|
Advanced Search Options
Case Laws
Showing 121 to 140 of 1843 Records
-
2019 (11) TMI 1726
Jurisdiction - whether the Tribunal has exceeded the jurisdiction vested in him by granting the relief to the applicant? - Tribunal miserably failed to appreciate that the induction is not a promotion - HELD THAT:- The Tribunal has not committed any jurisdictional error. No interference is called for. The impugned order passed by learned Tribunal on 13.03.2019 was required to be implemented within four months. But, certified copy of the same was applied on 14.03.2019 and this writ petition was filed on 26.07.2019. Within four months from the date of receipt of the impugned order, the petitioner ought to have implemented the same, i.e. before 14th September, 2019. But, without any stay order from this Court and merely filling of the writ petition the authorities sat over the matter without implementing the impugned order.
Petition disposed off.
-
2019 (11) TMI 1725
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - exIStence of debt and dispute or not - time limitation - HELD THAT:- The limitation in the present case shall start running when the right to apply accrued which is the date of default e. 01.01.2015 therefore, the Petition should have been filed before 01.01.2018 however, it was filed on 25.01.2019 rendering the Petition time barred. The Petitioner however drew my attention towards acknowledgement by the Respondent in various letters written by the Respondent to the Petitioner for settlement of dues that saves the limitation in the present case by virtue of section 18 of the Limitation Act. On 18.12.2016, i.e. within the limitation period, admittedly, an OTS proposal was sent by the Respondent, it appears from the record that even after this date several proposals were sent.
From the letters, it is dear that the debt and liabilities have been acknowledged by the Respondent which falls under the purview of section 18 of the Limitation Act, thus are an acknowledgment of debt. Also, in view of the statements made in the letters, there are no strength in the argument of Respondent that admission was not dear and unequivocal - it is held that the Petition was filed within limitation period.
The present Petition has been filed in proper form. The Petitioner has produced several documents including loan sanction letter, final recall notice, CIBIL report, etc. The Petitioner has also proposed the name of interim resolution professional and filed the original written communication by the said professional. It seems that all the compliance under section 7 of the I&B Code has been made - Also, Mr. M.K. Zama working as Assistant General Manager with the Petitioner Bank has been properly authorised by the General Manager (Recovery, Legal, Credit Monitoring, RTI, DRT & SAMV) to initiate CIRP against the Respondent Company on behalf of the Bank.
Petition admitted - moratorium declared.
-
2019 (11) TMI 1724
Income deemed to accrue or arise in India - Taxability of income earned by the Assessee in respect of a contract entered into by it with ONGC Limited, a public sector enterprise (hereafter ‘ONGC’) - existence of an Assessee’s PE in India in terms of Article 5 of the DTAA - HELD THAT:- It is not in dispute that in assessee’s own case for the AYs 2007-08 and 2008-09 [2016 (2) TMI 47 - DELHI HIGH COURT] the Hon’ble High Court held the issue in favour of the assessee. It could be seen from the record that the orders passed by a coordinate bench of this Tribunal for the AYs 2009-10 and 2010-11 were upheld by the Hon’ble jurisdictional High Court in [2017 (2) TMI 1514 - DELHI HIGH COURT] and [2019 (7) TMI 1920 - DELHI HIGH COURT] respectively. The issue is no longer res integra and covered by the orders of the Hon’ble High Court in assessee’s own case for the AYs 2007-08 to 2010- 11. We, therefore, do not find any illegality or irregularity in the finding reached by the learned CIT(A) and consequently, find the grounds of appeal of the revenue as devoid of merits. Appeal of the revenue is accordingly dismissed.
Appeal of the revenue is dismissed.
-
2019 (11) TMI 1723
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Corporate Debtor argued that there is no liability of payment of amount to the Petitioner, the notice issued by the Petitioner is not a valid notice - HELD THAT:- Admittedly, there is a confirmation of debt on 12.02.2019 by the Corporate Debtor, which shows that there is an unpaid amount of ₹ 4,90,01,183/- outstanding payable to the Petitioner which has not been repaid, and the Corporate Debtor has not denied the issuance of the confirmation of balance. If there was no liability, why was the confirmation of balance dated 12.02.2019 issued by the Corporate Debtor. Hence debt and default are proved.
Application admitted - moratorium declared.
-
2019 (11) TMI 1722
Jurisdiction to hear and entertain an application - Section 9 of the Arbitration and Conciliation Act, 1996 - Seeking prohibition/restraint from disturbing, dispossessing or causing any disturbance/obstruction/obstacle in exclusive actual physical possession of the Possessed Leased Premises - HELD THAT:- A non obstante clause is generally appended to a section with a view to give the enacting part of the section, in case of conflict, an overriding effect over the provision in the same or other Act mentioned in the non obstante clause. It is equivalent to saying that inspite of the provisions or Act mentioned in the non obstante clause, the provision following it will have its full operation or the provisions embraced in the non obstante clause will not be an impediment for the operation of the enactment or the provision in which the non obstante clause occurs.
When two or more laws or provisions operate in the same field and each contains a non obstante clause stating that its provision will override those of any other provisions or law, stimulating and intricate problems of interpretation arise. In resolving such problems of interpretation, no settled principles can be applied except to refer to the object and purpose of each of the two provisions, containing a non obstante clause. Two provisions in same Act each containing a non obstante clause, requires a harmonious interpretation of the two seemingly conflicting provisions in the same Act. In this difficult exercise, there are involved proper consideration of giving effect to the object and purpose of two provisions and the language employed in each.
From the language of the definition of the term the "Court" under Section 2(e) of the Act of 1996 the Parliament apparently intended to confer the power on the highest judicial authority in a district. It must certainly be taken to have been conscious of the object to be achieved while framing the definition of the term "Court". Besides, it intended to minimize the supervisory role of the Courts in the arbitral process. It also intended to add the greatest credibility to this process - It is thus that the Legislature clearly circumscribed and specifically narrowed down the definition of the term "Court" to mean only the Court of the principal civil original jurisdiction in a district and it is only the Court of "District Judge" in a district which is such a "Court" of principal civil jurisdiction.
The application preferred by the applicant under Section 9 of the Act, 1996 could have been entertained only by the District Court at Dahod in view of the specific definition of the term 'Court' as defined under Section 2(e) of the Act, 1996 to be read with the Section 11 of the Act, 2015.
Application allowed.
-
2019 (11) TMI 1721
Release of the confiscated goods - Gold of foreign origin - seeking stay of the orders of the Commissioner(Appeals) vide which he has overturned the decisions of the lower authority - HELD THAT:- There is no legal provision under the Customs Act under which stay can be granted by CESTAT. The only legal provision which was available to the CESTAT was the provision of staying the pre-deposit prior to the amendment requiring mandatory pre-deposit.
The Miscellaneous Applications for stay are dismissed as there no legal provision for grant of stay.
-
2019 (11) TMI 1720
Levy of penalty in terms of Section 27(4) of the Tamil Nadu Value Added Tax Act, 2006 - wrongful availment of ITC - stock transfers - errors apparent on the face of record - HELD THAT:- In the present case the tax due has been quantified as 'nil' in all the impugned orders (see the tabulation at paragraph 9). This is an admitted position. We are not concerned with the demand of purchase tax raised, for the reason that the reference to 'tax due' in Section 27(4) relates specifically to amount computed under Section 27(2) of Act and not under Section 12, relating to purchase tax. Thus, in a case such as the present, where there is no tax computed, the machinery for computation of penalty, being a percentage of the tax due, fails. The revenue is unable to produce any other order of assessment passed subsequent to order of this Court dated 01.02.2016 raising a demand of tax on reversal of ITC.
The scheme of assessment & levy of penalty in terms of Section 27(2) read with Section 27(4), supports the position that the quantification of tax should result in an actual 'due' from the assessee in order to render the provision for levy of penalty workable.
The issue arising for determination as to the leviability of penalty per se, is a legal issue and hence the petitioner need not be relegated to statutory appellate remedy - petition allowed.
-
2019 (11) TMI 1719
Assessment order in the name of an entity which is no longer in existence - assessee Company has amalgamated / merged and no longer in existence - HELD THAT:- Undisputedly, the final assessment order has been passed in respect of an entity which has ceased to exist long back. Now, it is fairly well settled that no order can be passed in respect of a non- existing entity. The Hon'ble Delhi High Court in Spice Entertainment Ltd. [2011 (8) TMI 544 - DELHI HIGH COURT] has held that once a company merges with another company by virtue of a scheme of amalgamation, it will lose its existence after such merger.
An order passed against a non-existing entity has to be declared as invalid. Admittedly, in the facts of the present case, the Assessing Officer has passed the final assessment order in the name of a non-existing entity. Therefore, as per the ratio laid down in the judicial precedents referred to above, the assessment order has to be declared as invalid. Accordingly, we do so and quash the final assessment order - Decided in favour of assessee.
-
2019 (11) TMI 1718
Whether Circular No. 162/73/95-CX dated 14th December, 1995 issued by the Central Board of Excise and Customs, Department of Revenue, Ministry of Finance, Government of India is in conformity/ authorized by the provisions of Section 37B of the Central Excise Act, 1944 read with the relevant provisions of the Central Excise Rules? - HELD THAT:- Issue Notice.
-
2019 (11) TMI 1717
Deduction u/s 80IA - assessee made no such claim in its return u/s 139(1) which was mandatory in view of the provisions of section 80A(5) read with section 80AC - scope of revised return was filed u/s 139(5) - CIT-A deleted the addition - HELD THAT:- In this case, the assessee has filed a return u/s 139(1) within due date specified date, but the claim for deduction u/s 80IA, in respect of second unit was not made, however a revised return was filed u/s 139(5) within due date specified under the Act and made additional claim for deduction, in respect of second unit. When original return was filed within due date specified u/s 139(1), then any revised return filed within the due date specified u/s 139(5) to rectify any mistakes or omissions or wrong statements made in the return already filed u/s 139(1), then the revised return takes, the nature of the original return filed within due date specified u/s 139(1) and consequently, the assessee fulfills the conditions prescribed u/s 80AC of the Act, in order to be eligible for deduction u/s 80IA of the I.T. Act, 1961.
CIT(A) after considering relevant facts has rightly deleted additions made by the AO towards disallowances of deduction claimed u/s 80IA - No reasons to interfere in the order of the Ld. CIT(A) and hence, we are inclined to uphold the findings of the Ld. CIT(A) and reject ground taken by the revenue.
Addition u/s 14A - disallowance of expenditure incurred in relation to exempt income - HELD THAT:- We find that the Ld. DR for the revenue did not dispute the fact that there is no exempt income earned for the year under consideration. When there is no exempt income, the question of disallowance of expenditure incurred in relation to said exempt income does not arise. This legal proposition is supported by the decision of Hon’ble Bombay High Court in the case of CIT vs M/s. Ballarpur Industries [2016 (10) TMI 1039 - BOMBAY HIGH COURT] where it was categorically held that provision of section 14A would not apply, in case, there is no exempt income was received or receivable during the relevant previous year - Decided in favour of assessee.
Re-computation of book profit u/s 115JB in respect of disallowance of expenditure incurred in relation to exempt income u/s 14A - HELD THAT:- We find that the Ld. CIT(A) has correctly deleted adjustments made by the AO to book profit computed u/s 115JB in respect of 14A disallowances by following the decision of M/S. BENGAL FINANCE & INVESTMENTS PVT. LTD. [2015 (2) TMI 1263 - BOMBAY HIGH COURT] where it was held that amount disallowed u/s 14A of the Act, cannot be added to arrive at book profit for purpose of section 115JB - Also VIREET INVESTMENT (P.) LTD. [2017 (6) TMI 1124 - ITAT DELHI] where it was held that computation under clause (f) of Explanation (1) to section 115JB(2) is to be made without resorting to computation as contemplated u/s 14A r.w.s. Rule 8D. We find that the finding of facts recorded by the Ld. CIT(A), in light of above two decisions is in accordance with law and does not called for any interference - Revenue appeal dismissed.
-
2019 (11) TMI 1716
Grant of exemption notification u/s 10(46) - Scope of definition the word “commercial activity’ - distinguish commercial activity which constitutes disqualification under clause (b) to Section 10(46) and charging and payment of fee, service charges, reimbursement of costs or consideration for transfer of rights for performing and undertaking regulatory or administrative duties for general public interest, when these are not guided and undertaken with profit motive or intent - as per HC petitioner’s activities, it is held, are not “commercial activity” within the meaning of clause (b) to Section 10(46) of the Act. Directions are issued to the respondents to accordingly issue the necessary notification under the aforesaid Section in respect of the "specified income" - HELD THAT:- SLP Dismissed.
-
2019 (11) TMI 1715
Requirement of registration - commission agent, providing services in relation to sale or purchase of agriculture produce - reverse charge mechanism on services provided in sale of raw cotton vide notification No. 121/ST-2, dated 14.11.2017 - HELD THAT:- The provisions of Sections 7(l)(c) of the CGST/HGST Act are relevant. The provisions of the Section 7(1) clause (c) provide that the activities specified in schedule I shall be treated as supply under GST, even if made without consideration. One such activity, as detailed in Para 3 of schedule I, is in relation to the activities between the principal and his agent. The scope of principal-agent relationship in the context of Schedule I of the CGST Act is clarified by circular No. 57/31/2018-GST dated 04th September, 2018 (to be read with the corrigendum dated 05th November, 2018). As clarified vide above circular, the crucial component for covering a person within the ambit of the term 'agent', as contained in sub Section (5) of Section 2 of the CGST Act, is corresponding to the representative character identified in the definition of agent under the Indian Contract Act, 1872. The said circular further clarifies that a key ingredient for determining whether the agent is wearing the representative hat and is supplying or receiving goods on behalf of the principal would be whether invoice for further supply or goods on behalf of the principal is being issued by the agent or not.
Since, a commission agent 'Kachha Arhtiya' supplies goods to the buyers against 'Form I' as prescribed under the APMC Act of the State, vide which the titled of goods is passed on to the buyer against an agreed upon rate of the goods. The commission agent also charges its commission and other incidental charges through the said Form I under the APMC Act. The said Form I issued under the APMC Act is therefore sufficient test to hold that the commission agent i.e. 'Kachha Arhtiya' is supplying goods on behalf of agriculturists and is covered under the definition of 'agent' as contained in sub Section (5) of Section 2 of the CGST/HGST Act.
There is no merit in the argument of the appellant that he cannot be treated as recipient in terms of definition of recipient, as contained in Section 2(93) of the Acts ibid. Further, the reliance on circular No. 452, dated 17.03.1986 by the Central Board of Direct Taxes on this issue is also misplaced.
The advance ruling authority has therefore rightly held that such commission agents are liable for registration since they qualify as agents under schedule I subject to the provisions of Section 22(1) of the Acts ibid where the aggregate turnover of supply of exempted as well as taxable goods or services exceeds the threshold limit and that such commission agents shall also be liable for compulsory registration as per provisions of Section 24 (vii) of the Acts ibid and they shall be liable to charge tax on RCM basis on supply of Taw cotton'.
-
2019 (11) TMI 1714
TP Adjustment - comparable selection - HELD THAT:- Companies functionally dissimilar with that of assessee need to be deselected from final list.
Delayed payment of employees contribution towards PF and ESIC u/s 36(1)(va) rws 2(24)(x) - HELD THAT:- We direct the AO to allow the deduction of employees contribution to PF provided assessee has remitted the same into Govt. a/c before the due date of furnishing the return of income u/s 139(1) of the Act. This ground is allowed.
-
2019 (11) TMI 1713
Depreciation Claim u/s 32 of assessee trust - double deduction on account of depreciation - HELD THAT:- The reliance on the decision of the Escorts [1992 (10) TMI 1 - SUPREME COURT] in the question, does not support the contention of the Revenue. This for the reason that it did not deal with the issue of an exemption available to the Trust under Section 11 of the Act. It was concerned with the issue of double deduction being claimed under Section 35 of the Act i.e. capital expenditure on scientific research and depreciation under Section 32 of the Act. The issue of Section 11 of the Act has been directly dealt by the Apex Court in Rajasthan & Gujarati Charitable Foundation, Pune [2017 (12) TMI 1067 - SUPREME COURT]Thus, it would apply to the present facts.In view of the above, the question as framed does not give rise to any substantial question of law. Thus, not entertained.
Carry forward of the deficit - This issue also stands concluded against the Revenue by the decision of the Apex Court in CIT (Exemption) v/s. Subros Educational Society [2018 (4) TMI 1622 - SC ORDER]
-
2019 (11) TMI 1712
Revision u/s 263 by CIT - allowance claimed by assessee on rubber tree plantation under Rule 7A(2) - HELD THAT:- Admittedly, Ld.AO at the time of original assessment proceedings did not verify claim of assessee under Rule-7A(2). There is nothing on record to establish that even a query was raised by AO in regards to the claim. From the statement furnished by the assessee, we note that the amount represent opening balance and the same has been capitalized by the assessee. During the year under consideration assessee has incurred expenses of ₹ 8,80,48,770/- out of which a sum of ₹ 89,10,452/- was capitalized. Accordingly, a sum of ₹ 7,91,38,318/- was claimed as expenses under Rule 7A. We notice that Ld. CIT has not appreciated these facts, in proper perspective. We are of the opinion, that CIT(A) should look into the facts once again. Accordingly, we set aside the order passed by Ld. CIT, and restore all issues to his file for examining them afresh - Appeal filed by assessee allowed for statistical purposes.
-
2019 (11) TMI 1711
Amortization / depreciation on goodwill u/s 32 - HELD THAT:- The impugned order of the Tribunal dismissed the Revenue’s appeal upholding view of the Commissioner Income Tax (Appeals) that depreciation on account of goodwill is available to the Respondent. This by following the decision in the case of Commissioner of Income Tax(Appeals) Vs. Smifs Securities Ltd.[2012 (8) TMI 713 - SUPREME COURT]
Both the Commissioner Income tax (Appeals) and the Tribunal have come to a concurrent finding of fact on the basis of the scheme of amalgamation that the amount to be paid for taking over the assets of the transferer Company be treated as goodwill to the extent they are in excess of the assets taken over.
The issue stands concluded by the decision of the Apex Court in the case of Smifs Securities (supra), the question as proposed does not give rise to any substantial question of law. Thus not entertained.
-
2019 (11) TMI 1710
Levy of GST - collection of Sopo from vendors for occupation of space (both open and covered) in the Municipal Market area - Renting of immovable property or not - whether making available a space, both open and covered within the area of the Municipal Market to vendors, hawkers and small merchants is covered in “Services by way of any activity in relation to a function entrusted to a Panchayat under article 243G of the Constitution or to a Municipality under article 243W of the Constitution? - HELD THAT:- The Eleventh Schedule of Constitution of India includes entry of markets and fairs at Si. No. 22. However, no such entry is available in Twelfth Schedule. The applicant here is Municipality and as such cannot be said to be providing services by way of an activity in relation to a function entrusted to a Municipality under Article 243 W of the Constitution. Moreover, such fees for occupation of open space are collected even by private parties in arears where there are business activities, as such it is not the function which is entrusted to local authority in which it is engaged as public authority.
GST is payable on collection of Sopo from 1 July, 2017.
-
2019 (11) TMI 1709
Classification of service - works contract service or not - composite supply or not - change in the rate of GST - supply of labour force/work without material by a sub-contractor to main contractor, who is engaged in supply of “works contract” service - whether reduced GST rate from 18% to 12% is applicable also to such sub-contractors supplying labour force/work without material to the main contractor who is engaged in supply of “works contract” service? - HELD THAT:- The applicant is a person registered under the provisions of GST Act, 2017 and is engaged in supply of labour force/work to M/s MVR, who are engaged in supply of “works contract” service - the natures of works undertaken by the applicant are predominantly dumping of soil from one place to another place and in relation to excavation. The applicant is performing his task with help of his men and machines, and he is not supplying any material to the main contractor.
The “works contract” is a composite supply and it is composition of activities of building, construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repairs, maintenance, renovation, alteration or commissioning carried out on an 'immovable property' and transfer of property (whether in form of goods or in some other form) must essentially take place with such activities. The supply of “works contract” is to be treated as supply of service but it is combination of supply of service and supply of goods. Transfer of property in goods (whether as goods or in some other form) is an essential component of supply to be treated as “works contract” service.
Thus, there is no transfer of property from the applicant to the main contractor (M/ s MVR) while performing the work of dumping of soil from one place to other place or while activity of excavation. The applicant is merely performing labour work. Therefore, the activities carried out by the applicant cannot be treated as “works contract”.
-
2019 (11) TMI 1708
Set off of Long Term Capital Gains (LTCG) against brought forward Long Term Capital Loss (LTCL) - assessee claimed set off of LTCG arising from the sale of flat in Mumbai against brought forward capital loss arising from sale of shares of public limited company listed in Stock Exchange - AO held LTCG where STT is paid, is exempt from tax u/s 10(38) and loss arising from the sale of shares of listed companies in Stock Exchange with STT paid is dead loss and denied set off of Long Term Capital Gains against brought forward loss - HELD THAT:- We find that Co-ordinate Bench of this Tribunal in case of Shri Somnath Vaijanath Sakre [2019 (3) TMI 1689 - ITAT PUNE] for assessment year 2012-13 held that the assessee therein is entitled to set off loss of Long Term Capital Gains from the shares on which security transaction is paid or payable against the Long Term Capital Gains earned from shares on which no security transaction is paid or payable.
In order to come to such conclusion, Co-ordinate Bench placed reliance on the order of Mumbai ITAT in the case of Raptakos Brett & Co. Ltd., [2015 (6) TMI 529 - ITAT MUMBAI]. We find the facts and circumstances of the said case are similar, basing on same identical facts. Therefore, in our opinion, in the present case, the assessee is entitled to set off of brought forward losses from Long Term Capital Gains from the shares listed in Stock Exchange on which security transaction is paid or payable - Decided in favour of assessee.
-
2019 (11) TMI 1707
Seeking writ, order or direction in the nature of mandamus commanding the respondents not to recover any amount from the petitioner towards the alleged demand with regards to the quantity of Indian made Foreign Liquor destroyed due to fire accident - constitutional validity of Rule 7(11) of the U.P. Bottling of Indian Made Foreign Liquor Rules, 1969 - vires of the U.P. Excise Act - HELD THAT:- The interest of justice will suffice, in the present case, if the Competent Authority/Respondent No. 2 is directed to consider and decide the application moved by the petitioner on 22.10.2019.
The Competent Authority/Respondent No. 2 is directed to decide the application moved by the petitioner on 22.10.2019, keeping in view the fact that the money deposited by the petitioner in pursuance of the interim order dated 25.07.2006 passed by this Court and subsequently, the writ petition was allowed by this Court vide judgment and order dated 10.04.2017, thereby setting-aside the impugned demand - Application allowed.
............
|
9911796707
