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Showing 121 to 140 of 2063 Records
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2019 (1) TMI 1947
Disallowance of payment of rent by CoC - HELD THAT:- The landlord cannot negotiate the security amount nor can adjust the payment. With regard to the current rent as Section 14 moratorium is not applicable, the Adjudicating Authority has rightly directed the parties to pay rent w.e.f. 1st December, 2018 or make suitable arrangements in the alternative.
The appellant are allowed to pay the rent w.e.f. 1st December, 2018 and onwards i.e. up to the date of moratorium. Rent of December, 2018 be paid by 15th February, 2019. Rent for the month of January, 2019 be paid by 28th February, 2019. Thereafter the rent for each month should be paid by 15th of next month.
Appeal disposed off.
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2019 (1) TMI 1946
Applicability of the provisions of Section 206C(1) in relation to certain instances of bulk sale of coal to other units - default in collection of TCS - HELD THAT:- Admitted position is that the entire shareholding of the writ petitioner is owned by the State of Jharkhand. Thus the writ petitioner comes within the ambit of the expression "public sector company".
Provisions of Section 206C(1) of the Act cannot apply to the writ petitioner irrespective of the fact as to whether the writ petitioner is the end user of the coal purchased or it is a trader of coal. The Income Tax authority has solely relied on the aspect that the writ petitioner was not the end-user of coal, ignoring the fact that a public sector company was kept outside the purview of the expression "buyer" as specified in Section 206C(1) of the Act. In such circumstances, we are unable to sustain the order of the Income Tax authorities in which liability to collect tax at source from the buyer has been made applicable in the case of the writ petitioner.
Writ petitioner being a wholly owned company of the State of Jharkhand cannot be subjected to the provisions of Section 206C(1) of the Act to the extent the said Section covers a buyer, having regard to the Explanation (aa) to the aforesaid provision read with Section 2(36A) of the Act. We accordingly direct the Income Tax authorities to refund the sum collected on account of TCS to CCL treating the writ petitioner as buyer under the aforesaid provision and CCL in turn shall refund the said sum to the writ petitioner.
For the purpose of determining the exact quantum of sum collected, the Deputy Commissioner of Income Tax, TDS Circle, Ranchi shall give a hearing to both the writ petitioner and the CCL and this quantification exercise shall be completed within a period of 10 weeks from the date of communication of this order. Learned counsel for the Income Tax authorities wanted the regular refund course to be followed in this case. We, however, do not think such a course ought to be followed as ex facie there has been collection of income tax without the authority of law in the present case and the Hon'ble Supreme Court in the case of Corporation Bank [2008 (11) TMI 387 - SUPREME COURT] had directed refund of the amount in a proceeding arising out of a writ petition. WP allowed.
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2019 (1) TMI 1945
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- After hearing Revenue it is clear that both the appeals are covered by Litigation Policy, therefore, the Misc. Applications are infructuous since the appeals need to be dismissed under Litigation Policy. Both the Misc. Applications are dismissed as infructuous.
Appeal dismissed.
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2019 (1) TMI 1944
Winding up petition - Transfer of Proceedings Rules - Operational Creditor has initially filed a Petition U/s. 433 and 434 of the Companies Act, 1956 for Winding-Up of the Respondent Debtor before the Hon’ble High Court of Bombay on 07.11.2016 but subsequently after enactment of the Insolvency and Bankruptcy Code, 2016 this Petition is transferred to this Bench in light of ‘Transfer of Proceedings Rules’ - HELD THAT:- On careful perusal of the documents it is noticed that the Corporate Debtor has admittedly supplied 4 modules of Better Technology instead of 7 modules of agreed specifications. It has also been informed to the court that some payment has been made out of the claimed amount. The Corporate Debtor has also raised a dispute regarding the amount claimed.
In the present case, it seems that the Petitioner is not sure about its claims and have mentioned different and inconsistent calculations of the alleged excess amount. The correct position of the outstanding debt has not been revealed to this Bench till date. It is clear that a “dispute” as to the existence of the amount of debt was already in existence, prior to the issue of Demand Notice under Section 8 of the Code and the same has been raised by the Corporate debtor time and again - The Corporate Debtor could not have unilaterally altered the number of modules to be supplied under the Purchase Orders. Hence, the question of quality of goods & services provided requires more intrusion and whether there has been a breach of representation or warranty, has to be adjudicated by an appropriate forum.
In respect of the definition of “dispute”. the law is now very much settled as held by several Hon'ble Courts, most importantly the decision of Mobilox Vs. Kirusa [2017 (9) TMI 1270 - SUPREME COURT] in which an observation has been made that the Adjudicating Authority is to examine at the stage of admission that whether there is a plausible contention which requires further investigation and on assertion of fact a dispute is supported by evidence.
Finally, a conclusion is hereby drawn that this is not a case where the impugned Debt and the alleged default was free from existence of plausible dispute or merely a feeble argument; but duly supported by corroborative evidences, therefore, cannot be proceeded under the Insolvency Code so as to commence CIRP by declaring the Debtor Insolvent or Bankrupt. However, it is worth to put on record that the scope and Jurisdiction of this Tribunal is limited and also confined to the provisions of Insolvency Code only while dealing with Petition filed under Section 9, therefore, the impugned Debt in question does not fall within those ambits.
Petition dismissed.
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2019 (1) TMI 1943
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Corporate-Debtor, in compliance of the stated directions; has furnished its affidavit dated 22.06.2018 making statement on its net-worth as on 31.03.2018. As per the same, the company is in loss of ₹ 437.75 lakhs. It has also furnished the details of it loan availed by the company from Secure and Unsecured creditors and payments due to the operational and sundry creditors, which aggregating to amount of ₹ 44,50,70,942/-; while the company has availed secured loan of ₹ 18,44,19,078/-.
It may be seen that the company duly admits about its financial position through its affidavit dated 02.06.2018 stating categorically that, it is facing financial difficulties and now unable to pay its creditors including the operational creditors including the present petitioner the amount due to it. Hence, the present case is fit to initiate the Corporate-Insolvency-Resolution-Process in respect of Corporate-Debtor-Company under Section 9 of the Insolvency and Bankruptcy Code provided if the present application filed by the Operational-Creditor is otherwise found incomplete.
The present application is found complete in terms of provision of Section 9 of the IB Code read with relevant Rules of Insolvency and Bankruptcy Application to the Adjudicating Authority Rule, 2016 and hence, the present petition deserves to be admitted for initiation of Corporate Insolvency Resolution Process in respect of Corporate Debtor Company with orders and directions issued.
Petition admitted - moratorium declared.
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2019 (1) TMI 1942
Deduction u/s. 80IB (10) - denial of deduction as assessee has not completed the project within the stipulated time - requirement of obtaining completion certificate in terms of the amendment made in respect of Section 80IB(10) - ITAT allowed the claim - HELD THAT:- This issue now stands concluded against the revenue and in favour of the revenue-assessee by the decisions of this Court in case of Sai Krupa Developer [2014 (10) TMI 868 - BOMBAY HIGH COURT] and M/s Krish Enterprises [2018 (3) TMI 590 - BOMBAY HIGH COURT]. In the above cases this court upheld the view of the Tribunal that in cases where comment certificate has obtained before 31st March 2005, there was no requirement of obtaining completion certificate before a particular date. No substantial question of law.
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2019 (1) TMI 1941
Maintainability of application - rejection of claim of CoC - HELD THAT:- It is reported by the RP that the Resolution Plan/ EOI received from the Applicant is rejected by COC today i.e. on 21.01.2019 at 02.30 p.m. In view of this, this Application is dismissed as infructuous.
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2019 (1) TMI 1940
Maintainability of petition - HELD THAT:- In view of the admission of the petition and appointment of Provisional/ Official Liquidator, no further proceeding can continue in this petition before this tribunal as there cannot be any two processes in respect of the same corporate debtor. Accordingly, the petition is disposed of leaving the parties to file their claim before the Official Liquidator.
Petition disposed off.
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2019 (1) TMI 1939
GP Estimation of undisclosed sales - HELD THAT:- The Revenue has find out deposits made in the bank account was from unrecorded sales and this is not disputed. With regard to this proposition, the judicial pronouncements placed before us for consideration of various High Courts, the ruling of law is absolutely clear that whenever it is accepted that the deposits are from unrecorded sales or from sales which are not recorded in the books of account then the entire deposits cannot be brought to tax. It is only the profit element involved in those unrecorded sales which can be brought to tax.
As case of the assessee it is with regard to unrecorded sales for which the judicial view is absolutely clear that only profit to be taxed in these cases.
Therefore, taking entire facts into consideration and the judicial pronouncements placed herein above before us, we hold @10% GP of undisclosed sales to be added to the income of the assessee.
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2019 (1) TMI 1938
Disallowance u/s. 14A r.w.r. 8D - Income from shares is exempt from tax - assessee submitted that assessee has not earned any exempt income and therefore provisions of section 14A are not applicable - HELD THAT:- It is an undisputed fact that on the investment made by the assessee, no exempt income has been earned during the year. We find that Hon'ble Gujarat High Court in the case of CIT Vs. Cortech Energy P. Ltd. [2014 (3) TMI 856 - GUJARAT HIGH COURT] has held that when there is no claim for exempt income, Section 14A would have no application.
We also find that in the case of CIT Vs. Holcim India P. Ltd. [2014 (9) TMI 434 - DELHI HIGH COURT] has held that where no dividend income was earned by assessee, disallowance u/s. 14A is not warranted. Further the Balance Sheet of assessee reveals that the availability of interest free funds in the form of Share Capital and Reserves and Surplus is much more than the investment held by the assessee. On the issue of availability of free funds being more than investment, we find that Hon'ble Bombay High Court in the case of HDFC [2016 (3) TMI 755 - BOMBAY HIGH COURT]
Before us Revenue has not pointed any contrary binding decision nor has demonstrated that the aforesaid decision has been set aside or overruled by higher judicial authority. Considering the totality of aforesaid facts, we are of view that in the present case no disallowance u/s. 14A us caked for. Thus, the grounds of appeal of assessee is allowed
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2019 (1) TMI 1937
Continuance of the suit and interlocutory proceeding during the moratorium period - whether a suit for passing off would embrace a suit under Section 14(1)(a) of the Insolvency and Bankruptcy Code, 2016? - HELD THAT:- Section 14 has clearly defined the classes of persons who are restrained from proceeding against the company. The classes of creditors include both secured and unsecured creditors. The statute insulates the corporate debtor against any debt recovery actions which are likely to endanger, diminish, dissipate or seriously affect the assets of the corporate debtor and such protection is to continue during the calm period. The emphasis is on to keep the corporate debtors' assets together during the insolvency resolution process and facilitate orderly completion of the process envisaged during the insolvency resolution process.
In the instant case, although the relationship between the plaintiffs and the defendant is not a creditor-debtor relationship and the principle claim is not for realization of any debt, however, the continuation of the said proceeding might lead to affectation of the intellectual property rights of the defendant at least in relation to the four marks, namely Numbers 1988894, 2353792, 3373391 and 3518558, in respect whereof the defendant is the registered holder of the trademarks - Since any decision in favour of the plaintiffs in this proceeding may likely to affect the assets of the corporate debtor and in maximizing its asset value during the pendency of the said proceeding, the suit and the interlocutory proceedings cannot proceed against the corporate debtor during the insolvency resolution process.
The proceedings in the suit and the interlocutory proceedings therein are stayed till 30th June, 2019, with liberty to mention in the event the insolvency resolution process comes to an end prior to the adjourned date. The application is adjourned till 1st July, 2019.
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2019 (1) TMI 1936
Application for permission to go abroad - HELD THAT:- The law governing the question of grant of permission to the petitioner for travelling abroad during the pendency of the trial has been elaborately discussed by this Court in authority and on the basis of the said authoritative pronouncements of the Hon'ble Apex Court and this Court, it can be safely concluded that in normal circumstances, permission can be granted to the petitioner to travel abroad being his fundamental right to travel abroad, but the conditions are to be imposed for regulating and securing his presence during the trial.
Petition allowed.
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2019 (1) TMI 1935
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- On careful perusal of the documents it is noticed that two out of the seven cheques issued by the Corporate Debtor to the Operational Creditor were never presented to the Bank for encashment, poses a serious doubt whether the cheque was for the payment for the services provided by the Operational Creditor or not. Also, the contention of the Operational Creditor is different in Form-5, from what was submitted in rejoinder. Form-5 says that 7 cheques were issued and only a payment of ₹2,00,000/- has been received, whereas, in the rejoinder the Operational Creditor submits that ten cheques have been received out of which, 3 have been cleared, 2 were not deposited and 5 were dishonoured. It seems as if the Operational creditor is not clear regarding the debt to be claimed and kept on changing its stance time and again.
In the present case, it seems that the Petitioner is not sure about its claims and have mentioned different and inconsistent calculations of the alleged excess amount. The correct position of the outstanding debt has not been revealed to this Bench till date. It is clear that a “dispute” as to the existence of the amount of debt is in existence, and the same has been raised by the Corporate debtor time and again.
There was a dispute or misunderstanding between the parties. Rather, in the present case, it is demonstrated that this is not a case where merely feeble legal argument was made; but this is a case where sufficient evidences are placed on record to substantiate the dispute time and again. On separation of grain from the chaff, it is evidenced that this is not a case of raising a spurious defence by the debtor, but a duly substantiated case of ‘existence of dispute’. Having considered the totality of the facts and circumstances mentioned above, the existence of dispute prior to issue of Demand Notice is established. Accordingly, the Petition does not deserve Admission.
Finally, a conclusion is hereby drawn that this is not a case where the impugned Debt and the alleged default was free from existence of plausible dispute or merely a feeble argument; but duly supported by corroborative evidences, therefore, cannot be proceeded under the Insolvency Code so as to commence CIRP by declaring the Debtor Insolvent or Bankrupt. However, it is worth to put on record that the scope and jurisdiction of this Tribunal is limited and also confined to the provisions of Insolvency Code only while dealing with Petition filed under Section 9, therefore, the impugned Debt in question does not fall within those ambits.
This Petition does not survive under the Insolvency Code, hence hereby “Dismissed”.
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2019 (1) TMI 1934
Allowable business expenses - allowing the expenses as revenue expenses incurred prior to setting up of the business - HELD THAT:- In the case on hand, the assessee has already set up the basic infrastructure required, in the form of an office having employees with necessary skills. It also obtained a contract from NTPC. On these facts, we uphold the finding of the ld. CIT(A) that the assessee has setup its business. In the result, this issue is adjudicated in favour of the assessee.
Intra head set off - Assessee earned interest income which has been assessed by the A.O. under the head income from other sources - A.O has mentioned that business loss of earlier years cannot be set off against the income from other sources of the current year - HELD THAT:- Perusal of the assessment order shows that the business losses are of current year which can be set off against income from other sources of the current year. After considering the relief given in the proceeding paras, A.O is directed to set off the remaining losses against income from other sources - Decided against revenue.
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2019 (1) TMI 1933
Applicability of GST - supply or not - export of supply or not - manufactures capital goods (known as ‘the tooling kit’) as per the specifications of the overseas customer and use within the factory - cost of the capital goods so manufactured reimbursed from the customers by raising the Invoice and amount is received in convertible foreign exchange - HELD THAT:- The manufacture of tooling kit for further manufacture of forgings is to be treated as a separate supply. - The amount recovered from Indian customers after the manufacture of tooling kit is leviable to CGST and SGST or IGST.
In the instant case it is undisputed fact that the applicant will supply only export the components i.e. forgings, which will be manufactured from the tooling kit. Hence, the tooling kit in respect of which charges are received will never be sent outside India. It is also well settled that to export means the goods must be loaded and shipped outside the territorial water of India (B K Wadeyar vs Daulatram Rameshwar Ial [1960 (9) TMI 64 - SUPREME COURT]).
As discussed, it is clearly established that the amount recovered from foreign customers after the manufacture of tooling kit cannot be treated as export, hence no question of zero rated arises.
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2019 (1) TMI 1932
The High Court of Madras dismissed the writ petition as withdrawn at the request of the petitioner's counsel. No costs were awarded, and the connected miscellaneous petition was closed. (Citation: 2019 (1) TMI 1932 - MADRAS HIGH COURT)
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2019 (1) TMI 1931
The High Court of Madras dismissed the writ petition as withdrawn at the request of the petitioner's counsel. No costs were awarded, and connected miscellaneous petitions were closed. (Citation: 2019 (1) TMI 1931 - MADRAS HIGH COURT)
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2019 (1) TMI 1930
Entitlement to be declared as owners of half portions of the property - preliminary decree of partition and thereafter the final decree of partition by metes and bounds - decree of permanent injunction - concealment of material fact and document - suit is hit by the provisions of Order XXIII Rule 1 CPC or not - principles of res judicata - suit been properly valued for the purposes of court fee and jurisdiction or not? - relief of declaration qua the property, barred by limitation or not?
Is the Will dated 5th December 2000 propounded by Defendant No. 1 genuine? - HELD THAT:- The language in the Will is not of an illiterate person. Merely because punctuation such as comas have not been used cannot be a ground to come to the conclusion that the Will is forged and fabricated, particularly when the signatures of the deceased are not disputed and no evidence has been led by the plaintiffs to prove that blank signed documents were left by the deceased with the defendant No. 1 or his father and power of attorney executed in favour of the father of defendant No. 1 by the deceased is not disputed - Issue decided in favour of defendant No. 1 and against the plaintiffs.
Have the Plaintiffs concealed any material fact and document and the effect thereof? - HELD THAT:- From the evidence led by the defendant No. 1 it is proved that the plaintiffs first sought inheritance of the properties based on a purported Will dated 22nd December, 2000 which never saw the light of the day in judicial/quasi-judicial proceedings and failing in the said attempt filed the present suit concealing about dismissal of the suit and other proceedings - Issue decided against the plaintiffs and in favour of defendant No. 1.
Is the suit hit by principles of res judicata? - HELD THAT:- The previous suit of the plaintiffs was dismissed for want of requisite Court fees and for non-prosecution. The present suit cannot be dismissed being barred by res-judicata. Thus issue is decided in favour of the plaintiffs and against the defendant No. 1.
Has the suit been properly valued for the purposes of court fee and jurisdiction? - HELD THAT:- Claim of defendant No. 1 in the written statement is that the plaint is liable to be rejected on the ground that the plaintiffs have undervalued the suit on the basis of valuation of circle rate given by the Govt. of NCT of Delhi as ₹ 43,000/- per sq. mtr. However, it is the claim of the defendant No. 1 that the prevalent rate of West End properties is ₹ 5,00,000/- per sq.mtr. - Though claimed, however no evidence has been led by defendant No. 1 on this count, thus this issue is decided against defendant No. 1.
Is the relief of declaration qua the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi barred by limitation? - HELD THAT:- The present suit was instituted on 21st May, 2009. It is not denied by the plaintiffs that in the earlier suit written statement of the defendant No. 1 informed about the transfer of ownership of the property No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi in his favour. Thus the period of limitation as contemplated to start from the date of knowledge would be the date of filing the written statement. Thus the present suit seeking the relief of declaration of ownership of the flat No. 510, Suryakiran Building, Kasturba Gandhi Marg, New Delhi is beyond the period of limitation - decided against the plaintiffs and in favour of defendant No. 1.
Having held that the Will propounded by defendant No. 1 of late Rajendra Vikram Singh is a valid Will and that the relief of declaration sought in respect of property No. 501, Surya Kiran Building, 19, Kasturba Gandhi Marg, New Delhi being beyond the period of limitation, other issues are decided against the plaintiffs and in favour of the defendant No. 1.
Suit dismissed.
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2019 (1) TMI 1929
Seeking permission of this Court to withdraw this Writ Petition - HELD THAT:- Recording the submission and the endorsement made by the learned counsel appearing for the petitioner, this Writ Petition is dismissed as withdrawn.
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2019 (1) TMI 1928
Refund of Service Tax - services provided to foreign customers, being export of services - applicability of time limitation u/s 11B of the Central Excise Act, 1944 read with the Finance Act, 1994 - Rule 6A of the Service Tax Rules, 1994 - April 2016 to March 2017 - HELD THAT:- Undisputedly, the services provided to foreign customers are not exigible to service tax and the appellants have paid the service tax by mistake.
The issue as to whether the time prescribed under Section 11B ibid is applicable to such a situation when the service tax is paid by mistake has been analyzed by the Hon’ble jurisdictional High Court in the case of M/S. 3E INFOTECH VERSUS CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, COMMISSIONER OF CENTRAL EXCISE (APPEALS-I) [2018 (7) TMI 276 - MADRAS HIGH COURT] relied by the Ld. Counsel for the appellant.
The rejection of refund claim is unjustified - Appeal allowed - decided in favor of appellant.
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