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Showing 41 to 60 of 16576 Records
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2021 (12) TMI 1489
Violation of principles of natural justice - impugned orders contain no reasons in support of their conclusion (non-speaking order) - Declaration of petitioners as Wilful Defaulter - Company was classified as a Non-Performing Asset (NPA) - petitioners filed their response to the show-cause notice but did not object to the issue of show-cause notice by the DGM - HELD THAT:- The impugned orders in the present case have recorded conclusions without indicating the reasons in support of the same - The reasons must reflect some application of mind to the submissions made in the response to the show-cause notice failing which an impression is legitimately created that there is no consideration of such submissions.
As noted, even para no. 3(b) of the Master Circular provides for consideration of such submissions before making the order declaring a person or an entity as a wilful defaulter and the record of reasons in support of the conclusion - In the precise context of the Master Circular dated 01.07.2015, the Division Bench of this Court in M/S. KANCHAN MOTORS AND OTHERS VERSUS BANK OF INDIA AND OTHERS [2018 (7) TMI 1909 - BOMBAY HIGH COURT] was pleased to set aside the orders made by the WDIC and the Review Committee because such orders were found to be non-reasoned or non-speaking orders. The Division Bench did not approve the practice of simply recording conclusions without any reasons to back the same. The Division Bench observed that the absence of reasons in the order of the Review Committee amounts to a denial of justice since it is now well-settled that reasons are live links between the minds of decision taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity for objectivity so that the affected party can know why the decision has gone against him.
The impugned orders are set aside mainly on the ground that they contain no reasons in support of their conclusion and in that sense are non-speaking orders - The respondents are granted liberty to proceed from the stage of issuance of show-cause notice dated 22.10.2020 and make such orders as may be appropriate in terms of the Master Circular dated 01.07.2015 - petition allowed.
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2021 (12) TMI 1488
Liquidation of the Respondent - liquidation sought on the ground that the Respondent committed a breach of the terms of sanctioned rehabilitation scheme duly approved by Appellate Authority for Industrial and Financial Reconstruction (AAIFR) - whether the sanctioned scheme can be treated as the Resolution Plan within the meaning of Section 5(26) of the IBC, 2016? - HELD THAT:- This Adjudicating Authority had never considered the point whether the notification dated 24.05.2017 is valid or not. The judgment of the Hon'ble NCLAT in the case of Pr. Director General of Income Tax (Admn. & TPS) Vs. M/s. Spartek Ceramics India Ltd. & Anr. [2018 (6) TMI 350 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] and further the judgment of the Hon'ble Supreme Court in the case of M/s. Spartek Ceramics India Ltd. Vs. Union of India [2018 (10) TMI 1660 - SUPREME COURT] were never placed before this Adjudicating Authority for consideration. This Adjudicating Authority had given the above advisory without considering the law laid down by the Hon'ble Supreme Court as it was not brought to the notice of the Adjudicating Authority. So, this order of the Adjudicating Authority cannot be relied on - The sanctioned scheme of rehabilitation dated 07.01.2005 cannot be termed as the Resolution Plan within the meaning of Section 5(26) of the IBC, 2016 - the issue answered in negative.
Maintainability of application under Section 33(4) of the IBC, 2016 - HELD THAT:- The sanctioned scheme of rehabilitation is not the Resolution Plan within the meaning of Section 5(26) of the IBC, 2016 - there is no question of the Respondent committing the breach of implementing any of such plan, hence, this application under Section 33(4) of the IBC, 2016 is not maintainable.
Even otherwise, the sanctioned scheme under Sick Industrial Companies (Special Provisions) Repeal Act, 2003 cannot be considered as Resolution Plan because the said scheme had not been approved by the Committee of Creditors in terms of sub-section (4) of Section 30 of IBC, 2016 which is the mandate of law - Since the approved Scheme dated 07.01.2005 cannot be treated as the Resolution Plan within the meaning of Section 5(26) of the IBC, 2016, we hold that there is no question of breach of its implementation as alleged by the Applicant herein - Issue answered in negative.
Petition dismissed.
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2021 (12) TMI 1487
Violation of principles of natural justice - registration of F.I.Rs in connection with the matrimonial offences without embarking upon any preliminary enquiry - HELD THAT:- The judgment in THE STATE OF TELANGANA VERSUS HABIB ABDULLAH JEELANI AND ORS. [2017 (1) TMI 1683 - SUPREME COURT] is not applicable in the present case since in that case the F.I.R. was registered under Sections 147,148,149 and 307 of the Indian Penal Code, 1860. The said case, therefore, did not come within the purview of paragraph 120.6 of the Lalita Kumari case - Though paragraph 120.6 does not suggest that preliminary enquiry is to be mandatorily held with regard to the types of cases mentioned therein, the investigating agencies should not be allowed to do away with the preliminary enquiry in such types of cases without any justifiable reason.
The investigating agency in such cases ordinarily should conduct a preliminary enquiry unless it is not shown that immediate registration of FIR would defeat the very purpose of investigation or conducting a preliminary enquiry will be an empty formality.
The State has failed to justify the registration of the F.I.Rs without conducting the preliminary enquiry in both the cases - Accordingly, it is directed that the concerned police shall conduct the preliminary enquiry, in both the cases, within a period of three weeks from the date of communication of this order and upon preliminary enquiry if it is found that there exists sufficient grounds to carry out a fullfledged investigation, they shall proceed with the investigation in terms of Section 156 (1) of the Code of Criminal Procedure, 1973. The two F.I.Rs shall be kept in abeyance till conclusion of the preliminary enquiry.
Application disposed off.
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2021 (12) TMI 1486
Permitting the request of grant of installments of the liability arisen in SVLDRS-3 - Issuance of show cause notice without pre-consultation notice - whether the show cause notices dated 24.09.2020 and 23.09.2021 would require any indulgence? - HELD THAT:- It is quite apparent from the chronology of the events that the petitioner was subjected to the search and afterwards when the respondent has come out with the SVLDR Scheme in the year 2019, the last date of payment of dues by the declarant under sub-section (5) of Section 127 was eventually fixed at 28.02.2021.
When the Court noticed that the outstanding dues from the various government authorities is of more than Rs. 1.22 crores (rounded off) in a period like this, when the request is made for making payment, if in the past the petitioner could not make the same on account of the outstanding dues of the government authorities, which he could not recover due to pandemic, his request could have been considered sympathetically and bearing in mind all these surrounding circumstances. In absence of such consideration on the part of the respondent, the Court needs to intervene.
Issuance of show cause notice without pre-consultation notice - HELD THAT:- The CBEC Master Circular dated 10.03.2017 provides for the preconsultation as a mandatory requirement as can be traced to Section 83 of the Finance Act. The instructions issued by the CBEC as per Section 37(B) of the Central Excise Act would be binding on the authorities of the department. The statutory circulars would be binding upon the department so long as they are not inconsistent with statutory provisions nor mitigate the rigor of the law - In the instant case also, there is no adherence to the said circular by adapting the pre-consultation as contemplated under the circular. This itself is the reason for the Court to quash and set aside the show cause notices. Thus, not only on the ground of absence of pre-consultation before issuance of the show cause notice but also from the discussion held hereinabove in respect of need for the intervention on nongrant of any installment for making payment, the Court is inclined to allow this petition.
The petitioner is permitted to make payment under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 within a period of six (6) weeks from the date of receipt of copy of this order with statutory interest at the rate prescribed thereon from the first date of his application which he has not abided by - petition allowed.
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2021 (12) TMI 1485
Wilful Defaulters - petitioners are unable to defend themselves as they are not aware about the reasons for such declaration (of wilful defaulters) - opportunity of hearing not provided to the petitioners - violation of principles of natural justice - HELD THAT:- It is incumbent upon the Identification Committee to provide an opportunity of personal hearing to the borrower and promoter, whole time director or the persons, who are to be considered as willful defaulter and the decision of such Identification Committee is to be reviewed by any other Committee, which is Review Committee as per Clause-3(c) of the Master Circular.
The Apex Court in case of STATE BANK OF INDIA VERSUS M/S. JAH DEVELOPERS PVT. LTD. & ORS. [2019 (5) TMI 862 - SUPREME COURT] while denying the right to be represented by a lawyer in the in-house proceedings contained in Para 3 of the Revised Circular dated 01.07.2015, has held that Revised Circular, being in public interest, must be construed reasonably.
The respondent bank has failed to comply with the aforesaid mechanism provided under the Revised Master Circular as petitioners were never informed by the Identification Committee by issuing show cause notice and the notice was issued by the respondent bank to which the petitioners filed detailed reply but the order passed by the Identification Committee recording that the petitioners have committed willful default was never provided to the petitioners. The petitioners came to know about declaring them as willful defaulter only from the website of CIBIL - the respondent bank while declaring the petitioners as willful defaulter has violated the provisions contained in the Revised Master Circular and has also acted in violation of principles of natural justice. As the impugned action which is penal in nature has been taken causing serious implication to the petitioners without following the basis of principles of natural justice, the impugned action of the respondent bank identifying the account of the petitioners as willful default and subsequent reporting of name of the petitioners to the RBI/CIBIL as willful defaulters are liable to be quashed and set aside.
The impugned action of the respondent bank identifying the account of the petitioners as willful defaulters and subsequent reporting of the names of the petitioners to RBI/CIBIL as willful defaulters is hereby quashed and set aside and the matter is remanded back to the Identification Committee of the respondent bank to follow the procedure as prescribed in Master Circular dated 1st July, 2015 by issuing a show cause notice to the petitioners and providing opportunity to the petitioners as per Clause-3 of the said circular.
Petition allowed by way of remand.
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2021 (12) TMI 1484
Violation of a principle of natural justice - no opportunity to explain and tender the proof that at the time of its striking off the Company was in operation, was given to his client - HELD THAT:- Petitioner might approach the Tribunal to contend that impugned order be amended on the Tribunal not having allowed his client to adduce evidence of the company being in operation, in context of the report having said that his client may be put to strict proof. If the Tribunal is satisfied, it may amend impugned order. The amendment can be made within two years from date of order, so there is still time. Petitioner has not preferred appeal and, therefore, still entitled to approach the Tribunal.
The writ petition is disposed of.
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2021 (12) TMI 1483
Refund of the amount deposited being 25% of the auction sale consideration - HELD THAT:- The High Court ought to have allowed the refund of the amount deposited being 25% of the auction sale consideration. Considering the fact that though initially the appellant deposited 25% of the auction sale consideration, however, subsequently she could not deposit balance 75% due to COVID-19 pandemic. It is required to be noted that subsequently the fresh auction has taken place and the property has been sold. It is not the case of the respondents that in the subsequent sale, lesser amount is received. Thus, as such, there is no loss caused to the respondents.
The order of forfeiture of 25% of the amount of auction sale consideration is set aside - the respondent Bank are directed to refund/return the amount earlier deposited by the appellant, deposited as the part auction sale consideration (minus 50,000/- towards the expenditure which were required to be incurred by the respondent Bank for conducting the fresh auction) within a period of four weeks from today - appeal allowed.
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2021 (12) TMI 1482
Validity of Reopening of assessment - non consideration of all the submissions of petitioner as objections to the notice issued u/s 148 - HELD THAT:- As per petitioner if the Court could direct the AO to hear petitioner personally then petitioner could explain to him, before fresh order on objections is passed, and make all submissions before the concerned officer and the Court may then dispose the petition in the above terms.
Revenue leaves it to the Court but states that the Court should not make any observation on the merits of the matter. The request revenue is justified. Therefore, the order dated 20th November 2019 is quashed and set aside.
AO is directed to reconsider the submissions made by petitioner in its letter dated 9th April 2019 in response to the notice issued u/s 148 of the said Act, grant personal hearing to petitioner and thereafter, pass his order in accordance with law within six weeks from today. We clarify that we have not made any observations on the merits of the case.
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2021 (12) TMI 1481
Reopening of assessment - claim made u/s 80IA was rejected for the reason that the conditions laid down by the said provision are not fulfilled - HELD THAT:- Revenue carried the matter in Appeal before this Court and this Court in [2011 (9) TMI 1251 - BOMBAY HIGH COURT], dismissed Revenue’s Appeal relying upon in [2011 (2) TMI 1625 - BOMBAY HIGH COURT]. Therefore, the entire foundation for the proposed re-opening which could, even if considered to be a tangible material, has crumbled. Decided in favour of assessee.
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2021 (12) TMI 1480
Penalty u/s 271(1)(c) - true meaning of concealment of particulars of income and furnishing of inaccurate particulars of income under Section 271 - if, Assessing Officer has accepted the return of income as returned but later it is reassessed based on an order passed under Section 263 of the Act, can a penalty be imposed? - HELD THAT:- The court requested Mr. Madhur Agrawal as Amicus to assist the court. Ms Vissanji stated she will provide a copy of the Appeal Memo to Mr. Agrawal.
Liberty is given to appellant’s counsel to make a photocopy of the order when the substantial question of law was drawn.
The question mentioned above will also be considered as substantial question of law arising out of this Appeal and parties may address on the same on the next date. Stand over to 14th January 2022.
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2021 (12) TMI 1479
Pecuniary (monetary) Jurisdiction - future and pendente lite interest - whether interest claimed in the Statement of Claim can be taken into account for determining the “Specified Value” for the purposes of the pecuniary jurisdiction of the Court? - HELD THAT:- Merely because Section 12(1)(a) of the Commercial Courts Act specifically provides that the interest claimed till the date of filing of the suit is to be taken into account for determining the “Specified Value”, cannot detract from giving full effect to the “value of claim” in an arbitration for purposes of Section 12(2) of the Commercial Courts Act. It is settled principle of interpretation of statute that words of a statute are first understood in their natural and ordinary sense, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary. In Section 12(2) of the Commercial Courts Act there are no reason to restrict the ambit and width of “value of claim” in arbitration from its natural meaning of including interest claimed till the date of invocation of arbitration.
The portion of interest claimed till the date of invocation of arbitration would therefore, have to be taken into consideration under Section 12(2) of the Commercial Courts Act for determining the “Aggregate Value” of the claim. There is no dispute, in the present case, that when such interest is added, the “Aggregate Value” of the claim would exceed ₹2,00,00,000/- (Rupees two crore) making the petition under Section 34 of the Act beyond the pecuniary jurisdiction of the learned District Court.
There are no infirmity in the Impugned Order - The appeal is, accordingly, dismissed.
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2021 (12) TMI 1478
Validity of Reopening of assessment - HELD THAT:- As Petitioner has chosen not to press this matter at this stage. We have chosen not to go into the merits of the matter. This disposal will not come in the way of the petitioner in pursuing other legal remedies.
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2021 (12) TMI 1477
Preferring an appeal u/s 246A - as argued if the petitioner is relegated to appellate authority, there will be hindrance in petitioner’s way as the limitation for filing the appeal has already passed - HELD THAT:- Present writ petition is disposed of with the direction to the petitioner to prefer an appeal before the appellate authority on or before 15.01.2022.
In case, appeal is preferred by 15.01.2022, the appellate authority shall consider the same, in accordance with law, ignoring the delay as the petitioner was bonafidely pursuing the present writ petition against the assessment order dated 20.07.2021.
Needless to observe that since this Court has not adjudicated on merit of the case, the petitioner will be free to raise all permissible grounds, including the ground in relation to special audit, in accordance with law.
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2021 (12) TMI 1476
Seeking an injunction and restraint order against the defendants from using, divulging, distributing, publishing, revealing or dealing with the proprietary information and trade secrets of the plaintiff - whether the period of limitation for fling of written statement, as contemplated under Order 8 Rule 1 of the CPC got automatically attended, since it is expired during the period of lockdown and to be precise on 09/05/2020?
HELD THAT:- A Similar argument was advanced before the Hon’ble Supreme Court in case of SAGUFA AHMED & ORS. VERSUS UPPER ASSAM PLYWOOD PRODUCTS PVT. LTD. & ORS. [2020 (9) TMI 713 - SUPREME COURT] qua the limitation for fling of an Appeal before the National Company Law Appellate Tribunal, on dismissal of the proceedings by the NCLT on 04/08/2020, Section 421 of the Companies Act, 2013 which provide an Appeal to the Tribunal, which shall be fled within a period of 45 days, from the date on which a copy of the order of Tribunal is made available. The proviso, however, permit the Tribunal to entertain an Appeal after expiry of the said period of 45 days, but within a further period not exceeding 45 days, on being satisfied that the appellant was prevented by sufficient cause from fling the Appeal within that period. In the said case, period of 45 days was over on 02/02/2020 and the attended period, which was the discretionary period, also expired on 18/03/2020, before which the Appeal was not fled, but the Appeal came to be fled only on 28/07/2020.
There are no other option is available to me in the facts of the given case. The statutory period of limitation within which the written statement could be fled in the present case came to be attended by the discretionary power of the Court and even the period of 120 days expired on 09/05/2020 and when the lockdown came to be imposed, ‘period of limitation’ having already expired, the benefit of the order of the Hon’ble Supreme Court cannot be attended to the defendants. The learned Judge has committed no error in refusing to accept the written statement on record, holding that the defendants have forfeited their right to file the written statement, on expiry of period of 120 days.
Finding no legal infirmity in the impugned order, the same is upheld - petition dismissed.
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2021 (12) TMI 1475
Applicability of Section 115JB on electricity company - assessee is engaged in the generation of power and has been established under the provisions of Damodar Valley Corporation Act, 1948 - scope of amendment brought in Section 115JB of the Act by Finance Act, 2012 effective from 01.04.2013 - HELD THAT:- All taxation is meant for the welfare of the people in a constitutional republic and, therefore, the enquiry as to the mischief sought to be remedied by the amendment becomes irrelevant and, therefore, the Court held that the fiction fixed under Section 115JB cannot be pressed into service against the appellant therein while making the assessment of the tax payable under the Income Tax Act. On this issue, it would be beneficial to refer to the decision of ING Vysya Bank Ltd. [2020 (1) TMI 1116 - KARNATAKA HIGH COURT] wherein held that provision of Section 115JB cannot be made applicable to insurance companies, banking companies or companies engaged in generation or supply of electricity.
Effect of the amendment brought about to Section 115JB by Finance Act, 2012 with effect from 1st April, 2013 and sought to impress upon us the effect of such amendment to sustain their contention - This very issue was considered in the case of CIT, LTU vs. Union Bank of India [2019 (5) TMI 355 - BOMBAY HIGH COURT] as held that the amendments to Section 115JB are neither declaratory nor classificatory but are substantive and significant legislative changes and can be applied only prospectively.
Further, the High Court of Kerala in Principal Commissioner of Income Tax vs. State Bank of India [2019 (10) TMI 638 - KERALA HIGH COURT] had considered the identical issue in respect of a banking company and following the decision of Union Bank of India [supra] had dismissed the appeal filed by the revenue. Appeal decided in favour of assessee.
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2021 (12) TMI 1474
TP Adjustment - DRP directed TPO /A.O. to exclude eight out of thirteen comparable entities whereby reducing arm’s length price (ALP) adjustment - HELD THAT:- We note at the outset that this tribunal’s co-ordinate bench order in Assessment Year 2009-10 in assessee's case [2014 (11) TMI 129 - ITAT HYDERABAD] itself has already excluded M/s. Eclerx Services Ltd., M/s. Cosmic Global Limited and Infosys BPO on the ground that they provide KPO services, have different business model(s) since having huge sub-contracting company brand value, diversified activity and other functional dissimilarities; respectively. Revenue has admittedly not indicated any distinction for the relevant facts in these twin assessment years.
The outcome is not different qua the remaining comparables as well wherein we find that M/s.Informed Technologies Ltd. fails revenue filter of 75% applied by the TPO himself. M/s. Jeevan Scientific Technologies Ltd. has also been rejected on the very turnover filter as well as in light of huge fluctuating margin pinpointing abnormal trend. Same factual position prevails regarding M/s. Mastiff Tech P. Ltd. having bad debts influencing its profit margin thereby reducing them from 21.78% to 2.28% only.
We lastly note that M/s. TCS E-Serve Ltd. fails to satisfy the turnover filter which is also found to be catering mainly to M/s. Citi Group having diversified portfolio than assessee's IT Enabled Services segment. Suffice to say, the learned panel has taken due note of all applicable judicial precedents as well. We thus decline the Revenue’s instant sole substantive grievance as well as the main appeal.
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2021 (12) TMI 1473
Classification of imported goods - data projector (Optoma SA520) - to be classified under CTH 85286200 or under CTH 85286900? - applicability of Sr' No' 17 of Notification No. 24/2005-customs. dated 01.03.2005, as amended - HELD THAT:- A projector is an optical device that projects an image/video onto a surface, commonly a projection screen. The idea of a projector is to convert a small image into a much larger one so that a greater number of people can see it. A projector accepts a video/image as an input, processes it with the assistance of its inbuilt optical projection system consisting of a lens and optical source and projects the enhanced output on the projection screen' Therefore, the compatibility of a projector with input devices, such as a computer, a DVD player, etc' feeding images/videos to it and its ability to project these inputs accurately on the screen forms the most important attribute for the classification of a projector.
CTH 85286900 is a residual entry. CTH 8471 covers automatic data processing machines and units thereof; magnetic or optical readers' machines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere specified or included. Chapter Note 5 (E) to Chapter 84 states that machines incorporating or working in conjunction with an automatic data processing machine and performing a specific function other than data processing are to be classified in the headings appropriate to their respective functions. Therefore, projectors working in conjunction with devices under 8471 will be classified under heading 8528. The product data sheet lists computer graphics compatibility standards of the product, namely, WUXGA, UXGA, WXGA, SXGA+, SXGA, XGA, SVGA, VGA resized, !ESA, PC and Mac. Further, the VGA port facilitates the connection between the said projector and a laptop/ computer. Therefore it is evident that the projector in question is designed for use with an automatic data processing machine.
The projector under consideration has got certain additional ports such as HDMI, audio, composite, etc. Further, the product is compatible with an aspect ratio of 16:9, though the aspect ratio of 4:3 is native. These facts make it capable of being a video projector and consequently classifiable under CTH 85286900 also. GI Rule 3 states that "the heading which provides the most specific description shall be preferred to headings providing a more general description" - The projector imported by the applicant has got additional features such as composite port, HDMI port etc. Apart from this, it is also compatible with the 16:9 aspect ratio. The additional ports and compatibility with the 16:9 aspect ratio give additional utility in the form of an audio-video display. The differentiating features of data projectors compared to that of video projectors are discussed in table 1, which substantiates that the principal use of impugned goods, based on functions and features, is with automatic data processing machines. The presence of additional features cannot dis-entitle the impugned goods from classification under CTH 85286200.
Sr. No. 17 of Notification No. 24/2005-Customs, dated 01.03.2005, as amended, exempts all goods under subheading 85286200 of kind solely or principally used in an automatic data processing system of heading 8471. The impugned goods are solely or principally used with a computer or laptop, i.e., an automatic data processing machine. Therefore, the goods under consideration are entitled to the exemption.
The imported goods are classifiable under sub-heading 85286200 of the first schedule to the Customs Tariff Act, 1975 and would be eligible to avail benefit of Sr. No. 17 of Notification No. 24/2005-Customs, dated 01.03.2005, as amended.
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2021 (12) TMI 1472
Undisclosed LTCG - entering into a joint development agreements - transfer of capital asset u/s 2(47) - assessee submitted he did not transfer the immoveable property as per the provisions of Section 2(47) r.w.s.53A of the T.P Act and had only entered into joint development agreement wherein she is supposed to receive a portion of constructed area in view of the land contributed by her - HELD THAT:- Assessee has only entered into a joint development agreement with the promoter of the project. As a result, the assessee has contributed her land for joint development, and by virtue of the agreement she is entitled to receive 32.30% of the total saleable constructed/developed area in the project. Hence, it is evident that during the relevant assessment year the assessee has contributed her immoveable property for the joint development of the property and eventually when her share in the developed property is sold, she will be benefited by gain or loss as the case may be unless the assessee opts to retain the developed property.
If the assessee opts for sale of her developed property, provisions of Section 45(2) of the Act may apply and Long-Term Capital Gain for the sale of the land as well as profit from the sale of the developed property would be computed in accordance with the provisions of Section 45(2) r.w.s.48 of the Act and under the head “Income from business” respectively. And if the assessee opts to retain her share in the developed property, then long term capital gain shall accrue to the assessee when the transfer of the immovable property pertaining to the share of land assigned to developer takes place.
Amount received by the assessee of Rs.7 crores is only an interest-free refundable security deposit for ensuring the project to be completed as per the terms of the agreement. Further, it is also obvious that the assessee has only permitted the developer to develop the project in her land. Therefore, it cannot be construed that the possession of the immoveable property of the assessee is vested with the joint developer as per the provisions of the Act.
Thus it is apparent that the assessee shall not be liable to be taxed for entering into a joint development agreement when neither the assessee have received any consideration nor handed over possession of the immovable property during the relevant assessment year. It is Ordered accordingly. Hence the appeal of Revenue is devoid of merits.
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2021 (12) TMI 1471
Classification of imported goods - HDMI Digital Media Receiver with Alexa Voice Remote Lite as a kit - HDMI Digital Media Receiver with All-new Alexa Voice Remote as a kit - Alexa Voice Remote Lite for HDMI Digital Media Receiver - HELD THAT:- The HDMI digital receiver has a 1.7 Ghz quadcore processor and 8GB of storage. It has dual band 2x2 802.11 AC Wi-Fi with support for 5GHz networks, allowing streaming at up to 1080p at 60fps. The receiver provides HD/HDR support on compatible televisions. The HDMI digital media receiver is described by the applicant as network appliance and entertainment device for streaming digital audio/video content from the internet to television. A user sends instruction either by way of speech through inbuilt microphone in the remote or by pressing buttons on the remote. Such instructions are to select the programme/movie/any other media that the user wants to watch - The applicant has categorically stated that the digital media receiver is not capable of receiving signals from satellite/cable/terrestrial source and convert them in a suitable form for display on televisions. The device in question also does not support cellular services. It requires internet to perform. The Alexa Voice Remote Lite (lst Gen.) receives audio signals from the user, converts them into radio signals and transmits securely and wirelessly to the digital media receiver for further demodulation/processing of such radio signals. The second type of wireless remote essentially performs the same functions as described above.
From the features and functions described here-in-before, it is clear that the HDMI digital media receiver receives signals from Alexa Voice remote (lite 1st Gen./2nd Gen.) via Bluetooth. Such instructions are to select the content that the user wants to watch on his television. The digital media receiver receives instructions of the user, converts them into RF signals and transmits them to the cloud for processing by AVS. AVS converts the signals into a readable format, extracts the requested content from the Amazon cloud and transmits the same to the media receiver, which on receipt of the output, re-transmits the same for display on the user's television. Thus, HDMI digital media receiver is a device that transmits/receives RF signals and converts it into a format readable by the system and transmits the same which is displayed on the screen - the Customs Authority for Advance Rulings, New Delhi, for the identical device, considered and rejected the sub-heading 85287100 and held that digital media receiver discussed here is rightly classifiable under sub-heading 85176290.
Classification of wireless remotes - HELD THAT:- Te proper classification entry for Wireless Remote (for HDM1 Digital Media Receiver) Model No. L5B83H and Alexa Voice Remote Lite (1st Gen., Model No. H69A73), when imported separately, would be the sub-heading 85269200 and not 85176290, as originally contended by the applicant. However, when these wireless remotes are imported along with HDMI digital media receiver (Model No. S3L46N) as a kit, applying rule 3(b) of the General Rules for Interpretation of Customs Tariff, the classification of the entire kit would be sub-heading 8517620, on the ground that the digital media receiver, and not the wireless remote, gives the goods its essential character.
Benefit of exemption under serial no. 20 of the Notification No. 57/2017-Cus., dated 30-6-2017, as amended by the Notification No. 2/2019-Cus., dated 29-1-2019 - HELD THAT:- The latest amendment to the said exemption was vide Notification No. 3/2021-Cus., dated 1-2-2021, and also that the said notification provides a concessional rate of duty to all goods falling under sub-headings 85176290 and 85176990, except the following, (a) wrist wearable devices, commonly known as smart watches; (b) optical transport equipment; (c) combination of one or more of packet optical transport product or switch; (d) optical transport network products; (e) IP radios; (f) soft switches and voice over internet protocol equipment or VoIP phones, media gateways, gateway controllers and session border controllers; (g) carrier ethernet switch, packet transport node products, multiprotocol label switching transport profile products; (h) multiple input/multiple output and long term evolution products. Since, Fire TV Sticks do not appear to fall under any of the above exclusions, benefit of serial number 20 of the Notification No. 57/2017-Cus., dated 30-6-2017, as amended would be available to them.
Thus, HDMI Digital Media Receiver with Alexa Voice Remote Lite as a kit, HDMI Digital Media Receiver with All-new Alexa Voice Remote as a kit, are classifiable under sub-heading 85176290 of the first schedule to the Customs Tariff Act, 1975 - Alexa Voice Remote Lite and All-new Alexa Voice Remote, when imported separately, would be classified under sub-heading 85269200 - While the Fire TV Sticks of both the lst and 3rd generations would be eligible for the benefit of serial number 20 of Notification No. 57/2017-Cus., dated 30-6-2017, as amended; the wireless remote devices, when imported separately, wouldn't be eligible for the said notification benefit.
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2021 (12) TMI 1470
Time limitation - the case is that the time period for physically submitting the application for export benefits is getting time barred - HELD THAT:- Noticing that the time period for physically submitting the application for export benefits is getting time barred on 31.12.2021, the order passed in the earlier matter particularly in Stitchwell Garments [2022 (7) TMI 1449 - GUJARAT HIGH COURT] is followed and the respondents are directed to accept the manual application without prejudice to the rights and contentions raised by the either side. The authority concerned shall also look into the same and decide subject to the final outcome of these writ petitions. This may not create equity in favour of anyone.
Let the pleadings be completed on or before 12.01.2022 - Matters to appear on 12.01.2022.
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9911796707
