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Showing 61 to 80 of 1713 Records
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2020 (2) TMI 1653
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Non-Performing Assets - existence of debt and dispute or not - HELD THAT:- The loan what ought to have been a secured loan of the banker, has become unsecured loan. And by no means the applicant banker could have recovered the lawful dues. The applicant had registered FIR against the Corporate Debtor and its Directors in respect of the illegal cheating of the Corporate Debtor under Section 120B/420 of Indian Penal Code (IPC) and dated 25th April, 2015, same is pending. The cheques which was paid towards the repayment of the loan, were dishonoured by the respondent's banker with an endorsement "funds insufficient". Hence, the applicant bank filed CS No. 00007/2015 before Chief Metropolitan Magistrate at Calcutta against the Corporate Debtor and its Directors, the same is pending on the file of the Hon'ble District Court and another in 13th M.M. Court CC no: 418064/2014 the same are pending on the file of the Hon'ble District Courts.
The debts and the default are proved beyond reasonable doubt.
The application filed by the Financial Creditor under Section 7 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, M/s. Emerald Mineral Exim Private Limited is hereby admitted - Moratorium declared.
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2020 (2) TMI 1652
Liquidation of Corporate Debtor - section 33 of IBC - HELD THAT:- According to the RP, even after issuing notice, no response was obtained from the above parties. RP has also noted that Sabkaa Payments Limited is the subsidiary company of the Corporate Debtor and the suspended directors of the Corporate Debtor are directors in the said company - The Resolution Professional further submitted that no positive response was received with regard to his efforts of a possible resolution plan of the Corporate Debtor. He has also noticed that the Corporate Debtor was under severe financial stress since the last 2 years and the Company had virtually no employees and no infrastructure to revive its operations.
The Corporate Debtor M/s.Achariya Techno Solutions (India) Pvt Ltd is hereby put under liquidation with immediate effect under Section 33(2) of IBC, 2016 - application allowed.
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2020 (2) TMI 1651
Deduction u/s 54 - interpretation of the word “a residential house” - investment in one of the properties, but not in two differently located house properties - assessee made investment in one of the properties, but not in two differently located house properties - deduction denied as investment made in second house property by the appellant as deduction is allowable with respect to investment made only in one residential property - HELD THAT:- Hon’ble Madras High Court in Tilokchand & Sons [2019 (4) TMI 713 - MADRAS HIGH COURT] has held that the dislocation of newly purchased residential houses will not alter the position for interpretation of the word “a residential house” to the effect that it may include more than one residential houses. It also considered the impact of the amendment by Finance (No. 2) Act of 2014 with effect from 1.04.2015 which could operate only prospectively from Assessment Year 2015-16. The present case before us is prior to that.
Further the Hon’ble High Court has also considered the decision cited by the learned Assessing Officer in para No. 13 of that order. In view of this we hold that assessee is also entitled to deduction under Section 54 of the Act in both the house properties even though they are geographically distantly located in the same city. Further the learned CIT (Appeals) has also failed to appreciate that amendment with effect from Finance Act, 2014 is not a clarificatory amendment and does not operate retrospectively, but prospectively. In view of this both the grounds of appeal of the assessee are allowed.
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2020 (2) TMI 1650
Bogus and unexplained cash credit - HELD THAT:- Having scrutinized the individual creditors, CIT(A) deleted some of additions where he found that the assessee has submitted documents confirmation and proof in respect of sundry creditors. For balance creditors wherein the CIT(A) noticed that the assessee has failed to file a requisite documents statement and confirmation and proof of existence of sundry creditors, he sustained the addition made by AO. We have gone through the detailed reasoning given in the appellate order CIT(A)’s order and we note that the conclusion reached by the ld. CIT(A) need not to be interfered therefore we confirm the addition
Addition relating to inflated sundry liabilities which has been confirmed by the CIT(A) as the assessee has failed to file the reconciliation of the sundry liabilities before the lower authorities - We have gone through the findings of the assessment order and findings of the appellate order. CIT(A) pointed out that assessee has not filed the reconciliation and confirmation of excess sundry liabilities. We are of the view that this issue should be remitted back to the file of the AO with the direction to the assessee to file the reconciliation and confirmation of excess sundry liabilities before the AO. AO is directed to adjudicate the issue in accordance to law.
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2020 (2) TMI 1649
"Mark to market" loss - whether the exchange difference arising on the loan transaction with foreign subsidiary company could be considered as a notional loss? - HELD THAT:- We find that the Revenue had not understood the transaction carried out by the assessee in the instant case. This is a simple case of loan given by the assessee to its foreign subsidiary in the earlier years and at the time of re-statement of the said loans in earlier years at the exchange rate prevailing at the end of the year, it had resulted in exchange gain which has been duly offered to tax by the assessee voluntarily and assessed as such by the Revenue in the scrutiny assessment proceedings completed u/s. 143(3).
During the year under consideration, when the said loans were received back by the assessee and the assessee had actually incurred exchange loss, the revenue had considered the same as transaction carried out in forex derivatives and treating the same as "mark to market" loss, which in our considered opinion, is against the facts of the assessee and material available on record. We find that the issue is squarely covered by the decision of Hon'ble Supreme Court in the case of CIT vs. Woodward Governor India (P.) Ltd. [2009 (4) TMI 4 - SUPREME COURT] and respectfully following the same, we hold that the exchange fluctuation loss incurred by the assessee during the year under consideration is a regular revenue loss and is squarely allowable as deduction. Accordingly, the grounds raised by the assessee are allowed.
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2020 (2) TMI 1648
Dishonor of Cheque - Whether the application moved by the accused under Section 391 of Cr.P.C., to lead additional evidence is maintainable or not? - HELD THAT:- The reading of Section 391 of Cr.P.C., as well as the law laid down by the Hon'ble Supreme Court in the aforesaid judgments clearly leads to form an opinion that the legislative intent in enacting Section 391 appears to be the empowerment of the appellate court to see that justice is done between the parties and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in allowing further evidence under Section 391. But, it is also clear that such power must be exercised "sparingly" and only in "exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice". That being the position, this Court is of the view that the application filed by the revisionist/accused under Section 391 of Cr.P.C., is maintainable.
In the case at hand, initially the revisionist had moved an application under Section 311 of Cr.P.C., which the revisionist, by way of another application, prayed to be read as moved under Section 391 of Cr.P.C. This Court has carefully perused the said application. The revisionist has failed to even plead the necessary ingredients of Section 391 Cr.P.C. There is no averment in the application that the document i.e. specimen signature sought to be relied upon by the revisionist is necessary in the present case. Further, there is no pleading that not summoning the specimen signatures from the bank for verification by handwriting expert in the appeal would lead to failure of justice.
This court is of the considered view that the revisionist had not filed any additional evidence by moving an application under Section 391 Cr.P.C. Though he could not succeed in this effort but he became successful in delaying the disposal of appeal - Revision dismissed.
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2020 (2) TMI 1647
Disallowance u/s 14A r.w. Rule 8D Disallowance of proportionate interest (out of interest on Working Capital Loan) - HELD THAT:- As the assessee is already having its own surplus fund much more than the investment made and it can be presumed that investments have been made out of own funds and there is no need of making any Disallowance of expenditure in respect of interest. Thus the allocation of interest is not warranted and the Disallowance deserves to be deleted.
Disallowance of proportionate interest (out of interest on Working Capital Loan) - Rule 8D is not mandatory, the Assessing Officer must record his satisfaction that he is not satisfied with the correctness of the claim of the assessee in respect of such expenditure for cogent reasons. Satisfaction of the Assessing Officer has to be arrived at, having regard to the accounts of the assessed as enunciated in the case of Maxopp Investment Ltd. [2018 (3) TMI 805 - SUPREME COURT] and Godrej Boyce v DCIT [2017 (5) TMI 403 - SUPREME COURT]
From the records or from the arguments of the ld. DR, we find that the invocation of sub-Section (2) of Section 14A is conspicuously absent and hence re-computation of the Disallowance is not legally valid. And considering the investments in mutual funds and in shares are through PMS, hardly any expense is incurred. As such the estimated Disallowance made by assessee suo moto is reasonable as it meets the expenses on account of STT as well as in direct expenses. Hence, we hereby hold that no additional Disallowance is called for by invoking Rule 8D. - Decided in favour of assessee.
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2020 (2) TMI 1646
Condonation of delay of 201 days in filing the Company Petition - unavoidable causes or not - seeking for approval of the Scheme of Amalgamation - HELD THAT:- Perusal of the Application shows in paragraph '4', which is the cause / reason as pointed out by the Counsel for the Applicant for the delay in filing the Petition. However, perusal of the circumstances resulting in the delay in filing the Company Petition has failed to clearly explain the delay caused in filing of the Company Petition - the reasons given cannot be considered as unavoidable causes in filing the Company Petition.
Petition dismissed.
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2020 (2) TMI 1645
Disallowance u/s. 14A r.w.r. Rule 8D - similar addition while computing book profit u/s. 115JB - CIT-A deleted the addition - HELD THAT:- It is undisputed fact that assessee has neither earned any exempt income nor claimed any exempt income during the year under consideration. On perusal of the decision of ld. CIT(A), it is noticed that the impugned addition has been deleted holding that assessee has not earned any exempt income which based on similar facts discussed in appellate order in the case of the assessee itself for assessment year 2014-15. While deleting the aforesaid addition, the ld. CIT(A) has also placed reliance on the decision of Hon’ble Gujarat High Court in the case of Corrteck Energy Pvt. Ltd [2014 (3) TMI 856 - GUJARAT HIGH COURT] on identical disallowance u/s. 14A wherein it has been held that where the assessee has not made claim for exemption of any income from payment of tax no disallowance could be made u/s. 14A of the act.
Also noticed that ld. CIT(A) has also held that disallowance u/s. 14A does not call for addition to book profit u/s. 115JB of the act after following the decision of ACIT vs. Vineet Investment Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] as held that expenditure incurred to exempt income not to be added for computing book profit u/s. 115JB of the act. Considering the above facts and judicial findings, we do not find any reason to interfere in the decision of ld. CIT(A) - Decided against revenue.
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2020 (2) TMI 1644
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- The balance sheet of the Corporate Debtor wherein the Corporate Debtor admitted its liability toward Bankers and to the financial institutions who assigned the debt to the Financial Creditor, which was signed before the expiry of 3 years from the date of default ie. on 29th May 2017 is an acknowledgment of the debt found due and payable by the Corporate Debtor and held that the claim is not barred by limitation. The Financial Creditor having succeeded in proving that the application filed under section 7 of the Code is not barred by law of limitation as attempted to be proved on the side of the Financial Creditor, and being satisfied that this application is complete, by satisfying all requirements under section 7(5) of the Code, that the default as alleged has occurred and that the insolvency professional proposed by the Financial Creditor has certified in his Form 2 that no disciplinary proceedings are pending against him, this application is liable to be admitted.
Application admitted - moratorium declared.
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2020 (2) TMI 1643
Right to vote - Fundamental Right or Statutory Right - Section 62(5) of Representation of the People Act, 1951 is violative of the basic structure of the Constitution or not - HELD THAT:- Section 62(5) is constitutionally valid. The classification of the persons who are in jail and who are out of jail is a valid classification and it has a reasonable nexus with the objects sought to be achieved.
In the case of S. RADHAKRISHNAN VERSUS UNION OF INDIA (UOI) AND ORS. [1999 (8) TMI 1013 - SUPREME COURT] it was held that Section 62(5) of the Act is constitutionally valid and right to vote is not a fundamental right but it is a statutory right and it can be made limited by the statute.
Petition dismissed.
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2020 (2) TMI 1642
TP Adjustment - business model of assessee - Comparable selection - functions of assessee was to develop software/providing software services, as was in previous year. Ld.TPO observed that in previous year, assessee chose TNMM as most appropriate method in transfer pricing analysis, whereas for current year, though there is no change in business scenario, and that assessee was providing same kind of services to both AE and non-AE, CUP has been used - HELD THAT:- Admittedly, ongoing through agreements entered into by assessee at page 659 of paper book, it is clear that assessee has 2 segments being AE segment and non-AE segment. Associated enterprises are subsidiaries of assessee, and in order to have the ease of business, associated enterprises enter into contract with 3rd parties for providing services. From these agreements it is clear that assessee bares all risk related to services rendered, whereas subsidiary AE’s only. On the contrary, authorities below assumed that assessee is working on a cost-plus model with associated enterprises and that associated enterprises undertakes all risk related to service provided by assessee.
TPO considered assessee to be a contract service provider, assuming minimal risk, which is contrary to the business model of assessee. We agree with contention of Ld.AR that Ld.TPO conducted TP analysis on erroneous understanding of business model of assessee, and comparables selected by Ld.TPO cannot be looked into.
Adjustment made by Ld.AO on the proposed adjustment by Ld.TPO should be revisited de novo. Accordingly, we set aside all issues raised by assessee on transfer pricing issues to Ld.AO/TPO. LD.AO/TPO is directed to carry out transfer pricing analysis having regard to the business model of assessee. It is also directed that comparables selected should be functionally similar with assessee, having similar business model like assessee.
Assessee is directed to produce all relevant documents to bring out its role in providing services to the parties situated outside India. Ld.TPO is also directed to grand working capital adjustments in comparables in actual where ever necessary, for computing correct margins of comparables.
Disallowance u/s 14A - HELD THAT:- As per assessee did not have any exempt income during the year under consideration. Only dividend earned by assessee is from investment in foreign banks, which are subjected to tax. Based upon the submissions by both sides, we direct Ld.AO to call for necessary details for verifying the contentions of assessee, and if found correct to allow the claim as per law.
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2020 (2) TMI 1641
Exemption u/s 11 - assessee had given benefit to its employees by giving them priority in allotments as well as concessions in the prices of plots and, therefore, was hit by the provisions of section 13(3) - HELD THAT:- None of the core persons of the assessee Parishad got any preferential or concessional allotment of plots and the two persons who did get discount, are not either Trustees or Managers of the Parishad. It is the Department’s own case that the allotments purportedly in violation of section 13(3) of the Act have been made to the employees of the assessee Parishad. There is no rebuttal, however, to the assertion on behalf of the assessee that these employees are not acting in any Managerial capacity, so far as regards the discharge of their duties under the Parishad; and that the specific requirement of the section is concerning Managers and not employees.
Therefore, the assessee has a prima facie case in its favour and as such the balance of convenience is also in its favour. However, keeping in view the interest of justice to both the parties, we direct the assessee to deposit an amount of Rs.20 crores in two installments of Rs.10 crores each and the first installment is to be paid latest by 29th February, 2020 and the second installment is to be paid latest by 15th March, 2020. The appeal of the assessee is accordingly adjourned for hearing to 23rd March 2020. With these directions, we stay the outstanding demand for a period of six months from the date of this order or till disposal of the appeal, whichever is earlier, provided the assessee deposits the above noted amounts within the prescribed period.
Stay application of the assessee is allowed
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2020 (2) TMI 1640
Levy of service tax - members club - mutuality of interest - HELD THAT:- The exact issue was before the Supreme Court in STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT] where it was held that from 2005 onwards, the Finance Act of 1994 does not purport to levy service tax on members’ clubs in the incorporated form.
Petition dismissed.
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2020 (2) TMI 1639
Authority available to the Facilitation Council under the Micro, Small and Medium Enterprises Development Act, 2006 to make a reference to arbitration in terms of Section 18 thereof - small enterprise within the meaning of Section 2 (m) of the Act of 2006 - payment to the third respondent herein in connection with an agreement to set up a demineralised water plant at Raghunathpur - Invocation of jurisdiction of the Micro and Small Enterprises Facilitation Council, the first respondent herein, to recover the dues from the appellant.
HELD THAT:- In the present case, the original agreement between the appellant and the third respondent contained an arbitration clause. It is asserted on behalf of the appellant that once there is an arbitration agreement between two parties, irrespective of whether the other party is a small or micro enterprise, there is no room for the legal fiction envisaged in Section 18(3) of the Act of 2006 to operate. It is the further submission of the appellant that a legal fiction operates when such a position as is sought to brought about by the legal fiction does not actually exist; when the parties themselves have an arbitration agreement, the legal fiction can have no manner of operation.
The essence of the Act of 2006 is captured in Chapter V thereof which is intituled as "Direct payments to Micro and Small Enterprises". Section 15 is the first provision under Chapter V of the Act. Section 15 obliges a buyer who has agreed to obtain goods or services from a supplier as defined in Section 2(n) of the Act to make the payment therefor before the date agreed in writing by the parties to the transaction or, when there is no such agreement, before the appointed day - when an arbitral reference is taken up by the Council or a reference made for arbitration to some other body under Section 18(3) of the Act of 2006, the legal fiction springs to life: that is to say, the parties to the dispute are immediately deemed to have executed an agreement in terms of Section 7(1) of the Act of 1996 to refer such disputes to arbitration in accordance with the reference made by the Council.
It is the elementary that when the law requires something to be done in a particular manner, it must be done in such manner and in no other manner. Section 18(3) of the Act of 2006 commands that the arbitral reference may be taken up by the Council or the disputes may be referred to arbitration by any institution or centre involved in alternate dispute resolution - the reference made by the Council under Section 18(3) of the Act of 2006 in this case has to be the mode of adjudication of the disputes between the appellant and the third respondent pertaining to the third respondent's claim for recovery of the amount due in respect of the Raghunathpur contract.
The appeal is found to be completely devoid of merit - Appeal dismissed.
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2020 (2) TMI 1638
Disallowance u/s 35(1)(ii) - deduction claim qua contribution made to M/s School of Human Genetics & Popular Health on the ground that the same turned out to be a mere accommodation entry provider than carrying out any such scientific research and development - HELD THAT:- As decided in Narbheram Vishram [2018 (11) TMI 1314 - ITAT KOLKATA] we direct the ld AO to grant deduction u/s 35(1)(ii) as claimed by him under section 35(1)(ii) of the Act in respect of the amounts of donations made to two Institutions viz. ‘Matrivani Institute Experimental Research & Education’ and ‘The School of Human Genetics and Population Health’. - Decided in favour of assessee.
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2020 (2) TMI 1637
Dishonor of Cheque - time limitation for deposit of the amount - Is it legal and proper to order that deposit of amount under Section 148(1) of the Negotiable Instruments Act, 1881 shall be made within a period of less than sixty days? - HELD THAT:- Section 148(1) of the Act empowers the court, in which the accused has filed an appeal against conviction under Section 138 of the Act, to direct him to deposit such sum which shall be a minimum of 20% of the amount of the fine or compensation awarded by the trial court. Section 148(2) of the Act provides that, the amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the court on sufficient cause being shown by the appellant - Issuing a direction under Section 148(1) of the Act to deposit a minimum of 20% of the fine amount or compensation amount is mandatory. Such an order can be passed by the appellate court on an application filed by the original complainant or on the application filed by the appellant/accused under Section 389 Cr.P.C to suspend the sentence. Exercise of the power under Section 148(1) of the Act by the appellate court is the rule. Non-exercise of the power under Section 148(1) of the Act can only be under very exceptional circumstances.
The petitioner was liable to deposit the amount only on or before the date 22.02.2020. The period provided under the statute is now over. As per Section 148(2) of the Act, the petitioner is entitled to seek a further period of thirty days for depositing the amount on showing sufficient cause. In the instant case, as per Annexure-III order, the appellate court has already exercised the power under Section 148(2) of the Act to grant extension of time for a further period of thirty days - it is only proper to grant the petitioner a further period of thirty days from 22.02.2020 for complying with the direction contained in Annexure-II order for depositing the amount. There is no sufficient ground for granting a further period of three months to the petitioner for depositing the amount.
The petition is allowed in part. The petitioner is granted a period of thirty days from the date 22.02.2020 for depositing the amount in compliance with Annexure-II order.
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2020 (2) TMI 1636
Addition on difference in the receipts shown in the audit report and form No. 26AS - assessee has not maintained consistent policy of accounting - CIT(A) has accepted the contentions of the assessee that difference in the receipts shown in the audit report and form No. 26AS were duly reflected in the previous and subsequent assessment years and thus offered to tax - HELD THAT:- As in this case there were apparently some differences in the total receipt as per form 26AS and receipts as per P&L Account. The assessee filed reconciliation before the AO submitting that all these receipts were duly accounted for from 2010-11 onwards to 2014-15 and all the ledger accounts were also filed of M/s. Bartec India Pvt. Ltd., Engineer India Ltd., Mangalore Refinery Petro Chemical Ltd. and M/s. Dcore Exports Ltd. in support of the reconciliation. We note that the only basis on which the AO rejected the reconciliation of the assessee is that the assessee has not properly explained the items of difference and the AO has merely based his conclusion on the basis of audit reports.
CIT(A) has recorded a finding that note in the audit report was general in nature and does not bear any relevance to the facts and circumstances of the case. CIT(A) noted that the receipts were offered to tax either in the preceding or subsequent years whereas TDS was claimed in the year of deduction.
CIT(A) has noted that in the ledger accounts of all the parties, all receipts were properly shown and offered to tax and accordingly held that the receipt which is offered to tax in the preceding and subsequent years could not be brought to tax in the current year as it would amount to double taxation - we are of the view that the assessee has duly explained these differences and there is in fact no difference in accounting for the receipts by the assessee. Thus, we do not find any fault or infirmity in the order of Ld. CIT(A) and accordingly, the order is upheld by dismissing the appeal of the Revenue.
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2020 (2) TMI 1635
Maintainability of appeal - HELD THAT:- Since, impugned order does not decide the rights of the parties and no prejudice can be claimed by the Appellant, the Appeal is dismissed as being not maintainable. The Adjudicating Authority shall make an endeavour to decide the matter with utmost expedition.
Let a copy of this order be communicated to learned Adjudicating Authority.
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2020 (2) TMI 1634
Dishonor of cheque - insufficiency of funds - failure to repay borrowed amount - Section 138 of the Negotiable Instruments Act - acquittal of accused - it was held by the High Court that All the ingredients of S.138 of the Act stand duly proved in the case at hand, as such, this Court finds no occasion to interfere with the judgments/order of conviction and sentence recorded by learned Courts below, as such, same deserve to be upheld.
HELD THAT:- There are no need to interfere with the impugned order - SLP dismissed
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