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Showing 361 to 380 of 23051 Records
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2019 (12) TMI 1328
Reversal of CENVAT Credit - not availing benefit of exemption - absolute exemption or conditional exemption - reversal sought on the ground that the said amount was utilized for payment of duty on excisable goods - benefit of N/N. 30/2004-CE. - HELD THAT:- The adjudicating authority has ordered for reversal of the accumulated credit on the ground that the appellant was availing the exemption notification No. 30/2004-CE, therefore, required to reverse the credit in terms of Rule 11(3)(ii) - it is found that such condition for reversal is only in respect of the exemption notification, which is absolute exemption, whereas, in the present case notification No. 30/2004-CE contained condition of non availment of Cenvat Credit in respect of input, input service and capital goods, therefore, the exemption is not absolute exemption. Hence, as per rule 11 of Cenvat Credit is not required to be reversed.
On the identical issue this Tribunal in the case of M/S PATODIA FILAMENTS PVT. LTD., SHIVKARAN CHOUDHARY VERSUS C.C.E. & S.T., -VAPI (VICE-VERSA) [2019 (4) TMI 435 - CESTAT AHMEDABAD] has held that the Cenvat Credit was held to be admissible and the same was not required to be reversed.
Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 1327
The Supreme Court of India dismissed the appeal as withdrawn based on the Sabha Vikas (Legacy Dispute Resolution) Scheme, 2019. The application for withdrawal of the appeal was allowed.
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2019 (12) TMI 1326
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational debt or not - existence of debt and dispute or not - HELD THAT:- A right to payment is a claim. 'Debt' means a liability or an obligation in respect of a claim which is due from any person which includes a financial debt an operational debt. Any liability or obligation in respect of a claim due from any person is a debt. May be that the petitioner is entitled for refund of TDS amount which is due from the corporate debtor. There is an obligation on the part of the corporate debtor to refund the amount deducted towards TDS. Now the question is whether the amount deducted towards TDS falls within the definition of 'operational debt'. When the amount paid towards TDS comes within the four corners of the definition of 'operational debt', then only the petitioner can maintain this petition under section 9 of the I&B Code and the petitioner will be called as 'operational creditor'.
The operational debt is a claim in respect of the provision of goods or services. If any amount is payable in respect of goods, then it becomes an 'operational debt'. Here the petitioner is claiming that it has paid TDS to the statutory-authorities without deducting the same from the invoices. Firstly, the petitioner is not supplier of goods. The petitioner is only a purchaser. Secondly, no amount is due in respect of the amount payable for purchase of material. The corporate debtor is the supplier - Admittedly, it is not the case of rendering any services to the corporate debtor. Amount paid towards TDS cannot be held to be an 'operational debt'. If the petitioner has paid TDS to the statutory authorities, naturally the petitioner is entitled for refund from the corporate debtor. The petitioner has to initiate separate action against the corporate debtor for recovery of the same by filing a civil suit or taking appropriate action available under the law.
As far as I&B Code is concerned the claim must be in respect of provision of goods or services or other liabilities stated thereunder in section 5(21) of the I&B Code. We are unable to agree with the contention of the operational creditor that the amount paid to the statutory authorities towards TDS is an 'operational debt' - the amount paid by the petitioner towards TDS does not come within the definition of 'operational debt' and as such the petitioner is not an 'operational creditor', who can maintain this petition under section 9 of the I&B Code.
The money given towards advance was held to be not an 'operational debt'. This was confirmed in the decisions cited above. Similarly, the amount paid towards TDS will not come under the definition 'operational debt'. Therefore, the petition cannot be admitted under section 9 of the I&B Code and the petition deserves to be rejected - petition dismissed.
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2019 (12) TMI 1325
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The facts and circumstances of the case clearly established that the debt and default in default in question. The Adjudicating Authority also has given several opportunities to the Respondent to settle the issue or to file their objection. However, they have failed to avail the opportunity and thus there is no other alternative for us except to consider the case as per merits. The instant Application/Petition is filed in accordance with law and a qualified Insolvency Professional namely Mr. Ravindranath N. is suggested to appoint him as IRP, who is prima facie eligible to be appointed as the Interim Resolution Professional and he has also filed his written consent in Form 2 dated 12.06.2019 by inter alia affirming that he is eligible to be appointed as a Resolution Professional in respect of the Corporate Debtor and certified that there are no disciplinary proceedings pending against him with the Board or IPA of ICAI.
The instant case is a fit case to admit by initiating CIRP in respect of the Corporate Debtor, appointing IRP, imposing Moratorium etc., as per the Code - Application admitted - moratorium declared.
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2019 (12) TMI 1324
Levy of late fee u/s.234E - intimation u/s 200A - Late filing of TDS returns / statement - Whether there is no power granted by the Statute at the relevant point of time to the Assessing Officer (AO) u/s.200A? - case pertaining to the quarter for the AY.2013-14 - HELD THAT:- The said issue is covered in favour of assessee by the decision of the Co-ordinate Bench of ITAT, Pune Tribunal in the case of C&M Farming Ltd. [2019 (11) TMI 1407 - ITAT PUNE] as relying on Medical Superintendent Rural Hospital, DOBI BK [2018 (10) TMI 1587 - ITAT PUNE] held that charging of late fee u/s 234E is not maintainable even if the assessee files TDS returns belatedly and the AO issues intimation u/s 200A of the Act after 01.06.2015 charging late filing fee u/s 234E.
Since the facts before us are identical to one as decided by the Co-ordinate Bench of the Tribunal, respectfully following the same, we are of the opinion that the demand of late fee is not maintainable even if the returns of the TDS were filed after 01-06-2015, the order charging late filing fee was passed after 01-06-2015. Hence, we set aside the order of Ld.CIT(A) and allow the Grounds raised by assessee.
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2019 (12) TMI 1323
Maintainability of application - initiation of CIRP - Corporate Debtor or not - Condonation of delay of 14 days in filing appeal - HELD THAT:- Admittedly, the Appellant has not supplied any goods nor rendered any services; the Appellant is not an employee of the Corporate Debtor nor is Government Authority, therefore, it does not come within the meaning of Operational Creditor as defined under Section 5(20) r/w 5(21) of the Insolvency and Bankruptcy Code, 2016 and the application under Section 9 of the I&B Code was not maintainable as held by the Adjudicating Authority.
The delay of 14 days in preferring the appeal is condoned - the appeal is dismissed.
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2019 (12) TMI 1322
Possession of machinery - whether plant is in possession of the Janata Sahkari Bank Limited and they have put it up for auction and that respondent No. 2 has submitted bid in that process? - HELD THAT:- As per explanation below Section 18 of Insolvency and Bankruptcy Code, 2016, the plant is owned by appellant and thus does not belong to the Corporate Debtor, and is thus owned by third party, i.e. The Appellant - the possession of the plant machinery shall be restored to the appellant through Janata Sahkari Bank Limited, Pune.
Appeal disposed off.
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2019 (12) TMI 1321
Jurisdiction - power of adjudicating authority to interfere with the decision taken by Committee of Creditors - Replacement of IRP - order on the application for replacement of IRP was passed on 08.11.2019, much after the application filed for liquidation by the IRP when IRP/RP become functus officio - section 33(1), 33(2), 33(3) of the IB Code - HELD THAT:- It is found that the Committee of Creditors passed resolution in its 3rd meeting dated 01.10.2019, wherein, COC voted in favour of the liquidation vide 100% voting. Since, the decision is taken by the Committee of Creditors, this Adjudicating Authority has no jurisdiction to interfere into the commercial wisdom of the Committee of Creditors.
The Application so filed by the Committee of Creditors is allowed - The moratorium declared under Section 14 of the 1B Code shall cease to have effect from the date of the order of liquidation.
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2019 (12) TMI 1320
Grant of Bail - offence under section 132(1)(b)(c)(1) of the GST Act - Evasion of GST - HELD THAT:- Keeping in view the magnitude of the economic offence said to have been committed by the petitioner and others causing huge loss to the State exchequer, posing grave threat to the new regime of GST aimed to achieve rapid growth in trade and commerce in the country, at this stage when the investigation of the case is in progress and many more facts in relation to the commission of such well planned and designed to economic offence with all the expertise are likely to be unearthed; this is not a fit case for grant of bail to the petitioner.
Petition dismissed.
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2019 (12) TMI 1319
Validity of Second Marriage during the subsistence of the first marriage - lack of evidence - offences punishable under Sections 493, 494, 120B and 506(II) IPC - HELD THAT:- Unfortunately, the High Court put the cart before the horse and held that the appellant had not produced any evidence to prove the entry in the Government Gazette though it is a relevant fact under Section 35 of the Indian Evidence Act. Much before the case could reach the stage of trial, the High Court shut the door for the appellant and preconcluded the issue as though there was no evidence at all. This is completely contrary to law - A look at the complaint filed by the appellant would show that the appellant had incorporated the ingredients necessary for prosecuting the respondents for the offences alleged. The question whether the appellant will be able to prove the allegations in a manner known to law would arise only at a later stage.
Appeal allowed.
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2019 (12) TMI 1318
TP Adjustment - prior period income of the company in the software development and ITeS segment for determination of ALP - HELD THAT:- There is no dispute that the amount is the prior period income relevant to the assessment year 2009-10. All the expenses relating to this income had already been accounted for in the earlier assessment year 2009-10. Being so, this amount cannot be considered as operational income of the current assessment year 2010-11. Being so, the DRP is justified in observing that the TP study was undertaken of a particular year, in order to compare Arm’s Length Margin based on independent comparables considering the fact that the operating cost of the income pertaining to prior period was debited in the preceding year and the prior period income cannot be treated as part of the operating revenue of subsequent year. Hence, this ground of appeal of the assessee is rejected.
Determination of arm’s length by the TPO in relation to the software development services segment - Comparable selection - HELD THAT:- Larsen &Toubro Infotech Ltd. is functionally different from the assessee company and also there is significant onsite services. It was observed that there is no segmental data available coupled with L & T Infotech Ltd. is having huge brand value. Hence, it cannot be compared with the assessee company.
iGATE Global Solutions Ltd exclusion - Against this comparable, the assessee has not raised any objection before the DRP. Hence, this issue does not arise out of the direction of the DRP. Accordingly, this ground of appeal of the assessee is rejected.
Aftec Limited exclusion - As this issue does not arise from the direction of the DRP or the order of the TPO. Against this comparable, the assessee has not raised any objection before the DRP. Hence, this issue does not arise out of the direction of the DRP. Accordingly, this ground of appeal of the assessee is rejected.
Determination of ALP in relation to the ITeS segment - Inclusion of comparable - HELD THAT:- Informed Technologies India Ltd. is not functionally comparable with the assessee company which is engaged in KPO services. As seen from paper book pg. no.1085, the employee cost ratio was low at 29.93% of total operating income as compared to 59% and onsite expenses was at 13.21% of operating cost. By placing reliance on the on the decision of the Tribunal in the case of Aptara Technologies Pvt. Ltd. [2016 (5) TMI 1404 - ITAT PUNE] we direct the A.O./TPO to exclude this company from the list of comparables.
BNR Udyog Ltd is engaged in medical transcription, construction and financial activities as against the assessee’s activity which is software development and information technology enabled services. Being so, it is not functionally comparable with the assessee’s company. The turnover of BNR Udyog Ltd. was only INR 1.45 crores which is less than 10 times of the assessee’s turnover of INR 29.78 crores. Further, related parties transactions carried on by BNR Udyog Ltd. is very significant. We are inclined to direct the Assessing Officer to exclude this company from the list of comparables.
Accentia Technologies Ltd.company is engaged in medical transcription, medical coding and billing and receivable management services as against the assessee’s business of software development and providing information enabled services. No segmental data is available and the company has considerable intangible assets coupled with onsite activity which is 13.79% of the total operating cost. Further, the company had undergone business restructuring during the F.Y. 2009-10 and amalgamation with Asscent Infoserve Private Limited and figures for FY 2009-10 are inclusive of figures of amalgating company - we direct the Assessing Officer/TPO to exclude this company from the list of comparables.
Disallowance of deduction u/s. 10B - alternative claim u/s. 10A - HELD THAT:- As decided in he case of CIT vs. Flytxt Technology (P) Ltd. [2017 (10) TMI 872 - KERALA HIGH COURT] Tribunal is only required to consider the questions of law arising from the facts which are on record, there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. Even if the contention raised by the learned Senior Counsel for the revenue that the power conferred on the appellants under Section 263 only authorised him to examine whether the order passed by the Assessing Officer is erroneous and prejudicial to the interest of the revenue, that restriction of power cannot affect the powers of the Tribunal which is bound to exercise under Section 254 of the Act. No reason to think that the Tribunal has committed an illegality by directing the Assessing Officer to decide the matter afresh duly adverting to the claim of the assessee for the benefit of Section 10A. - Decided in favour of the assessee.
Treatment of foreign exchange fluctuation gain or loss - As submitted that foreign exchange gain or loss must be considered as operating - HELD THAT:- As relying on M/S INFAC INDIA PRIVATE LIMITED [2018 (10) TMI 1814 - ITAT CHENNAI] we direct the Assessing Officer to exclude the gain or loss on account of foreign fluctuation from the operating expenses for computing the profit and loss. This ground of appeal of the assessee is partly allowed.
Allowance of working capital adjustment - DR submitted that working capital adjustment should not have been allowed for the reason that the assessee has negative working capital - HELD THAT:- As decided in Zafin Software Centre of Excellence Pvt. Ltd[2018 (5) TMI 1776 - ITAT COCHIN] the capital employed by the assessee, including the working capital, and that of comparable companies needs to be taken into consideration. Without comparing the working capital employed by the comparable companies and that of the assessee, this Tribunal is of the considered opinion that there cannot be any transfer pricing adjustment.
In view of the above order of the Tribunal, we are inclined to direct the Assessing Officer to consider the working capital adjustment as computed by him while determining the ALP of international transactions of the assessee with its AEs.
Comparable selection - DRP had directed to exclude certain companies in the IT segment as they have substantial onsite revenues BUT had not fixed an upper filter for onsite revenue - HELD THAT:- We find force in the argument of the Ld. DR that the DRP ought to have fixed the upper filter for onsite revenue so as to exclude certain companies in ITeS segment. In our opinion, it is appropriate to fix the upper filter of 75% for onsite revenue so as to exclude certain companies
Since we have observed that upper filter for onsite revenue must be applied at 75%, the Assessing Officer is directed to examine the financials of each company with regard to upper filter for onsite revenue and exclude the same if the upper filter of onsite revenue is more than 75%. With this observation, we remit this issue with reference to the four comparables, i.e., Mindtree Ltd., Zylog System Ltd., Akshay Software Technologies Ltd. and LGS Global Ltd. to the file of the Assessing Officer for fresh consideration. This ground of appeal of the Revenue is partly allowed for statistical purposes.
FCS Software Solutions Ltd. - No infirmity in the order of the DRP in holding that this company cannot be retained as comparable since the company was engaged in 3 segments, i.e., IT Consulting, Education and infrastructure, IT Consultancy Division provided application maintenance for which no segmental information was available. It also engaged in R&D and had significant intangibles. Further, the company had undergone restructuring during the year. By placing reliance on the decision of Barclays Technology Centre India Pvt. Ltd. [2017 (9) TMI 1831 - ITAT PUNE] we direct the Assessing Officer/TPO to exclude this company from the list of comparables.
Sasken Communications Technologies Ltd. company cannot be retained as comparable since it was engaged in software products and the company had inventories amounting to ₹ 1.66 crores which indicated that the company is not a purely software development company. Further, the company had undergone restructuring during the year and it was engaged in R&D and technology absorption and had significant intangibles. Thus we direct the Assessing Officer/TPO to exclude this company from the list of comparables.
Eclerx Services Ltd s engaged in IT enabled services which is nothing but KPO services. Being so, it is not functionally comparable with the assessee company when compared to the services rendered by the assessee company. Even otherwise it fails on account of turnover filter and on account of related party transactions which is at 14.77% and incurred onsite expenses of 16.60%. Being so, the DRP is justified in excluding this company from the list of comparables. Accordingly, we direct the Assessing Officer/TPO to exclude this company from the list of comparables. This ground of appeal of the revenue is dismissed.
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2019 (12) TMI 1317
The High Court of Delhi granted six weeks to the Petitioner to file a rejoinder. The case is listed for further hearing on 20.07.2020.
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2019 (12) TMI 1316
Prima facie findings returned by the Authority for Advance Ruling in relation to the alleged tax avoidance - HELD THAT:- It is evident that the said findings are only prima facie, which means, that they are not final and binding, and that they have not been arrived at after detailed examination of the materials placed before the authority or upon consideration of the rival submissions.
It shall be open to the AO and the other statutory authorities to arrive at their own findings upon appreciation of the evidence and the materials placed on record and they should be not bound by the prima facie findings. While so observing, we also make it clear that we have not ourselves examined the merits of the said prima facie findings returned by the authority on the aspect of the tax avoidance.
Issue that remains to be determined is whether the petitioner would be entitled to the benefit of the Indian-Mauritius Double Taxation Avoidance Treaty, and consequently to refund of tax deducted and paid by the purchaser of the shares in the year 2011. He, therefore, submits that the assessment proceedings may be expedited.
Mr. Bhatia, Sr. standing counsel who appears on advance notice states that assessment gets time barred on 31st December, 2020. We hope and expect that the AO would expedite the assessment proceedings and would pass the assessment order preferably, on or before, 30.06.2020, subject to the petitioner co-operating in the assessment proceedings and not taking any adjournments.
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2019 (12) TMI 1315
Royalty - Payments received by the assessee for sale of specialized software and maintenance and support services (including upgrades) - proposed to tax the same at 10% as per clause 2 of Article 12 of the India-Finland tax treaty - HELD THAT:- End user customers by entering into a maintenance agreement could access and download the updates offered by the assessee. As the payments received by the assessee towards distribution of sub-releases and main releases were also for a right to provide a copyrighted article i.e software updates, which was akin to the amounts received for distribution of the specialized off-the-shelf software products, and not for any right to use the copyright embedded in the said copyrighted article (i.e software products), therefore, the same too in our considered view cannot be construed as “royalty‟ income, and would be the “business income‟ of the assessee. On a similar footing, we find, that as per the distributors agreements, it was the responsibility of the distributors to resolve the end user customers queries. In case, the distributors would require assistance on issues as regards functionalities, trouble shooting and verifying error situations, the assessee would provide the same.
The aforesaid queries would be resolved via e-mails or telephone calls by the employees of the assessee based in Finland. In our considered view, as the payments received by the assessee from rendering of the maintenance and support services does not fall within the scope and gamut of the definition of “royalty‟ in Article 12 of the India-Finland tax treaty, therefore, the payments received by the assessee for providing such support services cannot be held as “royalty‟ in the hands of the assessee.
Amount received by the assessee from its distributors for sale of specialized software and maintenance and support services (including upgrades) cannot be held as being in the nature of “royalty‟ as per Article 12 of the India-Finland tax treaty. Grounds of appeal allowed in terms of our aforesaid observations.
Levy of interest u/s 234A - HELD THAT:- Levy of interest u/s 234B has been challenged. As the calculation of the interest liabilities would be consequential to the determining of the tax liability of the assessee, if any, therefore, the same is being restored to the file of the A.O
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2019 (12) TMI 1314
Cash Withdrawals after approval of IRP - management of Corporate Debtor after admission of Section 9 application is with the IRP/RP - HELD THAT:- Considering the submissions made and serious objections that the learned Counsel for the IRP is raising and considering the fact that the order dated 23.10.2019 was passed by Three Judge Bench headed by Hon’ble Chairperson, considering the gravity and seriousness of the matter, we direct the Registry to place the matter before the Hon’ble Chairperson to constitute appropriate Bench. The matter may be re-listed before the Bench as the Hon’ble Chairperson may direct. Tentatively, we post the matter to 6th January, 2020.
List the appeal on 6th January, 2020 before Bench as may be directed by Hon’ble Chairperson.
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2019 (12) TMI 1313
CIRP Process - cash withdrawals without prior approval of the IRP - HELD THAT:- The Appellant and Deepak Daga may file Reply. If the Directors are unable to show prior approvals, it would be taken as a serious act - If the Directors of the Corporate Debtor are unable to show prior approval with regard to any of the impugned withdrawals, the Directors should in the alternative say as to why we should not invoke provisions of Section 74 of IBC, apart from why contempt proceedings should not be initiated.
On the next date, the Appeal as well as the IA No.3878/2019 filed by the IRP will be taken up together for hearing.
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2019 (12) TMI 1312
Effect of section 92BA as omitted by Finance Act, 2017 w.e.f. 01.04.2017 - effect of repeal of a statute vis-a-vis deletion/addition of a provision in an enactment and its effect thereof - TP Adjustment - AO made a reference to TPO u/s 92CA to determine arms length price as the assessee had entered into specified domestic transaction and on the ground it was covered u/s 92BA - contention for revenue that tribunal was not justified in arriving at a conclusion that Clause (i) of section 92BA which had been omitted w.e.f. 01.04.2017 would be applicable retrospectively by presuming the retrospectivity, particularly when the statue itself explicitly stated it to be prospective in nature - HELD THAT:- On perusal of records in general and order passed by tribunal in particular it is clearly noticeable that Clause (i) of section 92BA of the Act came to be omitted w.e.f. 01.04.2019 by Finance Act, 2014. As to whether omission would save the acts is an issue which is no more res intigra in the light of authoritative pronouncement of Hon'ble Apex Court in the matter of Kolhapur Canesugar Works Ltd. v. Union of India [2000 (2) TMI 823 - SUPREME COURT] whereunder Apex Court has examined the effect of repeal of a statute vis-a-vis deletion/addition of a provision in an enactment and its effect thereof.
In the matter of General Finance Co. v. ACIT [2002 (9) TMI 3 - SUPREME COURT] which judgment has also been taken note of by the tribunal while repelling the contention raised by revenue with regard to retrospectivity of section 92BA(i) of the Act. Thus, when clause (i) of Section 92BA having been omitted by the Finance Act, 2017, with effect from 01.07.2017 from the Statute the resultant effect is that it had never been passed and to be considered as a law never been existed. Hence, decision taken by the Assessing Officer under the effect of section 92BI and reference made to the order of Transfer Pricing Officer-TPO under section 92CA could be invalid and bad in law.
It is for this precise reason, tribunal has rightly held that order passed by the TPO and DRP is unsustainable in the eyes of law. The said finding is based on the authoritative principles enunciated by the Hon'ble Supreme Court in Kolhapur Canesugar Works Ltd. [2000 (2) TMI 823 - SUPREME COURT]. We are of the considered view that first substantial question of law raised in the appeal by the revenue in respective appeal memorandum could not arise for consideration particularly when the said issue being no more res integra.
Disallowance u/s 14A r.w.r. 8D - Whether there was no exempted income and as such disallowance could not have been made even though said provision was rightly invoked by AO, and as such setting aside the disallowance is erroneous? - HELD THAT:- We find from the order of the Tribunal that issue relating to the deletion of disallowance made by the Assessing Officer has been remitted back to the Assessing Officer which finding is based on factual aspects which would not call for interference by us, that too, by formulating substantial question of law. The Assessing Officer has to undertake the exercise of factual determination. As such, without expressing any opinion on merits with regard to question No. 2 formulated by the revenue in the respective appeals
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2019 (12) TMI 1311
Bidding Process - Approval of Resolution Plan - initiation of CIRP - common negotiations between parties - HELD THAT:- Since the provisions of Section 12 have now been amended, and as per 2nd proviso CIRP is mandatorily be completed within period of 330 days and the said 330 days only would expire in the case in hand only on 21st January,2020, it appears to us that this is a fit case to issue direction to COC to reconsider all the three resolution plans by giving a reasonable opportunity to revise their respective bidding offers so as to ensure maximization of the value of the assets of the corporate debtor. The offer found accepted by the COC is 89.86 crores.
The liquidation value is 76.37 crores. On the other hand fair value assessed is 136.12 crores. So an offer enhancing 102 crore cannot be ignored. It cannot be ruled out if an open bidding is permitted it may go high beyond ₹ 102 Crores. In the set of circumstances brought before us and considering the fair value assessed as to the assets of the corporate debtor which is a leading mall in the city in operation, we hope it would fetch more value if the COC have had an open bidding among the resolution applicants - It is settled position of law as to the discretionary power of the COC to take the best decision in the interest of maximisation of asset value. We are also unable to see the recording of deliberations regarding the feasibility and viability of the plan selected among the three Plans in the minutes.
The plan before us is not adhering to the object of the Code i.e. maximising the value of assets and balancing the interests of the stakeholders. There is unjust discrimination in regard to choosing one out of Three Resolution Applicants. In view of the above said factors, the plan submitted for approval is to be returned for submitting a revised plan enhancing the resolution bid amount if the resolution applicant wishes to improve its bid. Since the 330 period of CIRP would expire on 21.01.2020 in the instant case, the COC has to complete the process within a short span of period.
The resolution plan of HI bidder Shrawan Kumar Agarwal is to be returned to RP forthwith.
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2019 (12) TMI 1310
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- The applicant has placed on record all the invoices, stating that the respondent itself had acknowledged the said invoices. Once the debt is shown as due, it is for respondent to prove that there are no outstanding dues to be paid to the applicant. The respondent has time and again acknowledged its liability to pay the debt. However, no such payment has been made by the Respondent - The applicant has attached the copy of Bank statements in compliance of the requirement of Section 9(3)(c) of the IBC 2016.
The present application is complete and the Operational Creditor is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt, and fulfillment of requirements under section 9(5) of the Code. Hence, the present application is admitted - The registered office of respondent is situated in New Delhi and therefore this Tribunal has jurisdiction to entertain and try this application.
Application admitted - moratorium declared.
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2019 (12) TMI 1309
Revision u/s 263 - Assessment u/s 153A - revision proceedings in PCIT’s order under challenge on the ground that the AO has wrongly accepted the assessee’s section 54 & 54F deduction claim - HELD THAT:- PCIT’s assumption of revision jurisdiction. Hon’ble apex court’s landmark decision in Malabar Industries Co. vs. CIT [2000 (2) TMI 10 - SUPREME COURT] holds that before an assessment is sought to be revised in proceedings u/s 263 of the Act, the same has to be erroneous as well as caused prejudice to interest of the Revenue; simultaneously.
An assessment cannot be termed as erroneous causing prejudice to interest of the Revenue in case the AO adopts one of the possible view. Reverting back to impugned regular assessment, we notice that the Assessing Officer had claimed yet another regular assessment on 30.11.10 invoking section 153A/143(3) proceedings whilst assessing the total income of ₹ 18,62,400/- only. That being the case, it is sufficiently clear that the impugned second assessment dated 25.12.16 pertained to the search dated 05.08.14 only qua the alleged incriminating material found/seized.
It emerges from the case records that the assessee had claimed the impugned section 54 and 54F deduction relief at the first instance in former assessment. This issue nowhere formed subject matter of deduction in the latter assessment therefore. Since the AO could not have even taken up the assessee’s above deduction claim during latter assessment, the PCIT has erred in law and on facts in terming the same as erroneous causing prejudice to interest of the Revenue. We therefore restore the Assessing Officer’s regular assessment dated 25/30.12.16 and reverse the PCIT’s revision directions under challenge. - Decided in favour of assessee.
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9911796707
