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Showing 141 to 160 of 23051 Records
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2019 (12) TMI 1550
Addition u/s 68 - addition in Share Capital only by making the reference of RBI Inspection report - whether CIT (A) not giving the proper opportunity to plead the case before it and by passing ex-parte order, the order is not tenable as it is not based on natural ground realities and justice - HELD THAT:- None was present from the assessee’s side. In the absence of any representation from assessee’s side, at the time of hearing before us, we heard the Ld. Sr. DR.
Appellant is a cooperative bank and AO after obtaining statutory inspection of appellant from RBI examinee the share capital introduced in the appellant bank and after detailed enquiry and having confronted appellant made an addition as appellant failed to discharge requisite onus u/s 68 of the IT Act. Similarly an addition was made on account to failure to substantiate genuineness, identity and creditworthiness of eight investors of share capital. Appellant failed to discharge the primary onus u/s 68. An addition appellant's claim regarding addition to share capital and incurrence of business, expenses u/s 37 at assessment stage as well as during appellate stage. Thus, the additions made by AO are upheld and accordingly appellant’s grounds of appeal are dismissed
We find that the Ld. CIT(A) has given detailed reasons for his decision on merits in the aforesaid impugned appellate order of Ld. CIT(A). During appellate proceedings in Income Tax Appellate Tribunalno material has been brought for our consideration to persuade us to take a view different from the view taken by the Ld. CIT(A) in the impugned ord er on merit. After hearing the Ld. Sr. DR and after perusal of materials on record, and further, in view of the foregoing discussion, we decline to interfere with the aforesaid impugned appellate order of Ld. CIT(A); and dismiss this appeal of assessee.
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2019 (12) TMI 1549
Input tax credit - reconstruction of the road work "Penugonda to Munamarru" in Penugonda Mandal of Achanta Assembly Constituency, West Godavari District - credit of GST paid on goods and services used as inputs in execution of "Works Contracts" - execution of Road work contracts to Government Engineering Departments - HELD THAT:- The applicant is providing work contract service under Section 2(119) of the CGST Act 2017, for construction of road ''Penugonda to Munamarru" in Penugonda Mandal of Achanta Assembly Constituency, West Godavari District - ITC for works contract can be availed by the applicant as he is in the same line of business and entitled to take ITC on the tax invoice raised by his supplies as his output is works contract services.
In the instance case, the applicant is the supplier of works contract services and the goods and services received by him for construction of immovable property (other than Plant or machinery) are neither owned nor capitalized in his own account, but passed on to the contractee. Hence even as per the provision of Section 17(5) (d), the applicant does not fall under this ineligible category. Thus the restriction contained under clause c & d of sub section 17(5) is not applicable to the applicant in the given circumstances.
The applicant is eligible for Input Tax Credit (ITC) in respect of the GST paid on goods and services used as inputs in execution of "Works Contracts". Input Tax Credit restriction under Section 17(5)(c) and 17(5)(d) will not apply to the applicant as his output is works contracts service.
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2019 (12) TMI 1548
Detention of detenue - habitual offender and a 'Goonda' - Murder - Telangana Offenders Act 1986 - HELD THAT:- The order of detention in the present case contains a reference to fourteen cases which were instituted against the Appellant between 2007 and 2016. The chart provided on behalf of the State Government which has been extracted earlier indicates that out of the fourteen cases, five cases which pertain to 2012 were transferred to the SIT for investigation; there being no change in that position. Four cases pertaining to 2007 are pending trial. The Appellant has been acquitted in four cases of 2009, 2011, and 2012. The case of 2016 was compromised in a Lok Adalat on 8 September 2017.
In the present case, the order of detention states that the fourteen cases were referred to demonstrate the "antecedent criminal history and conduct of the Appellant". The order of detention records that a "rowdy sheet" is being maintained at PS Rain Bazar of Hyderabad City and the Appellant "could not mend his criminal way of life" and continued to indulge in similar offences after being released on bail - The order of detention may refer to the previous criminal antecedents only if they have a direct nexus or link with the immediate need to detain an individual. If the previous criminal activities of the Appellant could indicate his tendency or inclination to act in a manner prejudicial to the maintenance of public order, then it may have a bearing on the subjective satisfaction of the detaining authority. However, in the absence of a clear indication of a causal connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future.
The detention order dated 25 October 2018 has to be set aside on the following grounds: (i) reference to stale and irrelevant grounds in the detention order by the detaining authority; and (ii) the manner in which the order of confirmation dated 28 December 2018 was presented before this Court, casts doubt on the existence of the order of confirmation in the first place. As regards the registration of Crime No. 178 of 2018, the Appellant was released on bail consequent upon the failure of the investigating authority to file a charge-sheet within ninety days - Appeal allowed.
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2019 (12) TMI 1547
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors or not - Financial Debt or not - existence of debt and dispute or not - HELD THAT:- A perusal of definition of expression 'Financial Creditor' would show that it refers to a person to whom a Financial debt is owed and includes even a person to whom such debt has been legally assigned or transferred to. In order to understand the expression 'Financial Creditor', the requirements of expression 'financial debt' have to be satisfied which is defined in Section 5(8) of the IBC. The opening words of the definition clause would indicate that a financial debt is a debt along with interest which is disbursed against the consideration for the time value of money and it may include any of the events enumerated in sub-clauses (a) to (i). Therefore the first essential requirement of financial debt has to be met viz. that the debt is disbursed against the consideration for the time value of money and which may include the events enumerated in various sub-clauses.
A Financial Creditor is a person who has right to a financial debt. The key feature of financial transaction as postulated by section 5(8) is its consideration for time value of money. In other words, the legislature has included such financial transactions in the definition of 'Financial debt' which are usually for a sum of money received today to be paid for over a period of time in a single or series of payments in future - It is essentially a contract for sale of specified goods. It is true that some time financial transactions seemingly restructured as sale and repurchase. Any repurchase and reverse repo transaction are sometimes used as devices for raising money. In a transaction of this nature an entity may require liquidity against an asset and the financer in return sell it back by way of a forward contract.
The respondent has made categorical assertion which goes unrebutted establishing that no element of time value for money is attracted and it is a simple friendly loan. There is no document on record to prove that element of interest - such a transaction would not acquire the status of a 'financial debt' as the transaction does not have consideration for the time value of money, which is a substantive ingredient to be satisfied for fulfilling requirements of the expression 'Financial Debt'.
In the instant case no such financial contract has also been produced in compliance with the provisions of the Code or of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 either in the petition or additional affidavits - the petitioner does not answer the description of Section 7 read with Section 5(7) & 5(8) of IBC.
Petition dismissed.
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2019 (12) TMI 1546
The High Court of Madras granted the appellant's request to withdraw the appeal with liberty to approach the Tribunal for a review application if needed. The Civil Miscellaneous Appeal was dismissed as withdrawn with no costs, and the connected miscellaneous petition was also dismissed. (Citation: 2019 (12) TMI 1546 - MADRAS HIGH COURT)
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2019 (12) TMI 1545
Maintainability of appeal - availability of efficacious remedy or not - appealable order or not - Violation of principles of natural justice - impugned order passed without grant of opportunity of hearing - requirement of pre-deposit for filing appeal - HELD THAT:- The order passed by the learned Single Judge relegating the Petitioner/Assessee to avail the regular remedy before the first Appellate Authority does not call for any interference by this court in the intra-court Appeal. The alleged grounds relating to breach of principles of natural justice by the Assessing Authority, the binding nature of the Commissioner's Circular are all possible grounds which the Appellant/ Assessee can very well raise before the Appellate Authority.
Merely because there are allegations of breach of principles of natural justice, all Writ Petitions against appealable orders cannot be entertained by this Court under Article 226/227 of the Constitution of India as the Statute has provided alternative and effective remedies to the Assessee aggrieved by the orders passed by the Assessing Authority and even if there is allegation of principles of natural justice, that can very well be raised before the Appellate Authority, who can also very well remand the case back to the Assessing Authority - the Rule of alternative remedy is always a Rule of Discretion for the Writ Court and not a Rule of Bar of jurisdiction.
The learned Single Judge has not erred in relegating the Petitioner/Assessee to the first Appellate Authority under the statute - Appeal dismissed.
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2019 (12) TMI 1544
Penalty levied u/s. 271(1)(c) - Defective Notice u/s 274 - Non specification of charge - assessee has argued that the penalty notice nowhere speaks about specific limb to levy the penalty because the particular charge was not tick off in the notice - HELD THAT:- Since the notice was nowhere tick off by the AO to specify the limb to levy the penalty, therefore, the penalty is not liable to be sustainable in the eyes of law, therefore, we set aside the finding of the CIT(A) on these issues and delete the penalty. - Decided in favour of assessee.
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2019 (12) TMI 1543
Deduction u/s 54F - claim denied on reinvestment in multiple properties located in different addresses - scope of amendment - HELD THAT:- As decided in the recent decision in the case of Tilokchand & Sons v ITO [2019 (4) TMI 713 - MADRAS HIGH COURT] has held that profit on sale of property used for purchasing more than one residential houses within stipulated time limit, the assessee would be entitled to the benefit of exemption under section 54 of the Act
If the word 'a' as employed under Section 54 prior to its amendment and substitution by the words 'one' with effect from 01.04.2015 could not include plural units of residential houses, there was no need to amend the said provisions by Finance Act No.2 of 2014 with effect from 01.04.2015 which the Legislature specifically made it clear to operate only prospectively from A.Y.2015- 2016. Once we can hold that the word 'a' employed can include plural residential houses also in Section 54 prior to its amendment such interpretations will not change merely because the purchase of new assets in the form of residential houses is at different addresses which would depend upon the facts and circumstances of each case.
So long as the same Assessee (HUF) purchased one or more residential houses out of the sale consideration for which the capital gain tax liability is in question in its own name, the same Assessee should be held entitled to the benefit of deduction under Section 54 of the Act, subject to the purchase or construction being within the stipulated time limit in respect of the plural number of residential houses also. The said provision also envisages an investment in the prescribed securities which to some extent the present Assessee also made and even that was held entitled to deduction from Capital Gains tax liability by the authorities below. If that be so, the Assessee-HUF in the present case, in our opinion, complied with the conditions of Section 54 of the Act in its true letter and spirit - Decided in favour of assessee.
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2019 (12) TMI 1542
Reopening of assessment u/s 147 - rejecting the objections filed by the petitioners against the reasons recorded as well as the assessment orders passed under subsection (3) of section 143 read with section 147 - Petitioner invited the attention of the court to the reasons recorded to point out that though the assessment has already been made in the hands of the association of persons, the Assessing Officer sought to reopen the assessment to make protective addition in the hands of the petitioners - as submitted impugned orders are passed in violation of the principles of natural justice and that the proceedings under section 148 of the Act were wholly without jurisdiction, therefore, these petitions under Article 226 of the Constitution of India against the assessment orders are maintainable - HELD THAT:- Having regard to the submissions advanced by the learned advocate for the petitioners, issue Notice, returnable on 13.01.2020.
By way of adinterim relief, the operation of the assessment orders passed under section 143(3) read with section 147 as well as the impugned notices of demand issued under section 156 of the Act is hereby stayed.
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2019 (12) TMI 1541
The legal judgment by the National Company Law Tribunal, Chennai in 2019 (12) TMI 1541 dismissed application MA/25/IB/2018 as withdrawn since the Applicant counsel confirmed withdrawal.
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2019 (12) TMI 1540
Levy of late fee u/s 234E by way of processing TDS statement u/s 200A - assessee has argued that according to Section 200A of the Act which unable the AO to charge fee u/s 234E of the Act was prospectively made effective w.e.f. 01.06.2015, therefore, no fee u/s 234E could have been levied for the assessment years prior to 01.06.2015 - HELD THAT:- It is not in dispute that the assessee has filed the statement of tax deducted at source in ‘Form No.26Q’ for the F.Y.2014-15 delayed. AO has levied the late fees u/s 234E and interest in sum on the basis of an intimation u/s 200A - As in the case of Fatehraj Singhavi [2016 (9) TMI 964 - KARNATAKA HIGH COURT] had observed that the notice u/s 200A of the Act computing fee u/s 234E of the Act would be effective in respect of the period of tax deduction subsequent to 01.06.2015.
Since levy of fees u/s 234E of the Act was made available in Section 200A therefore, we are of the considered view that no fees u/s 234E could have been charged in the course of processing of the statement of tax deducted at source u/s 200A for the period prior to 01.06.2015, therefore, in the said circumstances, the finding of the CIT(A) is not justifiable, hence, we set aside the finding of the CIT(A) on these issues and delete the fees levied statutory dues provisions u/s 234E of the Act. Accordingly, all the issues are decided in favour of the assessee against the revenue.
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2019 (12) TMI 1539
Revision u/s 263 - case of the assessee was selected for limited scrutiny under CASS - CIT invoked the revisionary jurisdiction u/s.263 to look into the other issues relating to the assessee which were not within the purview of the limited scrutiny - HELD THAT:- In this case, the Assessing Officer has already verified those issues for which limited scrutiny was conducted. Commissioner of Income Tax wants the Assessing officer to look into various other issues of the assessee which were not covered within the purview of the limited scrutiny. This is not permitted within the framework of the Income Tax Act.
Further on perusal of the CBDT Circular and the facts of the case, it is clear that the order of the Assessing Officer is neither erroneous nor prejudicial to the interest of the Revenue. The Hon‟ble Supreme Court of India in the case of Malabar Industrial Co. Ltd. [2000 (2) TMI 10 - SUPREME COURT] has specifically held that “in order to assume the revisionary jurisdiction u/s.263, the order of the Assessing Officer must be erroneous so far as it is prejudicial to the interest of the Revenue.”
In the facts of the present case, these criteria are not met so far as the assessment order is concerned and therefore, we quash the order passed by the Ld. Pr. Commissioner of Income Tax u/s.263 - Decided in favour of assessee.
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2019 (12) TMI 1538
Constitutional validity of provisions of Insolvency and Bankruptcy Code, 2016 and more particularly Section 3(8), Section 3(23) and Section 238 and also Sections 7, 8 & 9 - Government companies - HELD THAT: We would not wish to express any opinion on the maintainability of all the proceedings before the NCLT. We do not think that once the petition was pending in this Court, can we prevent M/s.Hindustan Antibiotics Ltd. to proceed with it only because some orders have been passed by the NCLT in the company petition. These orders also have not gained finality on account of the reference to a third member. Further, on the core issue about the applicability of the Code to M/s.Hindustan Antibiotics Ltd., the members of the National Company Law Tribunal are divided in their opinion. There is now a reference made to the third member. We do not think that the National Company Law Tribunal should precipitate the matter when a constitutional challenge is pending before this Court. None can dispute that it is only this Court which can deal with the challenge raised to the constitutional validity of the provisions of the IBC.
We do not think that the NCLT would be well advised in proceeding with the matter. We think that the petitioner has made out a strong prima facie case for grant of interim relief and balance of convenience is also in its favour.
Issue notice to the learned Attorney General for India on the point as to whether the provisions of IBC, as alleged, are ultra vires Article 14 and other relevant Articles of the Constitution of India - Notice be also issued to other respondents, returnable on 22.1.2020.
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2019 (12) TMI 1537
TDS u/s 194A - non deduction of TDS on interest paid to non-banking financial companies - Addition u/s 40(a) (ia) - HELD THAT:- Admittedly, assessee has not deducted TDS under section 194 A of the act against interest paid to nonbanking financial companies. It is also an admitted fact that the companies to whom assessee has made payments are repeated companies like M/s. L & T Finance Ltd., M/s. Bajaj Finance Ltd., M/s. Reliance Capital Ltd., M/s. India Bulls Ltd., M/s. Diamler Finance Ltd., M/s. Kotak Mahindra Bank Ltd., and M/s. Tata Capital Ltd., who are regular assessee’s under Income tax Act. As Ld. AR filed before us certificate issued by chartered accountant which was not filed before authorities below, it is necessary that the same is to be verified. We set aside this issue to Ld. AO for due verification of the facts and to consider the claim in accordance with law.
Addition on account of wages expenditure not adequately backed up by primary documents - HELD THAT:- AO has not rejected the books of accounts - as per CIT (A) there is no finding by Ld. AO that expenditure incurred and claimed by assessee is either capital in nature or personal or wholly and exclusively not incurred for the purposes of business - CIT (A) observed that no defect has been pointed out by Ld. AO in any of specific vouchers - As observed that the disallowance made by Ld. AO is on purely ad hoc basis of 10% - AO has not doubted bona fides of such expenditure. Under such circumstances we do not find any reason to interfere with the view adopted by Ld. CIT (A) and the same is upheld.
Addition u/s 14A r.w.r 8D(iii) - DR submitted that assessee earned exempt income and whenever there is an exempt income earned certain indirect/common expenditure could always be attributable to such receipts - HELD THAT:- . Admittedly assessee has earned exempt income and no new investment has been made by assessee during the year under consideration. Further Ld. CIT (A) has observed that all old investments by assessee have been carried out of internal generated funds and that no borrowed funds have been utilised for investments that have been made in the past. No infirmity in the order of Ld. CIT (A) in restricting disallowance to the extent of exempt income earned during the year.
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2019 (12) TMI 1536
Seeking direction of this Tribunal to declare the CIRP proceedings in the matter - improper/defective filing of Form FA by the IRP - HELD THAT:- The recent Order of National Company Law Appellate Tribunal in HARPREET SINGH AHLUWALIA VERSUS EATIGO INDIA PVT. LTD. AND ORS. [2019 (11) TMI 1663 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] clearly establishes that this Tribunal cannot ignore the claims of the Financial Creditor M/s. State Bank of India, which is amounting to ₹ 15,60,65,148.34 plus the 0.44 crore towards Bank Guarantee in the instant case while considering the withdrawal of the Form FA filed by the Interim Resolution Professional.
The CIR process initiated is not required to be interfered - the Interim Resolution Professional is allowed to continue with the CIR process as mandated by the IBC, 2016.
List on 6.12.2019 for the statement of the IRP.
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2019 (12) TMI 1535
Stay of demand - petitioner has challenged an order passed by the Income Tax Appellate Tribunal, Mumbai imposing a condition of depositing further sum of ₹ 25 crore in two equal instalments to enable the petitioner to enjoy stay against further recoveries in relation to the petitioner’s appeal before the Tribunal concerning the assessment year 2011-12 - HELD THAT:- Till date the respondents have not fled any reply. The Writ Petition is admitted. The respondents waive service.
Income-tax Appellate Tribunal, Mumbai shall not insist on the petitioner depositing the amount as directed by its order dated 4th September, 2019. This order is passed without prejudice to the rights and contentions of the parties. The Income-tax Appellate Tribunal, Mumbai is not precluded from proceeding further with the hearing of the appeal on the date fixed or any date thereafter.
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2019 (12) TMI 1534
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors - earlier Appellant submitted that the Appellant intends to settle the matter with the Operational Creditors and the Committee of Creditors have not been constituted - HELD THAT:- Today, it is informed that the parties have settled the matter and the application for withdrawal has been filed before the Interim Resolution Professional, who asked some clarification from the Adjudicating Authority (National Company Law Tribunal), Kochi Bench, Kochi and the Adjudicating Authority by an order dated 2nd December, 2019 clarified the same.
The Tribunal to pass appropriate order in terms of the decision of the Honble Supreme Court in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT] taking into consideration the other factors including the claim, if any, made by other parties.
Appeal disposed off.
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2019 (12) TMI 1533
TP Adjustment - prescribed method as prescribed under section 92C - determining the arm length price of the international transactions without following any of the prescribed method as prescribed under section 92C - HELD THAT:- As in respect of advance given to AE which has been written off by the assessee, the TPO has taken the ALP of the international transaction of writing off of the bridge fee as nil and an equal adjustment has been proposed to be made in the aggregate value of international transactions reported by the assessee. Similarly, in respect of service fees for purchase of franchise, the ALP of the international transaction has been taken at nil and equal adjustment is proposed.
In both these transactions, we observe that no prescribed method has been followed by the TPO as envisaged by the provisions of section 92C of the Act. The Ld. DRP has also upheld the order of TPO while allowing some relief on the additions proposed. In our view the TPO is duty bound to propose additions/adjustments in ALP after following any of the methods as prescribed in section 92C of the Act. See M/S. JOHNSON & JOHNSON LTD. [2017 (3) TMI 1520 - BOMBAY HIGH COURT] and M/S. KODAK INDIA PVT. LTD. [2016 (7) TMI 677 - BOMBAY HIGH COURT]
In both the decisions, the Hon’ble Bombay High Court has held that it is obligatory on the TPO to follow one of the method as mandated by provisions of section 92C of the Act and therefore we are inclined to set aside the order of DRP/TPO and direct the AO to delete the additions. - Decided in favour of assessee.
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2019 (12) TMI 1532
Scheme of Arrangement by way of Amalgamation - Sections 230 and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- This Tribunal proposes to issue the various directions with respect to calling, convening and holding of the meetings of the Equity Shareholders, Secured and Unsecured Creditors or dispensing with the same, as well as issue of notices including by way of paper publication - the scheme is approved - application allowed.
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2019 (12) TMI 1531
Seeking for admission of the Company Petition - section 7 of IBC, 2016 - HELD THAT:- This matter needs to be settled in a shortest possible time frame failing which the Corporate Debtor be put under CIRP. We find that Hon’ble Appellate Tribunal while disposing the appeal directed this Adjudicating Authority to admit the application under section 7 of IBC, 2016 but with some caveat.
This Authority has to admit Corporate Debtor in CIRP but before that Corporate Debtor must be given opportunity to settle the claim with the Bank. However, there are no record produced either by the Bank or by the Corporate Debtor indicating as to what steps they took to settle the claim - on due consideration of all facts and circumstances of the case and considering the directions of the Hon’ble NCLAT, four week’s time is granted from the date of receipt of this order to the Corporate Debtor to convene the meeting of creditors as per the relevant provisions of the Companies Act, 2013 and get the approval of the scheme of arrangement.
The matter be listed for hearing on 16.01.2020. Interim order to continue till then - application disposed off.
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