course, alongwith the operator, if any, jointly, and severally.
Neither the provisions of Section 50 and 51 nor the corresponding Rules contained in Rule 61 regarding entry of name in the Certificate of Registration or issuance of fresh certificate to Financier have any relevance whatsoever so far as liability in such a scenario to pay tax, additional tax or penalty under Sub-Section 3 of Section 9 read with Section 20 of the Act, 1997 is concerned. If the action under Section 51(3) and/or (3) read with Rule 61(2) is held to be a necessary prerequisite for liability to tax etc. then it would render part of definition of 'Operator' and 'Owner' regarding possession meaningless and superfluous in this context, as, such eventuality would in any case be covered by the first part of Section 2(h) and second part of Section 2(g). The words 'Owner' and 'Operator' occurring in Section 9 and 20 have to be read in consonance with the definition clause contained in Section 2(g) and (h) as already discussed - the word used in Section 9(3) and 20 of the Act, 1997 is not 'registered owner' but 'Owner', therefore, for purposes of liability to tax etc., the Act, 1997, in view of Section 2(h) therein, envisages the onus not only on the 'registered owner' but also on the person in possession under the agreements referred earlier. The same analogy/principle applies to the liability of 'Operator' under Section 2(g). In the context of the questions referred to us the fact that the name of the Financier is not entered in the Certificate of Registration, is irrelevant. What is relevant is whether he has taken possession of the vehicle under the agreements referred earlier or not.
The word used in Section 9(3) and 20 of the Act, 1997 is not 'registered owner' but 'Owner', therefore, for purposes of liability to tax etc., the Act, 1997, in view of Section 2(h) therein, envisages the onus not only on the 'registered owner' but also on the person in possession under the agreements referred earlier. The same analogy/principle applies to the liability of 'Operator' under Section 2(g). In the context of the questions referred to us the fact that the name of the Financier is not entered in the Certificate of Registration, is irrelevant. What is relevant is whether he has taken possession of the vehicle under the agreements referred earlier or not.
Application disposed off.
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2019 (12) TMI 1578
Liquidation of the Corporate Debtor - Section 33 of the Insolvency and Bankruptcy Code, 2016 read with Regulation 33(2) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 and Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is evident that no resolution plan has come because no Expression of Interest was issued by the Resolution Professional for the reasons aforementioned. However, since the CoC has taken a decision for liquidation of the company, the same being permitted and explicitly stated u/s. 33(2) of the Code as amended on 16.08.2019 since the CoC has already passed resolution for liquidation of the Corporate Debtor with 73.44% voting share on 18.10.2019, the liquidation order is passed.
Application allowed.
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2019 (12) TMI 1577
Classification of goods - rate of duty - outward supply of flavoured milk - whether 'flavoured milk' is classifiable under tariff item 2202 9930 of the First Schedule to the Customs Tariff Act, 1975 as a “beverage containing milk” with the rate of tax as 12% GST as per the ruling of AAR or it is classifiable under HSN 0402 9990 with the rate of tax as 5% under Notification No.1/2017 - Central Tax (Rate) as per the contention of the appellant? - Whether 'flavoured milk' can be considered a beverage containing milk? - N/N. 3/2005-C.E.
HELD THAT:- In common parlance, a beverage is “(chiefly in commercial use) a drink other than water. It is a liquid for drinking especially such liquid other than water (as tea, milk, fruit juice, beer) usually prepared (as by flavouring, heating, admixing) before being consumed”. The instant product, the flavoured milk is undoubtedly a beverage containing milk. It is moreover, a 'preparation' made as per the description given by the appellant in the flow chart submitted by him - even though the product in question is a dairy produce and also an edible product of animal origin, the qualifier that it is “not elsewhere specified or included” makes it ineligible to be classified under the chapter 4. The product in dispute as it is already specified and included under chapter 22 dealing with goods /items of “Beverages, spirits and vinegar” makes it ineligible to be classified under chapter 4.
Thus, the commodity 'flavoured milk' merits classification under beverage containing milk under tariff heading 2202 90 30. The rate of tax applicable for the said tariff item is 12% GST under entry no. 50 of Schedule II of Notification No.1/2017 - Central (Rate) dated 28.06.2017 as amended - the Ruling of the AAR is in tune with legal position and it needs no interference and the appeal is accordingly dismissed.
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2019 (12) TMI 1576
Permission for withdrawal of petition - recording of terms and conditions of settlement agreement - Constitution of CoC - HELD THAT:- Mere plain reading of the provisions shows that Section 12A inserted by the amendment dated 06.06.2018 under which an application which was admitted under Section 7, 9 or 10 can be withdrawn and regulation 30A which has been amended recently provides how the withdrawal applications filed under Section 12A can be entertained by the Adjudicating Authority while considering the prayer of withdrawal of applications which has been admitted under Section 7, 9 or 10.
Mere plain reading of the amended provision made in the regulations shows that there are two circumstances under which withdrawal is permissible. One is before the admission of the application under Section 7, 9 or 10 and before the constitution of COC and second one is after the admission of the application under Section 7, 9 or 10 and after the constitution of the COC and appointment of IRP. The present application herein is admitted on 01.11.2019 and IRP was appointed and the Operational Creditor was also directed to deposit of ₹ 2 lacs to meet the immediate expense of the IRP but here in the place of IRP the applicant directly filed the application under Rule 11 of the NCLT rules - the applicant has not filed the application under Section 12A read with Regulation 30A through TRP rather it is filed without following the procedure laid down in Section 12A of IBC, 2016 read with Regulation 30A of CIRP Regulations. So, in our opinion, the present application is not maintainable and liable to dismissed.
Application dismissed.
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2019 (12) TMI 1575
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The Financial Creditor has established beyond doubt that the loan was duly sanctioned and duly disbursed to the Corporate Debtor and that there has been default in payment of the Debt by the Corporate Debtor.
The application made by the Financial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor.
Application admitted - moratorium declared.
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2019 (12) TMI 1574
Classification of supply - naturally bundled services or not - composite supply of principal activity of supply of electrical energy or not - activities enlisted by the appellant in the queries such as connection, re-connection, supervision of the works, erection of poles, sub-stations, transmission lines and supply of meters etc., to the consumers for the purpose and during the course of supply of electricity to them - services can be treated as part of principal supply of "transmission or distribution of electricity", which is exempted or not - supplies made to the consumers through contractors and third parties for the purpose of transmission or distribution of electricity or sale of electrical energy - HELD THAT:- From Circular No. 34/8/2018-GST, it is clear that the services numbered from (i) to (iv) as provided by DISCOMS to consumer are taxable. It is to be noted that the supply of electricity is a continuous supply whereas the ancillary services provided by the appellant are made at the specific request of the consumer. It is the same principle that guides in the determination of the question whether the ancillary activities form part of the composite supply or not.
On perusal of definition of composite supply, it is clear that the ancillary activities of the appellant such as connection, re-connection, supervision of the works, erection of poles, sub-stations, transmission lines etc., and supply of meters etc., are not naturally bundled with supply of electricity rather they are supplied by and charged for by the appellant only if demanded or consumed by the customers. Thus, the exemption notified for 'transmission and distribution of electricity' cannot be extended to it's ancillary supplies on the pretext of they being a part of composite supply, which is far from true; and they are taxable irrespective of the fact that whether they are supplied by contractors or third parties.
Whether the works executed under Deendayal Upadhyay Gram Jyoti Yojna for Rural Electrification ('DDUGJY'), Integrated Power Development Scheme (IPDS) and Restructured Accelerated Power Development and Reforms Program supplies made through contractors are liable to 12% GST since they are executed under grants provided by central government and no commercial activity is involved with regards these works? - Whether the execution of the Agricultural Demand Side Management Scheme (AGL) works are liable to 12% GST since they are executed for non-commercial purposes? - HELD THAT:- It is a settled issue between the appellant and the lower authority that APSPDCL is a Government entity vide Notification No.31/2017 Central Tax (Rate) dt. 13.10.2017. But the issue to be determined is whether the concessional rate of tax is applicable to the appellant - the formation of the appellant company itself is made with an objective of being self-reliant commercially and all the programmes of Deendayal Upadhyay Gram Jyoti Yojna for Rural Electrification ('DDUGJY'), Integrated Power Development Scheme ('IPDS') and Restructured Accelerated Power Development and Reforms Program and the execution of the Agricultural Demand Side Management Scheme (AGL) works taken up by the appellant through the contractors, even though funded by the Central Government with grants of 60% or by the State Government with REC loan funding, have the main objective of making the organization as commercially viable. It clarifies that the works referred by APSPDCL are for commercial purpose and the benefit of concessional rate of 12% as per the Notification No. 24/2017- Central Tax (Rate) dt.21.09.2017 is not applicable to the appellant.
Whether the supply of services and goods made by the appellant through contractors by way of construction, erection, commissioning, or installation of infrastructure for extending electricity distribution network up to the tube well of the farmer or agriculturist for agricultural use are exempted vide Notification No.14/2018- Central Tax (Rate) dated 26.07.2018? - HELD THAT:- The plain reading of the Heading 9954 clarifies that the exemption is applicable only to the 'electricity distribution utilities' i.e., the appellant alone and it being a exemption notification cannot be interpreted or extended to the contractors who carry out the above mentioned works on behalf of the appellant and therefore the works taken up by contractors are exigible to tax. We concur with the decision of the lower authority in this regard.
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2019 (12) TMI 1573
Classification of goods - applicable rate of GST - Anaerobic Microbial Inoculurns (AMI) - to be classified under chapter sub-heading 31010099 of the heading 3101 of the GST Tariff or not - HELD THAT:- Though the authorized representatives of the party had contended that the alternate use of AMI was as organic manure, the website of the party viz. www.elefobiotech.com, does not show organic manure as one of its manufactured products. The said website, while describing AMI, states inter alia- “AMI are bacterial consortium which converts fecal matter into gases and water.” From the same site also states inter alia- “During the Bio-degradation of the faecal matter, CO2, Methane and water are generated along with very little sludge.” The capability of AMI to bio-degrade faecal matter is the reason why AMI is used in Bio digester toilets by Indian Railways. The whole process is eco-friendly and waste is broken down into gases and water. The remaining sludge is minimum quantity which may or may not be used as organic manure. The contention put during the time of hearing that the dung with AMI can be used as fertiliser appears to be a weak attempt to justify their claim of the product as fertilizer. The dung is used as the base for the culture of AMI and this AMI growth in no way adds to the fertilizing property of dung. Moreover, the company is manufacturing and selling AMI for bio degrading human waste and not AMI infused dung as fertilizer. Thus, it is not the AMI which is organic manure but at the most the products resulting out of its actions which can be put into use as manure, though that too has not been claimed.
Though the Ld AAR has discussed the nature of AMI in their ruling quite elaborately, but appear to have failed to understand the issue in the proper perspective. Obviously, the contention of the authorized representatives is wrong and the inference drawn by the Ld. AAR on the issue is also completely inaccurate and misconceived. Therefore, by no stretch of imagination can AMI be considered as organic manure and hence it cannot be classified under HSN 3101.
In the present case, on a detailed scrutiny of the details of AMI as submitted by the party as well as the description given on their website and other relevant information, it is found that the product 'AMI' are not any product of living cell or organism,' rather they are themselves culture/colonies of bacteria put in the medium of dung. They are also not acting as a catalyst in the strict sense rather they digest the waste products releasing water and gases as by products. Therefore. 'AMI' cannot be classified under the heading of 'Enzyme' as contended in the appeal filed by the CGST officer. During the hearing the party's representative Shri Bathla also stated that their product may get covered as live bacteria.
Anaerobic Microbial lnoculum (AMI) is to be classified under GST Tariff heading No. 3002 (Sub heading 30029030) on which the applicable rate of GST is 12%.
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2019 (12) TMI 1572
Revision u/s 263 by CIT - Unexplained source of cash deposits not acknowledged by the AO - HELD THAT:- Details were submitted for verification of source of cash deposits such as Return of Income, Computation of Income, Unsecured Loan taken during the relevant year, details of source of cash deposits, Balance Sheet for F.Y. 2012-13, cash book of F.Y. 2013-14 and balance sheet of 2013-14 etc., of all the investors who were asked by the AO by notice dated 03.03.2016 and 07.11.2016 and also during the course of hearing. All the required details have already been submitted during the scrutiny assessment proceedings vide various submissions and same were also acknowledged by the AO.
Valuation of shares as per DCF Method - It is widely followed method for valuation of unquoted equity shares. This method involves projection of future cash flows. Techno, economic viability stata report was also obtained based on the said projection and conserving the profitability of the project. Thus, the projection was drawn as per the assessee after stating various aspects of the whole nature and other factors related to project. The actual figures may differ from the projections due to various factors and circumstances of the market in real time. On the entirety of the aspects, we rely upon the decision of Shree Salasar Overseas Pvt. Ltd., [2011 (11) TMI 686 - ITAT JAIPUR] it was held as “that details were filed before the Assessing Officer vide a letter in which, it was mentioned that such expenses were being allowed in earlier year. Hence, this was not a case where there was no enquiry.
AO had called for explanation on both the ground by issuance of notice and subsequently, the assessee had also submitted all the details in order to satisfy the queries raised during the investigations done by the AO which clearly shows that the AO had undertaken the exercise of examining of both the above issues. It appears that since the AO was satisfied with the assessee’s explanation, he accepted the same. Even the commissioner conceded the position that AO made the enquiries, but the grievances of the commissioner was that the AO should have made further enquiries rather accepting the assessee’s explanation, therefore it could not be said that it was a case of lack of enquiry.
Pr.CIT has not pointed out any specific deficiency in the enquiry that was not made, in the show cause notice as well as in the order u/s.263 of the Act - We hold that the order passed by ld.Pr.CIT u/s.263 of the Act for the above stated reasons is hereby set-aside and quashed - Decided in favour of assessee.
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2019 (12) TMI 1571
Taxability of freight charges from transportation of cargo through feeder vessels - freight income from transportation of cargo through feeder vessels is not eligible for benefit under Article 8 of India- Germany DTAA - income from feeder vessels would fall within the ambit of section 44B of the Act whereas the same shall not eligible for benefit under Article 8 of India-Germany DTAA - HELD THAT:- We finding no reason to take a different view as per AY 2007-08 [2012 (5) TMI 9 - ITAT MUMBAI] thus, are of the considered view that the benefits of Article 8 of the DTAA between India and Germany would also be available to the assessee in respect of the revenue earned from the feeder vessels obtained by the assessee by slot hire arrangements. The Grounds of appeal raised by the assessee before us are allowed.
Additional claim of IDS credit - claim was made by the assessee by moving a letter before the Assessing officer but the Assessing officer did not deal with the same - DRP also declined to interfere in the matter on the ground that the assessee had not made the claim before the Assessing Officer - HELD THAT:- We are of constant view that the matter should be examined by the Assessing Officer on merits. There cannot be any dispute that any legal issue can be raised before this Tribunal and the Tribunal can pass such orders “as it thinks fit” on the same. We direct the Assessing Officer to examine the claim of the assessee on merits.
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