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Showing 141 to 160 of 1733 Records
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2019 (6) TMI 1595
Levy of penalty - personal involvement by the appellant in the alleged clandestine manufacture and removal of the goods or not - HELD THAT:- Undisputedly there has been manufacture and clearance of excisable goods clandestinely by M/s B.K. Industries of which Shri Radheshyam Sarda was the Director. In his statement recorded by the officers, Shri Sarda categorically admitted that the said manufacturing unit was indulged in clandestine manufacture and clearance of the finished goods during the relevant period and agreed to deposit the entire amount of duty not paid. Also, in his statement dated 25.11.2009, he has accepted that he looks after day to day affair of the factory including purchase, sale and production. Therefore, his plea that personal penalty cannot be imposed on him is without merit, accordingly, imposition of penalty under Rule 26 of Central Excise Rules, 2002 is justified.
In the interest of justice, penalty imposed is reduced to ₹ 2.00 lakhs - appeal allowed in part.
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2019 (6) TMI 1594
Revocation of Customs Broker license - delay in conducting the enquiry proceedings - goods grossly misdeclared in terms of value, quantity and description - HELD THAT:- There are no justifiable reason being put forth to hold that Shri Sanjay Mishra was not the employee of the appellant. In the examination done before the enquiry officer, Shri Sanjay Mishra has specifically deposed that he is G Card holder given to him by Customs after conducting CHA examination as a permanent employee of a Custom Broker. He is thus authorized to meet the client and customs authorities and for signing the documents for clearance of goods.
Commissioner has not rebutted the claims of the Custom Broker and Shri Sanjay Mishra to the effect that there was employer employee relationship between the two. Once the fact of Shri Sanjay Mishra being the employee of Custom Broker is accepted all other charges will fall.
Appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1593
CENVAT Credit - input services - repossession of vehicle provided by the various recovery agent to the Appellant against the output service of the Appellant i.e. lending of money - HELD THAT:- An identical issue covering the earlier period i.e. April, 2007 to March, 2012 and it was decided in favour of the Appellant by this Tribunal in M/S. BAJAJ FINANCE LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE [2017 (11) TMI 658 - CESTAT MUMBAI] by which this Tribunal has held that the Appellant are entitled for the Cenvat credit on the service of repossession of vehicle provided by the various recovery agent to the Appellant against the output service of the Appellant i.e. lending of money.
Since on an identical issue between the same parties, this Tribunal has taken a view to allow the appeal - credit allowed - appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1592
Allowability of loss on share transactions - determination of ‘date of transfer’ and holding period for the purpose of computing the period for capital gains - HELD THAT:- Circular issued by the CBDT vide Circular No. 704 dated 28.4.1995 wherein it was clarified that the share transactions carried on by the parties , if followed by delivery of shares and transfer deeds, then the same would have to be accepted. Though this circular was issued in the context of determination of ‘date of transfer’ and holding period for the purpose of computing the period for capital gains, the analody drawn thereon could be utilized to the facts of the instant case.
It is not in dispute that the assessee had traded in shares of Nirma Ltd in off-market but the same was subsequently followed by delivery of shares and transfer deeds. The sale of shares is made following First In First Out (FIFO) basis and it is pertinent to note herein that the opening balance of shares held by the assessee were never doubted by the revenue. No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. Hence the share transactions in respect of Nirma Ltd is to be considered as genuine and assessee had made profit in respect of this off-market transaction.
Assessee had also submitted the statement giving details of purchase and sale of shares of Visual Soft Ltd along with copies of bills and contract notes, copies of demat statement and copy of price list from the stock exchange . No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. All these documents conclusively prove that the transaction carried out by the assessee is genuine.
Assessee had also submitted the statement giving details of purchase and sale of shares of Elque Polyster Ltd along with copy of price list from the stock exchange. No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. All these documents conclusively prove that the transaction carried out by the assessee is genuine.
We find that the assessee had also submitted the statement giving details of purchase and sale of shares of Global Tele Ltd along with copies of bills and contract notes and copy of price list from the stock exchange. No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. All these documents conclusively prove that the transaction carried out by the assessee is genuine.
Assessee had also submitted the statement giving details of purchase and sale of shares of Penta Four Soft Ltd along with copies of bills and contract notes; copies of demat statement ; copy of trade file of NSEand copy of price list from the stock exchange (page 86 of paper book). No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. All these documents conclusively prove that the transaction carried out by the assessee is genuine.
Assessee had also submitted the statement giving details of purchase and sale of shares of Ramco Systems Ltd along with copies of bills and contract notes. No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. All these documents conclusively prove that the transaction carried out by the assessee is genuine.
We direct the ld AO to treat the net speculation loss as genuine loss and allow the same to be carried forward to subsequent years. Accordingly, the grounds raised by the assessee are allowed.
Chargeability of interest u/s 234D - HELD THAT:- No interest u/s 234D of the Act could be charged on the assessee in the peculiar facts and circumstances of the instant case before us. We find that the ld CITA had followed this tribunal order which had attained finality. Hence we do not find any infirmity in the said order of the ld CITA . Accordingly, the grounds raised by the revenue are dismissed.
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2019 (6) TMI 1591
Charging of interest under section 234A, 234B and 234C - HELD THAT:- The charging of interest is consequential and mandatory and the AO has no discretion in the matter. This proposition has been upheld by the Hon’ble Apex Court in the case of Anjum H. Ghaswala [2001 (10) TMI 4 - SUPREME COURT] and I, therefore, uphold the action of the AO in charging the assessee the aforesaid interest u/s 234A, 234B and 234C of the Act. The AO is, however, directed to re-compute the interest chargeable u/s 234A, 234B and 234C of the Act, if any, while giving effect of this order.
Assessment under section 153A - protective and substantive additions made by the AO in the orders of assessment was based on documents found and seized in the course of search - HELD THAT:- AO could not have taken cognizance of the seized documents and other material found and seized in the course of search conducted in the premises / case of Shri. Manoj Kumar Jain, while framing the order of assessment under section 143(3) of the Act in the case on hand. As a matter of fact, the ongoing assessment proceedings under section 143(3) of the Act would abate on receipt of these seized materials as per the second proviso to section 153C of the Act. We are of the view that in the event the AO wanted to take cognizance of the seized materials, he ought to have invoked the provisions section 153C of the Act after recording his satisfaction based on material sent by the AO of Shri. Manoj Kumar Jain.
As pre-condition laid down by the Legislature of recording of satisfaction for taking action under section 153C of the Act cannot be side-stepped / brushed aside and additions be made in proceedings pending under section 143(3) of the Act as the scope of assessments framed under sections 143(3) and 153C of the Act are quite different. In that view of the matter, we hold that the protective additions made by the AO in the impugned order of assessment for Assessment Year 2008-09 dated 31.12.2009, are contrary to the provisions of the Act and are therefore to be deleted. Similarly, the addition sustained by the CIT(A) of ₹ 6,45,000/- on substantive basis as profit from trading in iron-ore based on the material found and seized in the search conducted in the case of Shri. Manoj Kumar Jain is also hereby deleted.
Disallowance of Depreciation on Windmills - Disallowance of the same was not forming part of the cost of the Windmill; but was actually payment made for taking the land on lease - HELD THAT:- 2 Respectfully following the decision of the Co-ordinate Bench of this Tribunal in the case of M/s. V. S. Lad & Sons [2014 (6) TMI 922 - ITAT BANGALORE] we allow the lease rent paid for acquiring the leasehold rights over the land as rent paid in advance and direct that the same is to be allowed as revenue expenditure as per the provisions of section 37(1) of the Act. Consequently, ground No.2 of assessee’s appeal is partly allowed.
Disallowance of claims of deduction under section 10B - whether the assessee is entitled to deduction under section 10B of the Act on the deemed exports? - HELD THAT:- This issue is covered by the decision of the Hon’ble Karnataka High Court in the case of Tata Elxsi Ltd [2015 (10) TMI 634 - KARNATAKA HIGH COURT] - Thus we hold that the assessee is entitled for deduction under section 10B of the Act on deemed exports
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2019 (6) TMI 1590
Assessment u/s 153A - Bogus purchases - HELD THAT:- In the absence of any incriminating materials found during the course of search and seizure operations, no addition can be made u/s.153A of the Act. Reliance can be placed on the decision of Hon’ble Delhi High Court in the case of PCIT vs. Meeta Gutgutia [2017 (5) TMI 1224 - DELHI HIGH COURT] affirmed by the Hon’ble Supreme Court by dismissal of the Special Leave petition in the case of PCIT vs. Meeta Gutputia, [2018 (7) TMI 569 - SC ORDER]. There is a long line of authorities in support of the proposition of law that in the absence of incriminating material found as a result of search no addition can be made in the assessment made pursuant to notice u/s.153A of the Act.
No purchases can be disallowed by alleging that purchases made are bogus. CIT(Appeals) also considered the statement given by the director of M/s. Bhanwarlal M.Jain Group and come to conclusion that the statement does not reveal that the purchases are bogus, it is only stated that the actual supplies are made by some other person on whose behalf the invoices are issued by this group. The statement only reinforces the contention of the respondent assessee that actual purchases are made.
CIT(Appeals) also considered the prevailing business practices in the same line of business and come to conclusion that the actual suppliers are made by one party and the invoices are issued by another party, which does not mean the purchases are bogus. Thus, the order of the ld. CIT(A) is based on due appreciation of materials on record and the law governing the issue of the bogus purchases. Therefore we do not find any reason to interfere with the order of the ld. CIT(A) on the issue of bogus purchases. Thus, viewed from any angle the impugned assessment order cannot be sustained in the eyes of law. The order of the ld. CIT(Appeals) is based on the due appreciation of material on record and in consonance with the settled principle of law and therefore we do not find any reason to interfere with the order of the ld. CIT(A). Accordingly, the appeal filed by the Revenue is dismissed.
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2019 (6) TMI 1589
Dishonor of Cheque - It is submitted by learned counsel for the applicant that the present matter relates to dishonour of cheque and the said matter can be well considered by Mediation Centre of this Court - HELD THAT:- It is directed that applicant shall deposit a sum of ₹ 15,000/- within two weeks from today with the Mediation Centre of which 50% shall be paid to the opposite party no. 2 for appearance before the Mediation Centre - The matter is remitted to the Mediation Centre with the direction that same may be decided after giving notices to both the parties.
It is directed that Mediation Centre shall decide the matter expeditiously preferably within a period of three months. Thereafter the case shall be listed before appropriate Bench in the second week of September, 2019.
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2019 (6) TMI 1588
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The Corporate Debtor failed to create security within the stipulated period of 120 days, i.e., by 13.10.2018. The Petitioner Bank issued a letter dated 14.10.2018 demanding repayment of the credit facilities as the Corporate Debtor failed to create security in favour of the Petitioner within the stipulated period. The letter dated 14.10.2018 issued to the Corporate Debtor and the personal guarantors of the Agreement dated 11.06.2018 is annexed to the Petition. The Petitioner issued a letter dated 16.10.2018 to the Corporate Debtor and its guarantors seeking payment of the instalments of principal and interest amounts. The Corporate Debtor has not tendered any response and has taken least efforts to make the necessary payments to the Financial Creditor. The Petitioner on 29.10.2018 issued letter recalling the entire loan to the Corporate Debtor and subsequently on 01.11.2018 invoked guarantees to the Agreement dated 11.06.2018 to take action against the Guarantors. Copies of letter dated 29.10.2018 and 01.11.2018 are annexed to the Petition.
The Sanction Letter dated 05.06.2018, the Master Facility Agreement dated 11.06.2018, and the CRILC Report establish that the Financial Creditor issued a loan to the Corporate Debtor and the same is in default. Moreover, the Corporate Debtor has admitted its liability in a letter dated 07.06.2018, issued by the Corporate Debtor to the State Bank of India.
The Corporate Debtor has failed to maintain the financial discipline to repay the loan amounts and has not taken any efforts to make the necessary payments - Application under sub-section (2) of Section 7 of I&B Code, 2016 is complete - The existing financial debt of more than rupees one lakh against the corporate debtor and its default is also proved.
Petition admitted - moratorium declared.
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2019 (6) TMI 1587
Stay petition - Interim stay seeked - HELD THAT:- There is no dispute or disagreement before this Court today that the conditions imposed has since been complied with or in other words, a sum of ₹ 1 ½ Crores has since been paid by the writ petitioner before 07.06.2019. Therefore, the interim stay granted pending appeal on the file of the second respondent is now operating.
As revenue submits that it may be desirable to have the appeal heard out and disposed of expeditiously and requested that there be a direction in this regard.
Writ petitioner, on instructions, submits that the writ petitioner assessee would cooperate for early disposal of the appeal now pending on the file of the second respondent.
Interim order of stay qua order of original authority/demand, which is now operating owing to compliance of the writ petitioner with the conditions imposed made vide earlier proceedings in instant writ petition will continue to operate till the disposal of the aforesaid appeal before the second respondent.
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2019 (6) TMI 1586
Jurisdiction - power of Joint Commissioner, a lower Authority to order any audit of the particular business dealer - no authorisation or delegation by the Commissioner possible in terms of Section 64(4) of TNVAT Act - HELD THAT:- The provisions of sub-Section (4) of Section 64 empowers the Head of the Department viz., the Commissioner to order for an audit of the business of any registered dealer by an officer not below the rank of the Deputy Commercial Taxes Officer, who is much lower authority in the hierarchy.
It is clear that the said sub-section (4) does not empower the Commissioner to delegate the power to pass order to any lower authority. Therefore, the application of mind by the Commissioner himself about the nature of the default by the particular Assessee concerned and therefore there is a need to audit the books of accounts and other revenue records of the business of that Assessee has to be recorded by the Commissioner himself. The words "any registered dealer" in Sub-Section (4) indicates a singular dealer and not a group of Dealers. Therefore, such orders under Section 64(4) cannot be passed for a group of registered dealer in one go. The recording the opinion about the default of the assessee cannot be construed to be an administrative function or administrative order passed by the Commissioner. Therefore, such an order under Section 64(4) of the Act can be nothing but a quasi-judicial order, entailing civil consequences for the Assessee or Dealer concerned. In view of this, the orders to be passed under Section 64(4) of the Act have to meet the principles of natural justice viz., the compliance of the principles of audit alteram partem, giving of a notice and opportunity of hearing to the assessee concerned. The Assessee before the Commissioner can always contend that no such default as stipulated in Section 64(4) clauses (a) to (e) is made out against him and if he places such a case before the learned Commissioner, it is incumbent upon of the Commissioner to apply mind and pass appropriate speaking and reasoned order in this regard. Therefore, passing of an omnibus or general order to audit of business of dealers like done in the present case, does not fit in the scheme of Section 64(4) of the Act at all.
The power to delegate further is not provided under Section 64(4) of the Act. Therefore, the manner in which the impugned order dated 16.05.2014, has been passed by the learned Commissioner laying down certain limits or criterias quoted above leaving it free for the Joint Commissioner to authorise officers below to undertake such audit is wholly untenable and unsustainable order - The audit of the books and accounts of an assessee is required not only under the provisions of Section 64 (4) of the Act but such provisions, which may be applicable to the assessee concerned, may be under the other relevant statutes also like the provisions of the Companies Act, if an assessee is a limited Company, under the provisions of the Income Tax Act, vide Section 142(2A) thereof as well.
The order of the learned Commissioner under Section 64(4) of the Act is a quasi-judicial order, requiring a prior notice of hearing to the assessee and passing of a reasoned speaking order in individual cases of registered dealers for conducting audit by the specified Authority as directed by the Commissioner. The order dated 16.05.2014 does not meet these requirements of law at all.
The Hon'ble Supreme Court in a large number of cases has even held that unless the provisions of the natural justice are specifically excluded by the statutory provisions, they can be read into such provisions in the interest of justice. The provisions in Section 64(4) of the Act do not specify anything about the notice for hearing to the registered dealers but the mere absence of such a provision does not prevent this Court from directing such a requirement to be complied with by the Department viz., Commissioner before directing such audit under Section 64(4) of the Act - A reference for this proposition of law can be made to INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA VERSUS LK. RATNA AND OTHERS [1986 (10) TMI 37 - SUPREME COURT].
Appeal dismissed - decided against Revenue.
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2019 (6) TMI 1585
Refund of unutilized input tax credit accumulated on account of inverted duty structure and debited in its electronic credit ledger equivalently - whether the Computation of refund in terms of Rule 89(5) of the Rules has to be done separately for each Head viz IGST, CGST and SGST or as a consolidated ITC and whether the amount claimed as refund under one head can be debited from another Head in light of the C.B.I. & C. Circular No. 59/33/2018-GST, dated 4-9-2018? - HELD THAT:- The benefit of the Circular No. 59/33/2018-GST, dated 4-9-2018 cannot be extended to the present appeals inasmuch as the procedure prescribed in the circular is applicable only to the refund applications filed after the issuance of the said circular - Furthermore, the adjudicating authority has correctly calculated the tax amount Head-wise since the payment of the respective sanctioned final amount has to be made by the respective Central and State Tax authorities independently in pursuance to the procedure laid down in Circular No. 24/24/2017-GST, dated 21-12-2017. The refund claim has been appropriately computed and sanctioned by the adjudicating authority in accordance with the provisions of law.
Appeal dismissed.
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2019 (6) TMI 1584
Classification of goods - rate of GST - Filter Elements & Air Filter Assembly as parts for Diesel Electric Locomotives for Indian Railways - classified under Tariff Heading - 8607 in GST regime or not? - HELD THAT:- The Indian Railways had placed Purchase Orders for the manufacturing of “Low mean pore size Primary & Secondary Filter Elements”, “Air Filter 975” & “MR Filter Element” by the party which they subsequently supplied to Indian Railways under the cover of invoices - After going through the Quality Assurance Plans (QAP) for low Mean Pore Size Primary & Secondary Fuel Oil Filter Elements for Diesel Electric Locomotives’ and for ‘Filter Air Dryer & MR for ALCO (American Locomotive Company) Locomotives & EMD (Electro-motive diesel) Locomotives’ as submitted by the party along with their said Advance Ruling Application, it is noticed that the said ‘Quality Assurance Plans’ were duly approved by the competent Railway Authorities. It, therefore, appears that the party had manufactured the said goods as per the specifications of Railways, which they subsequently supplied to Railways.
The term “parts” or “accessories” mentioned in Chapter 86 to 88 is applicable to those “parts” or “accessories” which are solely or principally being used with the articles of those chapters. Since, the aforesaid items manufactured by the party are being principally used for railway locomotives as per aforesaid ‘Quality Assurance Plans’ duly approved by the competent Railway Authority, the same appears to be appropriately covered under Customs Tariff Heading No. 8607 as ‘Parts of railway locomotives’ - It is also pertinent to mention that in pre-GST regime, the party in their ER-1 return for the month of March, 2017, as provided by them, had mentioned the clearances of goods as ‘Parts of Railway or Tramway or Rolling Stock’ under CSH No. 8607 99 20.
Applicability of tax rule under the GST Tariff/Act - HELD THAT:- On the basis of the classification of the said product, it will be leviable to appropriate rate of Goods and Services Tax under the Heading No. 8607 prescribed under Notification No. 1/2017-Central Tax (Rate), dated 28-6-2017 issued under the Central Goods and Services Tax Act, 2017.
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2019 (6) TMI 1583
Levy of Excise Duty - additional manufactured Castings - Excise Duty upon the cost of free Moulds supplied by BEML stood paid already for the prescribed number of castings manufactured by the assessee and supplied back to the BEML - HELD THAT:- The order passed by the Learned Tribunal is a non-speaking order and except relying on the Larger Bench decision, the Tribunal failed to appreciate the contention in a proper perspective and the finding as to whether any additional Excise Duty is payable by the assessee or not is based on factual aspects, the Tribunal ought to have been undertaken this exercise and after considering the objections of the assessee in this regard and giving reasons for arriving such a conclusion, ought to have demanded the additional Excise Duty, if any.
Therefore, without expressing any opinion on the merits of the case, we are inclined to set aside the order passed by the Tribunal and remand the matter to the Tribunal for deciding the appeal of the assessee again, in accordance with law preferably, within a period of six months from today - Appeal allowed by way of remand.
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2019 (6) TMI 1582
Exemption u/s 11 - exemption u/s 12A - denial of exemption as activities of the assessee involve rendering of services in relation to carrying on of commerce or business and hence, proviso to Section 2(15) is clearly application in the case of the assessee - HELD THAT:- Hon’ble Delhi High Court in assessee’s own case vide judgment dated [2011 (10) TMI 173 - DELHI HIGH COURT] has held that there is no case made out by the Revenue that the surplus are being appropriated by any individual or by a group of individuals and hence restored the exemption granted u/s 12A of the Act to the assessee. There is a clear finding by the CIT(A) that the assessee has not generated any surplus for anyone - Members or Non-Members.
there has never been any dispute as to the continuation of the same set of facts in all these years, right from the AY 1990-91 at different level either it is at the first appellate authority stage or the Tribunal or the Hon’ble High Court, the consistent view has been that the assessee is a charitable institution and its income has to be computed u/s 11, 12 & 13 of the Act. Unless and until, any change in the fundamental facts is brought on the record, we find it difficult to take a different view for this assessment year. Our this view is well fortified by the decisions of the Hon’ble Jurisdictional High Court in the assessee’s own case for the earlier assessment year so also the consistent view taken by the Tribunal for the AYs 2008-09 and 2009-10. - Decided in favour of assessee.
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2019 (6) TMI 1581
Jurisdiction - petition and petitioners under different state - non-compliance with Section 202 of Cr.P.C. - allegation is that Magistrate was required to postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding in the matter, which was not done in the present case - HELD THAT:- Dealing with Section 202 of Cr.P.C Hon'ble Supreme Court of India in ABHIJIT PAWAR VS. HEMANT MADHUKAR NIMBALKAR AND ANOTHER [2016 (12) TMI 1774 - SUPREME COURT OF INDIA] has held that Admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the process.
Matter is remitted to the learned Magistrate to proceed in the matter after compliance of the requirements of Section 202 of Cr.P.C. - petition allowed by way of remand.
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2019 (6) TMI 1580
Input Tax Credit - pre-engineered structures which is movable in nature and accounted as “Plant and machinery” and not capitalized as an immovable property - Section 16 of CGST Act - HELD THAT:- Section 16 (a) of the Act provides for eligibility of Input Tax Credit. It reads as “in possession of a tax invoice or debit note issued by a supplier registered under this Act, or such other tax paying documents as may be prescribed” - Section 17 of the GST Act deals with Apportionment of credit and blocked credits. Section 17 (5) (d) reads as “goods or services or both received by a taxable person for construction of an immovable property (other than plant or machinery) on his own account including when such goods or services or both are used in the course or furtherance of business”.
As per the definition of goods some movable property is excluded from the category of goods whereas at the same time, some immovable properties are treated as goods. But the terms movable and immovable property have not been defined under the GST Act. In laymen terms, any goods that can moved is a movable property and which cannot be moved is immovable property - As per the definition of immovable property contained in the General Clauses Act and the Transfer of Property Act, it is clear that things attached to the earth or permanently fastened to anything attached to the earth is immovable property. Anything imbedded in the earth or attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached, qualifies to be attached to the earth.
Further, when any object is said to be embedded in earth, it does not mean that a part of it is to be inserted/ put deep beneath the earth by digging the earth for several meters. For laying any foundation especially in case of area of considerable dimension as in case of a warehouse, the top soil has to be removed, surface has to be leveled and some part of foundation stone always rests with in the earth. So this contention of the applicant that the support base of the warehouse made of PES neither attached to nor imbedded in the earth is rejected.
Non-permanent nature of the PES structure - HELD THAT:- It has already been discussed that the degree and nature of annexation is vital to the decision whether a property is a movable property or an immovable property. In the case of applicant, the warehouses are rented out to industrial consumers and manufacturers. These warehouses cover considerably large area and caters to the need of business which in terms requires permanence and stability. So, it cannot be said that the warehouses constructed/ erected by way of fixing pre-engineered structures is non-permanent in nature.
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2019 (6) TMI 1579
Appointment of technical members in the Bench of the National Company Law Tribunal (NCLT) at Ahmedabad - grievance of the petitioners was that their matter was being heard by a Bench in which there was no technical member - HELD THAT:- Ms. Meenakshi Arora, learned senior counsel has raised the issue that despite judgment passed in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT], it is not the Law Ministry but the Ministry of Corporate Affairs which is ordering the appointment of the members of the NCLT.
We are not going into that question in this case and leave it open for decision in an appropriate case - Application disposed off.
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2019 (6) TMI 1578
Delay in E- filing Appeal - Appeal filed manually - show cause notice has been issued to the assessee on 30.11.2018 asking why the appeal should not be dismissed as it was not filed under e-filing - HELD THAT:- Assessee had replied and the reply was rejected and the manual appeal was filed by the assessee is treated as void, ab initio and the delay in filing of the appeal in respect of e-filing was not condoned and the appeal was dismissed in limine.
Under similar circumstances, in the case of Shri G.P.Saravanan [2019 (5) TMI 1847 - ITAT CHENNAI] it was held that when the assessee has filed an appeal manually and also e-filing for such appeal would related back to the original date of filing of appeal manually and consequently, it cannot be held that there was a delay in filing of the appeal.
Thus as assessee has filed its appeal manually on 25.04.2016 and has e-filed the same on 12.01.2019, the said e-filed appeal would in fact relate back to the date of filing of the appeal manually on 25.04.2016. This being so, we are of the view that the order of the Ld.CIT(A) is unsustainable and consequently, set aside the same and the issues in this appeal are restored to the file of the Ld.CIT(A) for adjudication on merits.
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2019 (6) TMI 1577
TP Adjustment - TPO proceeded to amend the list of comparables and finally came with the list whose operating margin had a mean of 20.59% - assessee in this regard submitted that it has a margin of 19.80% on its exports - TPO held that assessee's contention to consider the export segment is rejected and entity level margins of the assessee was considered to find the arm's-length price of international transaction - HELD THAT:- The only objection was that segmental accounts were not audited and that proper allocation keys were not submitted. However this has been duly countered by the learned counsel of the assessee by submitting that allocating the common expenses to the export segment by whatever key the result would compare favourably with the arithmetic mean of the operating margin of the comparable's selected by the transfer pricing officer.
There is a marked distinction between supporting order of the AO/TPO by the Departmental Representative on one hand and finding flaws in the order of the AO/TPO in an attempt to show that the AO/TPO failed to do what was required to be done by him. In our considered opinion if the learned Departmental Representative is allowed to fill in the gaps left by the AO/TPO it would amount to conferring the jurisdiction of the CIT u/s 263 to the Departmental Representative, which is not permitted by the statute. Let us take another situation. Suppose a particular deduction is permissible on the cumulative satisfaction of three conditions. The AO examines the case and finds the very first condition as tacking. Without examining the fulfillment or otherwise of the other two conditions, he rejects the claim, in that case if such first requirement is subsequently found to be fulfilled in the appellate proceedings, the Departmental Representative can very well point out to the tribunal that the other two conditions were a/so not fulfilled.
As held by the authorities below that proper allocation keys of common expenses between export and other segment have not been provided. In this connection assessee has submitted that if the common expenses are allocated by applying any of the keys the operating margin of the export segment would compare favourably with the operating margin of the comparables. This proposition has not at all been rebutted by the authorities below. The learned departmental representative also could not dispute the above proposition. However learned departmental representative has tried to make out a new case by making a submission that the matter may be set aside to TP.
Authorities below objected to comparability of assessee's export segment with the comparable selected by the TPO only on account of their observations regarding absence of proper allocation key. It was never their case that there is lack of comparability. Learned departmental representative is well within his rights on supporting the order's of the authorities below. However he cannot argue that the transfer pricing officers action is incomplete and therefore the issue needs to be set aside so that the transfer pricing officer can be given a second innings. Such a view was rejected by the ITAT in the case of Maersk Global Services Centre (I) P. Ltd. [2014 (8) TMI 1099 - BOMBAY HIGH COURT] above, which was duly upheld by the honourable jurisdictional High Court.
We find cogency in assessee's submission that the operating margin of the export segment of the assessee can be compared with the profit margin of the comparables selected by the transfer pricing officer by any allocation key selected. The TPO is directed to examine the veracity of this submission and delete the adjustment on account of arm's length price, if the result compares favourably.
We find cogency in assessee's submission that the operating margin of the export segment of the assessee can be compared with the profit margin of the comparables selected by the transfer pricing officer by any allocation key selected. The TPO is directed to examine the veracity of this submission and delete the adjustment on account of arm's length price, if the result compares favourably.
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2019 (6) TMI 1576
Benefit of concessional rate of the Central Sales Tax - Issuance of C-form - natural gas purchased by the petitioner from the supplier/dealer in the State of Gujarat used/to be used in manufacturing of Float Glass - HELD THAT:- At this stage, we dispose of this petition by directing the Commissioner of Sales Tax (respondent no.2) to dispose of the petitioner's representation after granting a personal hearing to the respondent within a period of four weeks from the date this order is uploaded.
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9911796707
