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Showing 141 to 160 of 1486 Records
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2020 (3) TMI 1347
Entitlement to deduction u/s 80IA - setting off of the loss of loss-making units against the profits of the profit- making units, without taking into consideration that deduction is provided to the eligible business and not for an undertaking - HELD THAT:- The proposed substantial question of law No.1 has been already answered M/S. KARNATAKA POWER CORPORATION LTD [2015 (1) TMI 1460 - KARNATAKA HIGH COURT].
MAT Computation u/s 115JB - whether the tribunal was correct in holding that section 115JB was not applicable to the assessee in view of Explanation - 3 to section 115JB without appreciating that the amendment is applicable only with effect from 1.4.2013 relevant Assessment year 2013-14? - HELD THAT:- Substantial question of law No.2 is answered by another Division Bench of this Court vide judgment M/S. ING VYSYA BANK LIMITED [2020 (1) TMI 1116 - KARNATAKA HIGH COURT]
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2020 (3) TMI 1346
Seeking to conclude the process of adjudication within the shortest possible time - petition has a chequered history - handing over copies of documents seized by the Respondent from the Petitioner during a search - HELD THAT:- The Court is of the considered view that the search proceedings which took place on 7th March, 2020 without the authority of law and cannot be sustained. The Panchnama drawn up on 7th March, 2020 is hereby quashed - Notwithstanding that Petitioner No.2 may have earlier appeared pursuant to the summons issued and may have provided documents, it is directed that the Petitioner No. 2 will now appear before the Senior Intelligence Officer of the DGGSTI at Gurugram on 25th March, 2020 at 11 a.m. He will be provided with the list of documents/ information that is required by the Respondents and Petitioner No.2 will cooperate in providing that information within a reasonable time to be provided to him by the Respondents.
In order to ensure that there is strict compliance with the above directions, the Court lists the present petition for further hearing on 17th April, 2020.
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2020 (3) TMI 1345
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The Financial Creditors everywhere mentioned the word 'deposit', therefore, the amount which he has deposited with the Corporate Debtor does not come within the purview of the definition of Financial Debt rather the Financial Creditors, admittedly, deposited the amount with the Corporate Debtor and in lieu of that he was getting interest from the Corporate Debtor, therefore, he can claim the refund under Chapter V of the Companies Act, read with Company (Acceptance of Deposits) Rule, 2014 - So far, the initiation of proceeding under Section 7 of the Code is concerned is not liable to be accepted.
Mere plain reading of the provisions shows that default means nonpayment of debt, whereas, the amount which the applicants deposited does not come under the definition of the debt. Therefore, it cannot be accepted that there is a default in payment of debt - the applicants have some other remedy under the law to recover the amount which they have deposited with the Corporate Debtor but so far initiation of the Section 7 of the IBC is concerned, the present application is not maintainable.
Application dismissed.
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2020 (3) TMI 1344
Seeking exclusion of period of 275 days from CIRP period - penalty on IRP on the charge of dereliction of duty on his part - HELD THAT:- The communication it is seen was made only on 27.11.2019 and all the facts points out to an all around dereliction of duty and are absolute negligence on the part of the Operational Creditor and as well as the IRP. The Operational Creditor in its own interest and acting on behalf of the other creditors, the CIRP being a proceeding in rem had to communicate the same to the IRP/Applicant for proceeding with the CIRP which has not been done in this case.
Penalty on IRP - HELD THAT:- In the case of M/s. Takkshill Enterprises –vs M/s. IAP Company Pvt. Ltd, [2018 (7) TMI 1632 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI] the Appellate Tribunal had chosen to waive the fine imposed by this Tribunal and stated that if any dereliction of the duties on the part of the IRP only IBBI can initiate action on the IRP and in the circumstance it is deemed appropriate in this matter to transmit the records to the IBBI by the Registry and the IBBI to initiate suitable action as may be deemed appropriate.
Application disposed off.
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2020 (3) TMI 1343
Attachment of property - grievance expressed by the petitioner is that the E-auction notice does not contain the encumbrance pursuant to the order of trial Court in the suit filed by petitioner, attaching the properties before judgment - HELD THAT:- Since the Bank has given a specific reply that they have prior charge and that the petitioner's claim would be considered if there is any excess amount is realised after discharging the entire dues of bank, the petitioner has approached this court stating that the E-auction notice should contain the encumbrance and that the petitioner's right will be in jeopardy, if the encumbrance is not disclosed in the E-auction notice by the respondent bank - This court is unable to accept the contention of the petitioner that he is aggrieved by not referring to the order of attachment in the E-auction notice. First of all the petitioner is not a secured creditor and the order of attachment is much later to the proceedings initiated by the Bank under Securitization Act.
Whether the Bank is required to accept the order of attachment before Judgment as an Encumbrance so as to disclose the same in the sale notice? - HELD THAT:- In this case, it is admitted that the bank has got the first charge in view of the mortgage and it is not in dispute that the proceedings for recovery of money had already been initiated by resorting to the provisions of Security Interest (Enforcement) Rules 2002. In such circumstances by virtue of Section 64 of Civil Procedure Code and Order 38 Rule 10 of C.P.C., the order of attachment is not binding on the bank to proceed against the property in the manner known to law as a secured creditor. The order of attachment before Judgment in a suit in which the Bank is not a party is not an encumbrance so as to affect the rights of Bank or the title of purchaser of property in the auction at the instance of Bank - As far as the Bank whose right as Secured Creditor is protected and the order of attachment in this case is not an encumbrance.
TAs far as the Bank whose right as Secured Creditor is protected and the order of attachment in this case is not an encumbrance - the writ petition is neither maintainable nor having merits - petition dismissed.
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2020 (3) TMI 1342
Refund of Service tax - export service or not - intermediary as defined under Place of Provision of Service Rules, 2012, or not - HELD THAT:- According to the said service agreement, the appellants had undertaken research activity related to the market scenario of steel sector in India and supplied the same to their parent company. They were not involved in any manner regarding execution of sale, arranging of customer in India or providing any guarantee for and on behalf of the company. ‘Intermediary Service’ has been defined under Rule 2(f) of the Place of Provision of Service Rules, 2012 - As per Rule 2(f) of the Place of Provision of Service Rules, 2012, to attract the said definition there should be two or more persons besides the service provider.
In the present case, the appellants are providing services to their parent company at Japan and they did not involve in any manner in the activity of negotiation for sale and purchase of goods in India or collection of sale proceeds from customers on behalf of the parent company, hence cannot be called as an ‘intermediary’ and, accordingly, do not fall under Rule 9(c) of the Place of Provisions of Service Rules, 2012 - denying the cash refund of the accumulated Cenvat credit for the intervening period is bad in law.
The order of Learned Member (Judicial) as well as of Learned Member (technical) are on same lines - refund is to be allowed - appeal allowed - decided in favor of appellant.
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2020 (3) TMI 1341
Dishonor of Cheque - application filed by petitioner for sending the cheque to the Forensic Science Laboratory, Thiruvananthapuram to obtain opinion regarding the handwriting of the entries in the cheque - respondent filed objection to the aforesaid application contending that the intention of the petitioner was only to protract the case and to cause delay in the disposal of the case.
HELD THAT:- The petitioner/accused has also no case that she had filled up the cheque in her own handwriting - When, neither the complainant nor the accused, has got a plea that the accused herself made the entries in the cheque, it eludes comprehension why the cheque should be sent for obtaining an opinion of the expert with regard to the handwriting of the entries in it.
When the accused admits the signature in the cheque, it is immaterial whether some other person had made the entries in the cheque or filled it up. Even if some other person had filled up the cheque, it does not in any way affect the validity of the cheque - there are no illegality or impropriety in Annexure-A order passed by the learned Magistrate. The intention of the petitioner/accused was only to protract the proceedings in the case. The challenge made to Annexure-A order fails. The petition is liable to be dismissed.
Petition dismissed.
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2020 (3) TMI 1340
Deduction u/s.35AC on account of donation given by the appellant - as submitted that appellant has given donation to the registered Charitable Trust by Account Payee cheques relying on the documents produced before him by the trustee of the trust - Also appellant has submitted the receipts issued by the trust to the A.O. at the time of scrutiny proceedings. Merely on the basis of survey conducted by Investigation Wing, the donation should not be disallowed. - HELD THAT:- AO failed to conduct any inquiry before making disallowance and did not brought on record any fact to establish that donation given by the assessee was subsequently returned back in cash except mere allegations. Reliance was placed on the decision of Hon’ble Delhi High Court in CIT V/s A and A Bakery P. Ltd. [2007 (3) TMI 235 - DELHI HIGH COURT] to support the conclusions.
Finally, the disallowance was deleted. We find that fact to be pari-materia the same in this year. The assessee has duly discharged the onus casted upon him and it was incumbent upon Ld. AO to refute the same. However, no such inquiry has been conducted and the disallowance has been made on mere allegations. Therefore, respectfully following the earlier order [2019 (9) TMI 1541 - ITAT MUMBAI] we delete the disallowance as made by Ld. AO.
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2020 (3) TMI 1339
Enhancement of penalty - fraudulent availment of CENVAT Credit - premises taken on lease, genuine or not - also, the address declared in the registration certificate was not genuine - HELD THAT:- The respondent had obtained the dealer registration from the Department. After necessary investigation by the Department, it was noticed that the address declared in the registration certificate was not genuine. Accordingly, the invoices issued by the respondent dealer were held to be invalid. Consequently, on adjudication, penalty was imposed on the dealers-respondent and also imposed on the second stage dealers, who had purchased the goods from the Respondent and issued invoices to the manufacturers.
The respondents are first stage dealers and it is the only evidence against the respondent that the premises declared by them being taken on lease, found to be not genuine when contradictions were noticed relating to the Rent Agreement. Accordingly, it is presumed that the goods in question purchased by them and CENVAT Credit ultimately passed on to the second stage dealer/manufacturer could not also be genuine. There is no conspiracy theory established by the Revenue involving the manufacturer of inputs, and first stage dealer/ second stage dealer and the end user manufacturer of the inputs involving the respondent.
The Commissioner imposed penalty when contradictions were noticed in the declaration filed for obtaining Dealer’s Registration and also the quantum of penalty accordingly determined. Since no other evidence has been brought on record by the Revenue to establish any complicity on the part of the respondent, the impugned order does not warrant any interference - Appeal dismissed - decided against Revenue.
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2020 (3) TMI 1338
Classification of goods - Jarda Scented Tobacco or not - whether it is Chewing Tobacco without lime tube falling under CSH 2403 99 10 or Jarada scented Tobacco under CSH 2403 99 30 of CETA, 1985 so as to apply the appropriate duty under the relevant notification notified under Sec. 3A of Central Excise Act, 1944? - HELD THAT:- There are no apparent error in the finding of the Learned Commissioner (Appeals). The proposed change of classification of the commodity elaborately analysed along with the test reports and other evidences in the show cause notice dated 1-7-2016. Since, the Respondent had not challenged the annual capacity of production determined by the Dy. Commissioner, but challenged only the classification of the commodity, thus , instead of deciding the classification of the commodity, Learned Commissioner (Appeals) left it open and disposed the appeals. Impliedly, since the classification issue was not determined by the Learned Commissioner (Appeals), the respondent also have not challenged the said order.
The Commissioner should proceed with the adjudication of show cause notice dated 1-7-2016 to which both sides have fairly agreed. The Respondent is at liberty to adduce evidences in support of their case before the adjudicating authority. The adjudication be completed at the earliest after affording reasonable opportunity the Respondent-assessee. The Respondent to co-operate and avoid seeking unwarranted adjournments.
Appeal disposed off.
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2020 (3) TMI 1337
Estimation of income - bogus purchases - Tribunal confirming the addition being 25% of the alleged bogus purchases - HELD THAT:- As in the facts of the present case, as the Co-ordinate Bench of this Court has already dismissed Cross Appeal filed by the Revenue confirming the order passed by the Tribunal, it would not serve any purpose to remand the matter back to the Tribunal so as to give finding of fact in order to ascertain whether the decision of this Court in GUJARAT AMBUJA EXPORT LTD. [2014 (2) TMI 1344 - GUJARAT HIGH COURT] would be applicable so as to restrict the addition to 5% of the total bogus purchase made by the assessee from M/s Vishal Traders.
Assessee did not give any explanation in respect of the bogus purchases and also taking note of the fact that during the course of appellate proceedings the remand report was called for from the Assessing Officer in that regard and after considering the remand report, the CIT(A) found as a matter of fact the purchases shown from Vishal Traders were not actual purchase but only bills had been obtained and the cheques issued to M/s Vishal Traders were only an eye wash, the cash was returned back to the assessee.
The assessee in the present case has not placed on record either before Assessing Officer or before CIT(A) with regard to its GP rate or maintenance of the stock register or to show that the prices shown in the bills of the Vishal Traders where the current prevailing price of the goods, which was shown as purchases by the assessee. The CIT(A) has carried out a detailed inquiry and on analysis of facts has come to the conclusion that as the purchases claimed from the Gayatri Cotton could not be substantiated by the appellant-assessee and there is nothing on record to show that the cash purchases made by the appellant were true and correct.
No purpose would be served to remand the matter back to the Tribunal so as to give an opportunity of hearing to the appellant as the Tribunal has passed the impugned order in absence of the appellant.
No legal infirmity of the impugned order passed by the Tribunal - No substantial question of law.
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2020 (3) TMI 1336
Refund of service tax - rejection on the ground of time limitation - refund claim was filed beyond the period of one year from the relevant date - Section 11B of the Central Excise Act, 1944 as made applicable to Service Tax matters by Section 83 of Finance Act, 1994 - HELD THAT:- The issue involved in the matter is squarely covered by the decision of the Larger Bench of Tribunal In the case of M/S VEER OVERSEAS LTD. VERSUS CCE, PANCHKULA [2018 (4) TMI 910 - CESTAT CHANDIGARH] where it was held that time limit prescribed under Section 11B of the Central Excise Act, 1944 will govern claim for refund of service tax.
Since the issue is squarely covered by the decision of the Larger Bench of the Tribunal, there are no merits in this appeal.
Appeal dismissed.
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2020 (3) TMI 1335
Exparte order passed by the Tribunal - non-appearance of the assessee on the date of hearing - assessee submitted that during the month of December 2018 assessee has shifted offices of its group concerns and the notice received fixing the date of hearing on 19.03.2019 was misplaced due to shifting of office premises - HELD THAT: - As non-appearance of the assessee on the date of hearing was not due to negligence on its part nor any willful default but was solely due to the reason beyond the control of the assessee, considering the submissions of both the parties and verifying the records and the contents and affidavit filed along with Miscellaneous Application are considered. We are of the view that the appeal should be recalled and an opportunity to the assessee to represent its case should be given to meet the principle of natural justice. Thus, we recall the exparte order passed by the Tribunal
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2020 (3) TMI 1334
Disallowance u/s.10(38) - Bogus LTCG - HELD THAT:- Clearly the facts in the present case shows that the transactions in the case of the assessee is through recognized Stock Exchange and through a Broker who is not in the tainted list. The transactions have been made through Demat Account and the payments and receipts through the banking channels only. More than anything else, in the assessee’s case, the transactions are not transactions which are of twelve months or of around twelve months, these are transactions having more than five year holdings. Just because the company whose shares the assessee has dealt in has been identified as a Penny Stock, cannot make the transactions of the assessee ineligible for the deduction u/s.10(38).
Assessing Officer is directed to grant the assessee the benefit of deduction u/s.10(38) as claimed. - Decided in favour of assessee.
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2020 (3) TMI 1333
Permission for withdrawal of appeal - Appellant states that she may be permitted to withdraw the Appeal with liberty to the Appellant to pursue appropriate remedies in appropriate forum - HELD THAT:- The Appeal is disposed as withdrawn with liberty to the Appellant to pursue appropriate remedies available in appropriate forum.
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2020 (3) TMI 1332
Permission for withdrawal of appeal - amicable settlement between parties or not - HELD THAT:- The settlement amount is agreed to be paid as provided in Para 3 of the consent terms. The consent terms, having been agreed to by the Parties, are binding on the Parties and in view of the consent terms, Respondent No. 1 is required to withdraw the application filed under Section 9 of Insolvency and Bankruptcy Code, 2016 before the Ld. Adjudicating Authority.
It is deemed appropriate to invoke our inherent powers in terms of Rule 11 of the National Company Law Appellant Tribunal Rules and dispose of the Appeal as per the consent terms. Corporate Debtor is released from the rigour of Corporate Insolvency Resolution Process. The Adjudicating Authority is directed to close the case. The consent terms takes care of the fee of the Resolution Professional as also resolution costs and the IRP admits that all such fee and costs have been paid - appeal disposed off.
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2020 (3) TMI 1331
Levy of GST on supply of goods & services by way of catering to students of Govt. Industrial Training Institute, Kalamassery as per the Govt. Scheme for ₹ 12.40/- per student per day - requirement of GST registration - applicability of TDS under Section 51 of the GST Act - refund of GST is eligible in the case of TDS deducted and paid - HELD THAT:- The supply made by the applicant falls under Service Classification Code - 9963 - 996337 - Other contract food services - as per the Scheme of Classification of Services notified as Annexure to Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 - As per the Explanatory Notes to the Scheme of Classification of Services this service code includes food preparation and /or supply services based on contractual arrangements with the customer, at institutional, governmental, commercial or industrial locations specified by the customer other than for transportation companies, on an ongoing basis; food service concession services, i.e. the provision of operating services by operators of eating facilities such as canteens and cafeterias.
The exemption to catering, including any mid-day meals scheme sponsored by the Central Government, State Government or Union territory; provided to an educational institution as per Sl. No. 66 of the Notification No. 12/2017 Central Tax (Rate) dated 28.06.2017 is not applicable to institutions other than institutions providing services by way of pre-school education and education up to higher secondary school or equivalent.
As per the details of the academic qualifications prescribed for admission to the courses conducted by the ITI, the institute can be classified as an institution providing services by way of education up to higher secondary school or equivalent. As the exemption to catering, including any mid-day meals scheme sponsored by the Central Government, State Government or Union territory; provided to an educational institution as per Si No. 66 of the Notification No. 12/2017 Central Tax (Rate) dated 28.06.2017 is applicable to the institutions providing services by way of education up to higher secondary school or equivalent, the catering services to the trainees in the Industrial Training Institute is eligible for exemption from GST.
Requirement of GST registration - HELD THAT:- As per Section 22 of the CGST/SGST Act, 2017; every supplier shall be liable to be registered under this Act in the State from where he makes a taxable supply of goods or services or both, if his aggregate turnover in a financial year exceeds twenty lakh rupees. Section 23 (1) of the CGST Act, 2017 stipulates that any person engaged exclusively in the business of supplying goods or services or both that are not liable to tax or wholly exempt from tax shall not be liable to registration. In view of the provisions of Section 23 of the CGST Act, 2017, the applicant is not liable to registration if the applicant is exclusively engaged in the supply of goods / services.
Applicability of TDS under Section 51 of the GST Act - HELD THAT:- As per Section 51 of the CGST/SGST Act, 2017 a department or establishment of the State Government shall be liable to deduct tax at the rate of two per cent from the payment made or credited to the supplier of taxable goods or services or both, where the total value of such supply, under a contract, exceeds two lakh and fifty thousand rupees. As the activity of the applicant is exempted from GST the provisions of TDS is not attracted.
Refund of GST is eligible in the case of TDS deducted and paid - HELD THAT:- The amount deducted as TDS will be credited to the Electronic Cash Ledger of the applicant on filing of TDS returns by the Deductor as the applicant is registered. Since the supply made by the applicant is exempted from GST, the applicant can claim refund of the excess balance in the Electronic Cash Ledger as per provisions of Section 54 of the CGST Act, 2017.
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2020 (3) TMI 1330
Sanction of scheme of Amalgamation - section 230 to 232 of the Companies Act, 2013 - HELD THAT:- Considering the factual details, the profit earning capacity and other financials of the Transferor-I and Transferor-II Companies, the share exchange ratio as per the valuation given by the Auditor and the Fairness Opinion given by the Merchant Banker appears to be too high which results in undue advantage/ enrichment to the shareholders of both the Transferor Companies and to the shareholders of the ultimate holding Company RHI Magnesita. Therefore, we are of the considered view that the Scheme is devised/ designed majorly to benefit the Two shareholders of Transferor Company-I and few shareholders of Transferor Company-II which in turn the undue advantage ultimately flows to the shareholders/ holding Company, i.e. RHI Magnesita.
The Scheme appears to benefit only a few shareholders of Transferor Company to be unfair and unreasonable and contrary to the public policy, public shareholders of the listed Company therefore, we deem it fit not to sanction/ approve the proposed Scheme of Amalgamation - The scheme cannot be sanctioned.
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2020 (3) TMI 1328
Sanction of Scheme of Amalgamation - section 230-232 of Companies Act - seeking directions regarding holding and convening of various meetings - HELD THAT:- Since the Scheme is an arrangement between the Applicant Company and its shareholders in accordance with the provisions of section 230(1)(b) of the Companies Act, 2013, the meeting of the Unsecured Creditors is not required to be convened. In view of the fact that the rights of the Unsecured Creditors are not affected, the meeting of Unsecured Creditor is hereby dispensed with. This Bench hereby directs the Applicant Company to issue notice to all its Unsecured Creditors by Courier/RPAD/Speed Post/Hand Delivery or through Email with a direction that they may submit their representations, if any, to the Tribunal and copy of such representations shall simultaneously be served upon the Applicant Company.
Application disposed off.
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2020 (3) TMI 1327
Characterisation of income - interest awarded u/s 28 of the Land Acquisition Act - computation of capital gain u/s 45 - Whether interest awarded u/s 28 of Land Acquisition Act, 1894 is nothing but an accretion to the value compensation and hence it is part and parcel of compensation? - HELD THAT:- From the perusal of the order of the CIT(A), it can be seen that the CIT(A) has not given a separate finding as to why the Assessing Officer is justified in making an addition. The Assessing Officer as well as the CIT(A) have not given any finding as to the fact that the assessee has not received interest u/s 28 of the Land Acquisition Act, 1894.
This issue has been decided by the Hon’ble Apex Court in case of Union of India Vs. Hari Singh [2017 (11) TMI 923 - SUPREME COURT]wherein it is held that on agricultural Land no tax is payable when the compensation/enhanced compensation is received by the assessee as their land were agricultural land. The compensation was received in respect of agricultural land belonging to the assessee which had been acquired by the state government. The CIT(A) has not taken cognizance of the decision of the Apex Court in case of Hari Singh (supra). The ratio of the said decision is applicable in the present case. Thus, the appeal of the assessee is allowed.
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