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Showing 241 to 260 of 16576 Records

• 2021 (12) TMI 1289
  

  Employees’ contribution to PF and ESI which has been deposited beyond the due date prescribed under relevant Act and deposited within due date by filing the return on u/s 139(1) - DR contention is that as per sec.43B(b) of the Income-tax Act and explanatory notes to Finance Act 1983, that Employees’ Contribution was never intended to be covered by sec.43B - scope of amendment - HELD THAT:- We find no merit in the argument of the DR since the explanation as provided in Finance Act 2021 prescribes that the amendment in both sec.36(va) as well as 43B by inserting corresponding explanation that although impugned PF comes in the form of provision and the same is applicable from 1/4/2021 onwards only. In the present case we are concerned with the asst. year 2017-18 and the amended provision could not be applied retrospectively as it is only applicable w.e.f 1/4/2021. Being so no disallowance could be made by the AO in respect of PF/ESI paid within the due date of filing return of income. Though, it was beyond the date mentioned in the respective Act. - Decided in favour of assessee.

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• 2021 (12) TMI 1288
  

  Deduction u/s 80P(2)(a)(i) - entitlement to deduction u/s 80P(2)(a)(i) on interest income - HELD THAT:- Assessee has not claimed deduction of interest from bank under section section 80P(2)(a)(i) of the Income Tax Act, therefore, no disallowance should be made. However, the assessing officer made disallowance under section section 80P(2)(a)(i) of the Income Tax Act, on account of interest other than co-operative bank.

  As the assessee society had received interest other than from Co-op. Societies which was not claimed by the assessee but disallowed by the assessing officer. Therefore, we remit this issue back to the file of the assessing officer to examine whether assessee has claimed the deduction or not? If the assessing officer finds that assessee has not claimed deduction then in that situation the assessing officer should not make addition, hence, for statistical purposes, the additional ground raised by the assessee is treated to be allowed.

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• 2021 (12) TMI 1287
  

  Rejection of books of accounts - addition to the extent of 1.00 % of Gross Profit - HELD THAT:- AR simply made is submission that addition restricted by the ld. CIT(A) is on higher side and concluded his submissions in a single sentence. We find that even before ld CIT(A), the assessee only submitted that in one of the comparable companies in Hari Om Agro Products Pvt. Ltd., the ld.CIT(A) restricted addition to the extent of 0.5% and in case of Jalaram Cultivation addition was restricted to 1% by the ld.CIT(A). We find that no documentary evidence was furnished before ld CIT(A). In our view the ld. CIT(A), in a very reasonable manner restricted the addition to 1.00 % of total sale/turnover of assessee.

  Even now neither the copy of order in case of Hari Om Agro Products Pvt. Ltd. nor any other comparable company or the alleged audited accounts of the assessee is placed. At the addition cost of repetition, we may note that this appeal pending appeal for more than five years, the assessee failed to bring any evidence on record to substantiate their plea that their books result should be accepted. In view of the aforesaid discussion, we do not find any reason to interfere with the order of ld. CIT(A), which we affirm. In the result the ground No. 1 & 2 of the appeal is dismissed.

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• 2021 (12) TMI 1286
  

  Revision u/s 263 by CIT - addition of share premium - addition u/s 68 - CIT in second assessment/re-assessment order proposed to exercise his revisional jurisdiction - second round before the AO for de novo re-assessment, the second AO as per the direction of the First Ld. Pr. CIT conducted the reassessment proceeding - HELD THAT:- Second AO has conducted enquiry on the specific subject matter i.e. share capital and premium collected by the assessee-company (CASS items). Therefore, the finding of Second Pr. CIT that the Second AO has not conducted enquiry is incorrect and is flowing from suspicion only. And as discussed, the allegation/fault pointed out by the Second Ld. Pr. CIT that the Second AO failed to collect total facts also cannot be accepted for the simple reason that Ld. Pr. CIT has not spelt out in the impugned order what he meant by total facts or in the alternative when the assessee has discharged its onus, as required by the law in force in this AY 2012-13, then the Ld. Pr. CIT ought to have called for which ever additional documents/materials or issued summons or issued notices and collected those facts which according to Second Ld. Pr. CIT, the AO omitted to collect and then demonstrated that those actions/documents which he collected in that process gave result to a different finding of fact which will turn upside down the claim of the assessee and thus able to show that the actions/omission of AO in conducting the investigation was erroneous, which unfortunately is not the case before us.

  Second Pr. CIT has not carried out any such exercise or even spelled out in his impugned order, which all documents the second AO failed to collect for considering the total facts; and even if we presume he has conducted such an exercise, then he has not been able to bring out any adverse factual finding to upset the view of Second AO. So we find no merit in the vague allegation of second Pr. CIT that the second AO has not collected the full facts necessary to decide the issue of share capital & premium.

  Second Ld. Pr. CIT – 4 by passing the second revisional order dated 15.03.2019 has substituted the First Pr. CIT’s order passed u/s. 263 of the Act dated 28.03.2016 with his own order which he cannot do since the second assessment order/re-assessment of the Second AO dated 08.06.2016 was pursuant to the first revisional order of the First Ld. Pr. CIT and on the very same subject matter which inter alia was the issue flagged by CASS, which exercise since having been complied by the AO, brings into operation the doctrine of merger the subject matter i.e. share capital & premium collected by assessee company. Resultantly the second Ld. Pr.CIT, again cannot rake-up the same subject matter without the second Ld. Pr.CIT in the second revisional order spells out where the error happened to second AO as an investigator or adjudicator, which exercise the Second Ld. Pr.CIT has not done, so the second Ld. Pr. CIT cannot be permitted to again ask the AO to start the investigation in the way he thinks it proper on the very same subject on which merger has taken place by virtue of the order of First Ld. Pr. CIT. And if this practice is allowed, then there will be no end to the assessment proceedings meaning no finality to assessment proceedings and that is exactly why the Parliament in its wisdom has brought in safe-guards, restrictions & conditions precedent to be satisfied strictly before assumption of revisional jurisdiction.

  We find that the Second Ld. Pr. CIT without satisfying the condition precedent u/s 263 of the Act has invoked the revisional jurisdiction (second time), so all his actions are ab initio void.

  Pr. CIT has made a bald statement that the AO’s assessment order attracts Explanation 2(c) u/s. 263 of the Act. However, he failed to spell out in his impugned order how the action of AO while framing the assessment order is not in accordance to any order, direction or instruction issued by the Board under section 119 of the Act. So, the deeming fiction as envisaged in Explanation (2) u/s. 263 of the Act cannot be used to interfere with the order of AO. This action of Ld. Pr. CIT is bad for non-application of mind. - Decided in favour of assessee.

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• 2021 (12) TMI 1285
  

  Penalty levied u/s 271(1)(c) - Defective notice - non specification of charge - HELD THAT:- AO has neither mentioned in the assessment order nor in his Penalty notice as to whether the penalty is initiated for concealment of income or for furnishing inaccurate particulars of income. He has also not mentioned in the order that the penalty is initiated under explanation 5 of section 271(1)(c) of the Act. We find that the only words used in the Assessment order are, “It is found that the assessee has shown additional income of ₹ 24,00,000/- in the computation of income filed with the return, hence proceedings for penalty under section 271(1)(c) of the Act are to be initiated”. Further, the Final Show-cause notice issued on 29/12/2016 alongwith the Assessment order clearly mentions the words “Whereas in the course of proceedings before me for A.Y.2014-15, it appears that you have concealed the particulars of your income or furnished inaccurate particulars of such income”, and the AO has not stricken off the not applicable words

  We find that the AO has sent one printed form, wherein the specific finding of the AO as to whether he is initiating penalty for concealment of income or for furnishing inaccurate particulars of income is not mentioned. Further, the AO has also not mentioned that he intends to levy penalty under explanation 5 of Section 271(1)(c) and hence the said penalty U/s. 271(1)(c) is not justified and is directed to be deleted. Therefore, we direct to the delete the same. - Decided in favour of assessee.

  Penalty levied u/s 271AAB - Undisclosed income - HELD THAT:- Assessee has been able to explain the source of the alleged ‘undisclosed income’ may be relevant for final imposition of the penalty, however, for initiation of the penalty proceedings, the provisions of section 271AAB are self contained and are not dependent upon commencement or finalization of the assessment proceedings. It is further pertinent to note here it is not mandatory for the AO to invoke provisions of section 271AAB of the Act in each every case of levy of penalty pursuant to search action. Assessee has neither made any surrender of any undisclosed income during the search action nor the penalty has been initiated on the basis of undisclosed income found during such search action. In view of the above factual position, the impugned order of the AO imposing the penalty on the assessee under section 271AAB of the Act does not pass the mandate of the provisions of section 271AAB of the Act, therefore, the same being bad in law is hereby quashed and we direct to delete the penalty levied U/s. 271AAB - Decided in favour of assessee.

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• 2021 (12) TMI 1284
  

  Addition u/s 56(2)(viib) - difference between the fair market value (FMV) of the shares and the value actually received - HELD THAT:- FMV of the shares as on 15/07/2013 should have been determined on the basis of balance sheet drawn up on 31/03/2012 instead of 31/03/2013 cannot be accepted not being either fair or proper. Moreover, the definition of 'balance sheet' given in Clause (b) of Rule 11U for the purpose of sub-rule (2) of Rule 11UA contemplates the balance sheet of the company as drawn up on the valuation date which has been audited by the auditor of the company clearly suggests or indicates that the balance sheet referred to therein need not be available on the date of valuation simply because the balance sheet as drawn up on the valuation date and audited by the auditor of the company cannot be practically available as on the date of valuation itself.

  We are, therefore, of the considered view that the balance sheet drawn up as on 31/03/2013 was rightly taken by the Assessing Officer as well as the ld. CIT(A) for the determination of the FMV of the shares sold by the assessee on 15/07/2013 as per Clause (b) of Rule 11U for the purpose of sub-rule (2) of Rule 11UA being the balance sheet drawn up immediately preceding the valuation date. In that view of the matter, we uphold the impugned order of the ld. CIT(A) on this issue and dismiss this appeal of the assessee.

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• 2021 (12) TMI 1283
  

  Penalty u/s. 271AAB - commodity profit as falling in the ken of the 'undisclosed income' - HELD THAT:- We note that when the search took place on 13.12.2012 in the assessee's premises, the commodity trading which is itself is speculative transaction has been found to be recorded in the 'other document' (seized & marked as SA/1) even though not in the books of account of the assessee, which has been retrieved from the assessee's premises and the assessee during search declared u/s. 132(4) ₹ 45.50 lakhs (₹ 45,100/- from commodity trading profit and miscellaneous income of ₹ 4,40,000/-) and filed return of income pursuant to notice u/s. 153A of the Act which includes the total amount of ₹ 63,50,320/- has been declared and the same has been accepted in toto by the AO.

  We note that since the penalty u/s. 271AAB of the Act is levied on the amount of ₹ 45,50,000/- and since the same has been found at the time of search and which has been found recorded in the 'other document' marked by the search team as SA/1, we are of the considered opinion that for the purpose of 271AAB of the Act, this amount from SA/1 cannot be termed as 'undisclosed income' as per the definition given under Section 271AAB of the Act (supra) and therefore penalty u/s. 271AAB of the Act cannot be levied in this case. - Decided in favour of assessee.

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• 2021 (12) TMI 1282
  

  Disallowance of employees' contribution made to the respective funds of the Government under PF & ESI Act - assessee has not remitted the employees' contribution on the due date as prescribed by the PF & ESI Act, thus the contribution made belatedly cannot be allowed - Scope of amendment - HELD THAT:- Respectfully following the decision of M/s. Lumino Industries [2021 (11) TMI 926 - ITAT KOLKATA] we are inclined to allow the appeals of the assessee and direct the A.O to delete the addition and hold that the Amendment brought in Finance Act 2021 w.e.f. 01.04.2021 by inserting an Explanation to section 36(1)(va) and section 43B of the Act is prospective in nature in nature and would apply from AY 2021-22 onwards and therefore, the amendment is not applicable to these assessment years (AYs 2014-15, 2017-18 & 2019-20) under consideration.- Decided in favour of assessee.

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• 2021 (12) TMI 1281
  

  Correct head of income - rental income from letting out building space along with inbuilt infrastructure and other amenities - income from other sources or income from house property - HELD THAT:- On careful analysis of the facts and circumstances, we find that the issue is squarely covered in favour of the assessee by the decision of the coordinate bench in assessee”s own case for Assessment Year 2011-12, [2021 (6) TMI 538 - ITAT DELHI] wherein, on identical facts and circumstances, issue has been decided by coordinate bench and it held that income earned by the assessee form letting out of the building space and other amenities is chargeable to tax under the head “income from other sources”.

  Thus we decide ground in favour of the assessee holding that such composite rental income is chargeable to tax in the hands of the assessee under the head “Income from other sources”. - Decided against revenue.

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• 2021 (12) TMI 1280
  

  Extended period of limitation - Certificate of Origin furnished by the petitioner was valid or not - actual Regional Value Content (RVC) of Tin Ingots - mis-statement or misdeclaration by the petitioner at the time of import or not - HELD THAT:- The facts as to whether a case was made out for suppression of facts or wilful mistatement with an intent to evade of payment of duty or not is a question of fact which has to be decided by the hierarchy of the authorities under Customs Act, 1962. The petitioner has to establish the case for interference only before the Appellate Commissioner under Section 128 of the aforesaid Act. Even if the Appellate Commissioner does not accept the contention of the petitioner, the petitioner is not remedyless. The petitioner can recover the same from the 2nd respondent in accordance with the provisions of the Sale of Goods Act, 1930.

  The writ petition is liable to be dismissed and it is dismissed.

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• 2021 (12) TMI 1279
  

  Seeking rectification of register of members of the Company - Seeking to declare that all the resolutions passed by the superseded Director Board enlisting R2 to R20 as new members of the Company are ultra vires of AOA of the Company - seeking to declare that the enrolment of Respondent No. 2 to 20 as members of the 1st Respondent Company violates the Articles of Association of the Company hence illegal - seeking to rectify the register of members of the Company - HELD THAT:- It appears from the Articles of Association that the number of members can be increased only up to 500 if the general meeting is of the opinion that it is necessary to add more members for the activities of the Company. From the minutes of the meeting of all general meetings held from 01.01.2013 to 05.11.2018 that any of the general meetings of these periods found it necessary to enlist more members for the activities of the Company or authorized the Director Board to enlist new members. We are also agreeable to the contention of the Administrator appointed to carry out the functions of the Company, that the Director Board has no authority or power to enroll new members without the sanction of the General Meeting. The resolutions passed to enroll Respondent Nos.2 to 20 as members, it is not stated that the General Meeting had been held and authorized the Director Board to enlist new members.

  Even though the Respondents stated that they have inducted the new members with the approval of the Board, they have not produced any record to show that this was approved by any General Body of the Respondent Company, which is mandated under the Rules/Articles of Association of the Company.

  It is declared that enrolment of R2 to R20 as members of 1st Respondent Company was done in clear violation of the Articles of Association of the Company. As such they are directed to be removed from the Register of Members of the 1st Respondent Company and rectify the Register of Members accordingly and file appropriate documents before the Registrar of Companies, Kerala without delay, at any rate within a period of one month from the date of receipt of this order - The appellant has a strong case in the instant appeal - appeal allowed.

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• 2021 (12) TMI 1278
  

  Sanction of Scheme of Amalgamation - Sections 230-232 of the Companies Act, 2013 - HELD THAT:- All statutory requirements of the provisions of Sections 230-232 of the Act are satisfied. The present company scheme appears to be genuine and bona fide and it appears to be in the interest of its shareholders and creditors.

  The scheme is approved - application allowed.

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• 2021 (12) TMI 1277
  

  Seeking restoration of name of the company in the Register of Companies - Section 252(1)/252(3) of the Companies Act, 2013 - HELD THAT:- As per the records the name of the company, M/S Akansha Tea Plantation and Trading Company Private Limited got struck off from the Register of Companies and dissolved 09.06.2017 (followed by a Gazette notification published in this respect), while the present appeal has been filed on 18.11.2020. Hence it is found to be filed within limitation.

  As per the records, the name of the company, M/S Akansha Tea Plantation and Trading Company Private Limited is the company that has filed its statutory return up to 2011-12 and thereafter it has not filed any return - The failure on the part of the company to file the annual returns and financial statement was unintentional and not deliberate. However due to such reasons the ROC, NER, Assam, Struck off the name of the Company.

  The Registrar of Companies, NER, Guwahati, the respondent herein, is directed to restore the original status of the petitioner company as if the name of the Company had not been struck off from the register of Companies with the resultant and consequential actions like changing status of petitioner company from ‘struck off’ to ‘Active’ - Application allowed.

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• 2021 (12) TMI 1276
  

  Seeking restoration of name of the company in the register of ROC - Section 252(3) of the Companies Act, 2013 - HELD THAT:- As per the record, the petitioner has preferred the present appeal under section 252(3) of the Companies Act as being the shareholder and Director of the deregistered company. He is eligible to file the present appeal for restoration of the company’s name in the register of the ROC. Hence, the present appeal is found maintainable - As per the records the name of the company, M/S Elangbam Infrastructures & Construction Private Limited got struck off from the Register of Companies w.e.f 30/09/2019 (followed by a Gazette notification published in this respect), while the present appeal has been filed on 23.08.2021. Hence it is found to file within limitation.

  It would be just and equitable to revive the name of the company M/S Elangbam Infrastructures & Construction Private Limited in the statutory register as being maintained by the Registrar of Companies, Guwahati - respondent is directed to restore the original status of the petitioner company as if the name of the Company had not been struck off from the register of Companies with the resultant.

  Application allowed.

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• 2021 (12) TMI 1275
  

  Payment of Transaction Audit Fees - Section 60(5) of IBC read with Rule 11 of NCLT Rules - HELD THAT:- It is clear that the Suspended Management /Directors have neither cooperated fully nor they have provided the complete book of accounts, despite sufficient opportunities given, as required under Sec 19 of IBC for completion of the CIRP. The Transaction Auditor, the Applicant here has not submitted Complete Transaction Audit Report for want of cooperation from the Directors and availability books of accounts of the CD. The Transaction Audit Report submitted by the Applicant is not complete.

  Hence the Suspended Management is hereby directed to file reply affidavit to the reported irregularities undertaken by the CD as mentioned in the Report and the reasons for their non - cooperation/non supply of all books of accounts, within 10 days from today - Transaction Audit Report is not complete.

  Considering the work done by the Applicant and the Unit being a Coaching Institute, it is reasonable for the CoC to pay ₹ 3,00,000.00 plus applicable GST i.e. ₹ 60000.00 per year - application disposed off.

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• 2021 (12) TMI 1274
  

  Seeking release of security interest from the liquidation estate - HELD THAT:- The vehicle is registered in the name of the suspended Director of the corporate Debtor. Under Part II of IBC when an Application is admitted &moratorium becomes applicable, the right to reach the vehicle under such contract would be affected & will be subject to provisions of IBC. Under Section 18(1)(f) of the IBC Code, 2016, as soon as CIRP is initiated, the IRP is duty-bound to take control and custody of assets over which the Corporate Debtor has ownership rights. It appears from the records that the owner’s name and address in the Certificate of Registration, confirms the ownership of the car to be that of the Corporate Debtor - the vehicle is purchased in the name of the suspended Managing Director for the Corporate Debtor. Therefore, the company is the owner of the vehicle.

  If the respondent wants to proceed with the liquidation proceedings without relinquishing his security interest he has to follow Section 52 of the I&B Code in which it is specified that the CIRP cost due from the secured creditors who realize the security interest in the manner provided in Section 52 has to deduct the proceeds from the sale of the asset and shall transfer such amounts to be included in the liquidation estate.

  In this case the respondent has submitted Form D to realize his claim from the asset of the Corporate Debtor through Liquidation Proceedings. Thus, we are constrained to believe that the respondent has admitted themselves as the Financial Creditor and submitted the claim before the Liquidator and that the Liquidator considered the claim of the Respondent. Therefore, the Respondent is liable to follow the procedures prescribed under the I&B Code - Since we found that the asset in question is registered in the name of the Managing Director of Corporate Debtor and in the address of M/s. Adhils Builders and Developers Pvt. Ltd, it is to be taken as a Liquidation asset of the Corporate Debtor.

  Application disposed off.

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• 2021 (12) TMI 1273
  

  Seeking to release the outstanding fee of Liquidator during which the Applicant has discharged his functions - HELD THAT:- There are force with the contention of the Applicant/erstwhile liquidator. Having considered the submissions made by the parties and the directions given by this Tribunal vide order dated 06.01.2020 while passing the liquidation order, we deem it appropriate to allow this application and direct that the Applicant is entitled to get his fees during the period he functioned as the Liquidator.

  It is deemed appropriate to direct the respondent no. 1 to 5, who are the Members of the Stakeholders Consultation Committee to pay a sum of ₹ 75000/- per month to the present applicant/erstwhile Liquidator for the period 06.01.2020 to 06.01.2021 during which he worked as the Liquidator of the Corporate Debtor - application allowed.

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• 2021 (12) TMI 1272
  

  Seeking direction to 1st Respondent to admit the claim - Section 68 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The reason for rejection stated by the Resolution Professional in her reply statement is that as per the books of accounts of the Corporate Debtor an amount of ₹ 91,05,993.26/- equivalent to USD 1,41,847.05 is only payable to the Applicant, as this amount reflects in the Audited Financial Statement of the Corporate Debtor. The excess amount claimed by the Applicant has already been received by them from the Corporate Debtor and this amount was adjusted by the Applicant against the dues of Matheel. Hence the Resolution Professional has not accepted that amount which has already been paid. If that amount is also accepted by the Resolution Professional, that would be violation of the IBC and detrimental to the interests of other creditors of the Corporate Debtor. Moreover, the applicant has not disputed the receipt of such amount from the Corporate Debtor.

  There are no reason to entertain this application - application dismissed.

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• 2021 (12) TMI 1271
  

  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial creditors - existence of debt and dispute or not - HELD THAT:- In the present case in hand it is noted that the amount were advanced as per agreement on 11.01.2016 for period of 3 years being lock in period at the rate of 2% per month interest rate therefore amount becomes due on 11.01.2019. The Financial Creditor also issued default notice and recalled principal and interest through advocate, however Corporate Debtor has failed to make the payment.

  In the lights of the Hon’ble Supreme Court in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT] upholding the Constitutional validity of IBC, the position is very clear that unlike Section 9, there is no scope of raising a ‘dispute’ as far as Section 7 petition is concerned. As soon as a ‘debt’ and ‘default’ is proved, the adjudicating authority is bound to admit the petition.

  The application made by the Financial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor.

  Application admitted - moratorium declared.

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• 2021 (12) TMI 1270
  

  Seeking dissolution of Corporate Debtor - Section 59(7) of the Insolvency and Bankruptcy Code, 2016 and other applicable provisions of the IB Code, 2013 read with Regulation 38(3) of Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process) Regulations, 2017 - HELD THAT:- The Applicant Company is having no creditors, i.e. either secured creditors or unsecured creditors. The Company has duly passed necessary Special Resolution in its Extra-Ordinary General Meeting on 14.02.2019 by confirming the decision of its Board of Directors by proposing its Voluntary Liquidation. Further, in Extra-Ordinary General Meeting a Resolution was passed to appoint a Liquidator for such purposes. Thus, it appointed Mr. Om Prakash Rathi, the Insolvency Professional as Liquidator and after his demise, through Special Resolution passed in its Extra-Ordinary General Meeting on 26.07.2019, appointed Mr. Amit Pareek, the Insolvency Professional as Liquidator.

  This Adjudicating Authority in exercise of power conferred under Section 59 (8) of the Insolvency and Bankruptcy Code 2016, the Applicant Company i.e., “M/s. Guwahati Real Estate Limited” is ordered to be dissolved with effect from the date of this Order i.e. 30.11.2021 - Petition allowed.

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