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Showing 141 to 160 of 1172 Records

• 2021 (6) TMI 1032 - ITAT DELHI
  

  Revision u/s 263 - Valuation of fair market value of the unquoted per equity share - HELD THAT:- AO at the time of assessment order / proceedings has specifically raised queries relating to the fair market value of the unquoted per equity share and the related document were present before the AO while passing the final assessment order. After perusal of the document which were presented before the AO, we have noticed that the reasoning given by the Pr. CIT that the total share of 39,510 at ₹ 220/- per share against the face value of ₹ 10/- each and the received share premium to the tune of ₹ 82,97,100/-, has totally ignored the explanation given by the Assessee before the Assessing Officer as well as before the Pr. CIT. The assessee has properly demonstrated through bank statement, the valuation under Rule 11UA along with audit report and audit trading account as relates to the FMV of the share premium.

  There is no prejudice to the revenue and Section 263 of the Act cannot be invoked in the present case. After going through the evidences and submissions the Assessing Officer passed the Assessment Order. While invoking Section 263 (1) of the Income Tax Act, 1961, the Pr. CIT has not made out the case that the Assessment Order is passed without making inquiries or verification which should have been made. There was no material brought by the Pr. CIT stating therein that the Assessment Order is passed allowing any relief without inquiring into the claim of the assessee. - Decided in favour of assessee.

  In the present case the Assessing Officer has made all the inquiries and after verifying the documents/ material on record passed a reasoned Assessment Order. Therefore, the Commissioner does not have any locus standi to make further inquiry. - Decided in favour of assessee.

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• 2021 (6) TMI 1031 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
  

  Scheme of Amalgamation - seeking dispensation of the meeting of the Equity Shareholders, Secured Creditors and Unsecured Creditors in respect of the scheme of Amalgamation - Sections 230 to 232 and other relevant provisions of the Companies Act, 2013 - HELD THAT:- The material on record establishes that the ‘Transferee Company’ is a Wholly Owned Subsidiary of the ‘Transferor Company’ and there is no issuance of any new shares and therefore there is no reorganization of share capital and consequently no arrangement wherein Shareholders have to compromise with Creditors of the ‘Transferor Company’. The documentary evidence substantiates that the net worth of the ‘Transferee Company’ is definitely positive - there are force in the contention of the Learned Counsel appearing for the Appellants that there are no Creditors in the subsidiary Companies and that the ‘Transferee Company’ is the only Shareholder of the ‘Transferor Company’.

  This Tribunal has placed reliance in IN RE : DLF PHASE – IV COMMERCIAL DEVELOPERS LIMITED, DLF REAL ESTATE BUILDERS LIMITED, DLF RESIDENTIAL BUILDERS LIMITED, DLF UTILITIES LIMITED AND DLF LIMITED [2019 (8) TMI 829 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI] and observed that the scheme would not prejudicially affect the Creditors or Shareholders of the Appellant Company when an Application is filed by the ‘Transferor Company’ or ‘Transferee Company’, a separate Application is not necessary and dispensed with the meeting of the equity Shareholders and Creditors of the Appellant Company. At the cost of repetition, keeping in view that the financial position of the ‘Transferee Company’ is highly positive, the merger does not involve any compromise/arrangement with any Creditor of the Company, that there would be a positive net worth and Creditors would not be compromised, the Tribunal ought to have exercised the discretion in dispensing with the requirement of convening the meeting which would facilitate ease of doing business and save time and resources.

  When the ‘Transferor and Transferee Company’ involve a parent Company and a Wholly Owned Subsidiary the meeting of Equity Shareholders, Secured Creditors and Unsecured Creditors can be dispensed with as the facts of this case substantiate that the rights of the Equity Shareholders of the ‘Transferee Company’ are not being affected - the direction in respect of the Transferee Company issued by the NCLT, to convene the meetings of the Equity Shareholders, Secured Creditors and Unsecured Creditors on 22.04.2021 is set aside - application allowed.

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• 2021 (6) TMI 1030 - ITAT DELHI
  

  Assessment u/s 153A - Disallowance of section 80IAB - whether there was any incriminating material found during the course of the search qua the part disallowance of deduction under section 80 IAB? - HELD THAT:- There is no question of considering the same as part of the incriminating material found during the course of the search. DR has further referred to the remand report of the AO, wherein it is mentioned that disallowance in question was based on documents and statement recorded both during and post search proceeding. DR was given opportunity to produce any such search material related to part disallowance u/s 80IAB, which is in the nature of the incriminating, but he failed to produce any such incriminating material.

  CIT(A) has already rejected the contention of the AO in remand proceeding which were based on the appraisal report. Merely, if it is mentioned in the appraisal report that certain documents are found during the course of the search, which are incriminating in nature, it cannot be presumed that such material was found. The onus is on the Revenue to substantiate their claim with the help of producing relevant incriminating material either before the Ld. CIT(A) or before the Tribunal. The Revenue cannot take shelter of the appraisal report, which is a confidential document between the Investigating Wing and the Assessing Officer and not a documentary evidence to be relied upon by the Appellate Authority.

  The second condition of the ratio of the decision in the case of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] is not satisfied in the facts of the instant case. The finding of the Ld. CIT(A) on the issue in dispute is well reasoned and accordingly, we uphold the same. The grounds raised by the Revenue are accordingly dismissed.

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• 2021 (6) TMI 1029 - ITAT DELHI
  

  Bogus LTCG - Addition u/s 68 - No satisfactory explanation of identifying the scrip for investment - HELD THAT:- Where the purchase has not been done through open platform of recognized stock exchange and the SEBI has also noticed abnormal activities of artificial price rigging in the shares of M/s Cressand Solutions Ltd., the assessee has failed in discharging his onus of substantiating the transaction of long-term capital gain as a real transaction. The order of the Learned CIT(A) on the issue in dispute is well reasoned and we do not find any infirmity the same. Accordingly, we uphold the same. The grounds raised by the assessee are dismissed.

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• 2021 (6) TMI 1028 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
  

  Challenge to Approval of Resolution Plan - HELD THAT:- Without rights claimed by Appellant being adjudicated before Adjudicating Authority, Appellant cannot maintain challenge to approval of Resolution Plan by way of Appeal. No comments are made on the merits of rival claims. Suffice it to state that the Appellant – third party is trying to maintain this appeal challenging the Resolution Plan approved, without getting decided I.A. No. 929 of 2021, one way or other.

  The appeal is disposed of as premature with liberty to the Appellant to raise admissible issues.

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• 2021 (6) TMI 1027 - ITAT MUMBAI
  

  Addition u/s 68 - unexplained cash credit - Can the amount of share money be regarded as undisclosed income under section 68 ? - CIT-A deleted the addition - assessee has issued share warrants to M/s BDPL during the year - HELD THAT:- The transactions were duly reflected in the financial statements of the investor entity. The transactions have taken place through banking channels. After going through all these facts and evidences, we find that the onus casted upon assessee in terms of requirement of Sec.68 to prove the identity of the investor, their respective creditworthiness and the genuineness of the transactions, was duly discharged by the assessee. The onus, had thus shifted on Ld. AO, to disprove the assessee’s documents and to bring on record any material to prove that assessee’s own money flew back to it in the shape of share warrant application money. However, noting of that sort is available in the assessment order.

  The documents, which in the opinion of Ld. AO could not be furnished, include correspondence with M/s BDPL prior to issue of warrants, details of introducers of directors of M/s BDPL, details of services taken from investment banker, proof of receipt of share warrant application form, proof of dispatch of notice of AGM along with postal records, proof of dispatch of share warrants and shares. However, all these documents, as rightly noted by Ld. CIT(A), were not of much relevance since the transactions were duly confirmed by the investor entity as supported by other vital documentary evidences. So far as the applicability of the provisions of Sec.56(2)(viia) is concerned, the same do not apply to the assessee since the assessee is not the recipient of any property rather it is only an issuer of share warrants only and therefore, these provisions do not apply to the assessee.

  As settled position of law that to avoid the rigors of Section 68, the assessee must prove the identity, creditworthiness of the lenders / investors to advance such monies and genuineness of the transactions. Once these three ingredients are shown to be fulfilled by the assessee, the primary onus casted upon him, in this regard, could be said to have been discharged and accordingly, the onus would shift upon revenue to dislodge the assessee’s claim by bringing on record material evidences and unless this onus is discharged by the revenue, no addition could be sustained u/s 68.

  The assessee had discharged the onus of proving the fulfillment of primary requirements of Section 68 and the onus was on Ld. AO to disprove the same. In the absence of any such facts on record, the impugned additions could not be sustained in the eyes of law and therefore, Ld. CIT(A) has rightly deleted the same. - Decided against revenue.

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• 2021 (6) TMI 1026 - CESTAT BANGALORE
  

  Classification of goods - ayurvedic medicaments - classified under Chapter 30 of the Central Excise Tariff Act 1985 or as cosmetics under Chapter 33 of the Tariff Act? - amendments made in the provisions of the Tariff Act w.e.f. 28.02.2005 - Effect on change in the classification of the products in dispute - discharge of burden to prove that the products are classifiable under Chapter 33 of the Tariff Act - applicability of Clause 3(c) of the General Rules.

  Whether the amendments made in the provisions of the Tariff Act w.e.f. 28.02.2005 have effected any change in the classification of the products in dispute as claimed by the department? - HELD THAT:- A perusal of Chapter Note 1(d) of Chapter 30 prior to 28.02.2005 shows that the said Chapter would not cover preparations of Chapter 33 even if they have therapeutic or prophylactic properties. Even after amendment, Chapter Note 1(d) shows that Chapter 30 would not cover preparations of Headings 3303 to 3307 even if they have therapeutic or prophylactic properties. Thus, even before the amendment or after the amendment Chapter 30 would not cover preparation of Chapter 33 or preparation of Headings 3303 to 3307 of Chapter 33. It has, therefore, to be first established that the preparations fall in Chapter 33 or Headings 3303 to 3307 of Chapter 33. The Heading of Chapter 33 both before the amendment and after the amendment is “essential oils and resinoids oils; perfumery, cosmetic or toilet preparations.” The Headings 3303 to 3307 or 33.03 to 33.07 of Chapter 33 deal with cosmetic products. It would, therefore, have to be first established by the department that the products of the appellant fall under Chapter 33 as cosmetics. The requirement prior to 28.02.2005 was that the products should be suitable for use as goods of these Headings and put up in “packings with labels, literature or other indications that they are for use as cosmetics” - the requirement of a product to be suitable for use as cosmetics or toilets preparation continues. Much emphasis has been placed by the Learned Authorised Representative of the Department that for a product to be cosmetics the requirement that the packing should have a label mentioning that the product is for use as cosmetics or toilet preparation is no longer the requirement after the amendment. This may be so but the department has still to prove that the product is either cosmetic or toilet preparation.

  Whether the department has discharged its burden to prove that the products are classifiable under Chapter 33 of the Tariff Act? - HELD THAT:- It is seen that the Adjudicating Authority had noted that the products of the appellant contained ingredients which were ayurvedic in as much as they were mentioned in ayurvedic texts. The Department, however, failed to establish conclusively that the products manufactured by the appellant were cosmetics and only an inference that the products were cosmetics has been drawn because of the amendments made on 28.02.2005.

  Whether the products of the appellant are classifiable as medicament under Chapter 30 or as cosmetics under Chapter 33 of the Tariff Act? - HELD THAT:- Its need to be noted that the Commissioner while adjudicating on the seventh show cause notice examined in detail whether the products manufactured and cleared by the appellant were medicaments. The Commissioner after noticing that medicaments were substances having therapeutic or prophylactic uses, held that the preparations of the products manufactured and cleared by the appellant meet the requirements of medicaments prescribed under chapter 30 of the Tariff Act - The Commissioner thereafter examined whether the products were used for therapeutic/prophylactic purposes or beauty enhancement and on examination of the documents and submissions advanced on behalf of the appellant concluded that the products manufactured and cleared by the appellant were not meant for daily use or as a substitute for regular cosmetic products. The contention on behalf of the appellant that they were meant for therapeutic/prophylactic purposes was, therefore, accepted.

  The aforesaid findings of the Commissioner are based on appreciation of the legal and factual position emerging from examination of the products manufactured and cleared by the appellant. The Commissioner also observed that the products were neither meant for daily use nor they were cosmetics and were ayurvedic medicines classifiable under Chapter 30 of the Tariff Act.

  Whether Clause 3(c) of the General Rules can be applied in this case as held by the Adjudicating Authority? - HELD THAT:- Clause 3 (c) of the General Rules would apply only when the goods cannot be classified by the reference to (a) or (b). So far as appellant is concerned there is no doubt that the products would be classifiable under (b). Thus, clause (c) of the General Rules would have no application in the facts and circumstances of the present case - there is no manner of doubt that the products manufactured and cleared by the appellant are not cosmetics under Chapter 33 or 34 of the Tariff Act and are medicaments falling under Chapter 30 of the Tariff Act.

  Appeal allowed - decided in favor of appellant.

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• 2021 (6) TMI 1025 - ITAT PUNE
  

  Approval for exemption u/s.80G - applicant is registered under section 12AA - HELD THAT:- In order to grant exemption u/s.80G of the Act, it is very essential for the Ld. CIT(Exemption) to satisfy himself as per Section 80G(5) r.w.r.11AA of the Income Tax Rules, 1962. That the genuineness of the charitable activities undertaken by the assessee trust/institution should has to be ascertained. The assessee in this case was unable to furnish credible evidences specifically the bills/vouchers in respect of the expenditure claimed with regard to activities performed as per Object Clause of the assessee trust/institution.

  We are of the considered view, one more opportunity should be granted to the assessee for the very fact that Income Tax Legislations are welfare legislation and not penal legislation and therefore, adjudication on merits before the Ld. CIT(Exemption) is required. DR did not raise any objection. We set aside the order of the CIT(Exemption) and remand the matter back to his file to re-adjudicate the issue as per law and at the same time, we direct the assessee/ applicant to file necessary evidences/documents before the Ld. CIT(Exemption) as would be called for so that the requirements of Section 80G(5) r.w.r.11AA of the Rules would be satisfied. Appeal of the assessee is allowed for statistical purposes.

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• 2021 (6) TMI 1024 - ITAT BANGALORE
  

  Disallowance of interest expenses - assessee did not collect any interest from the advances made - addition of interest on the interest free advances computed @ 14.5%, being the rate charged by SBI - HELD THAT:- Admittedly, the own funds available with the assessee as at the beginning and end of the year worth ₹ 367.92 crores and ₹ 416.53 crores respectively. The interest free advances given by the assessee is ₹ 87.30 crores as on 31.3.2013. It has been held by Hon'ble Bombay High Court in Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] that where the interest free funds far exceed the value of investments, it should be considered that investments have been made out of interest free funds. Accordingly, the interest disallowance is not called for in the present case.. Even though the A.O. has observed that the Ld. A.R. has accepted for the addition of interest expenditure, the said observation is being disputed now before us. In any case, the decision rendered by Hon'ble Bombay High Court supports the case of the assessee. - Decided in favour of assessee.

  Ad hoc disallowance of other expenses - AO made ad hoc disallowance of 25% of the aggregate amount of expenses - HELD THAT:- Admittedly, the assessee did not furnish evidences in support of the claim of various expenses before the A.O. As pointed out by Ld. D.R., we also notice that the additional evidences furnished by the assessee are mainly in the form of ledger account copies, self-made vouchers, etc. Hence, we are of the view that no useful purpose would be served in admitting these additional evidences and in remitting the matter to the file of the A.O. Accordingly, we decline to admit the additional evidences. However, we are of the view that the disallowance @ 25% made by the A.O. is on the higher side, since the assessee is a limited company and its accounts are being audited - the non-production of details and vouchers was also not appropriate. It is settled proposition that the onus to prove the claim would lie upon the shoulders of the assessee - disallowance of expenses may be reduced to 12.5% and the same would meet the ends of justice. Accordingly, we modify the order passed by Ld. CIT(A) on this issue and direct the A.O. to restrict the disallowance to 12.5% of the other expenses claimed by the assessee - Appeal filed by the assessee is partly allowed.

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• 2021 (6) TMI 1023 - ITAT HYDERABAD
  

  Addition being the expenditure under the head "consumption of stores and space" - Admission of additional evidence - HELD THAT:- We find that in the appeal proceedings before the ITAT, the ITAT had taken note of the evidence filed by the assessee and also that the AO has not verified such evidence. Therefore, ITAT thought it fit and proper to remand the issue to the file of the CIT(A) and directed him to call for a remand report from the AO on the evidence filed by the assessee.

  We find that in the remand proceedings before the CIT(A), the assessee had filed an application for admission of additional evidence and also the additional evidence - CIT(A) had called for the comments of the AO only on the petition for admission for additional evidence and did not forward the additional evidence to the AO and therefore AO has submitted his remand report only on the petition for admission of the additional evidence. Thus, it is clear that the additional evidence has not been verified either by the AO or the CIT(A) and hence the directions of the ITAT have not been followed in its letter and spirit - we deem it fit and proper to remand the issue to the file of the Assessing Officer for verification and denovo consideration of the issue in accordance with law. - Revenue's appeal is treated as allowed for statistical purposes.

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• 2021 (6) TMI 1022 - ITAT MUMBAI
  

  Penalty levied u/s 271B - delayed furnishing of tax audit report u/s 44AB due to delay in getting statutory audit report under the companies act - HELD THAT:- We find that assessee had sought to explain the genuine difficulty it has faced in finalizing the accounts without which the statutory audit under Companies Act and Tax audit under Income Tax Act could not be completed. The levy of penalty contemplated under section 271B of the Act is not automatic and the same shall not be levied if the assessee was able to provide reasonable cause for the delay.

  In the instant case, from the above narration of facts, that led to delay in finalization of statutory audit and tax audit as detailed hereinabove, we find that assessee had indeed sufficient and reasonable cause within the meaning of section 273B of the Act and hence, could not be invited with the levy of penalty under section 271B.

  Income declared by the assessee in the revised computation of income in the sum has been indeed accepted by the AO in the scrutiny assessment, which proves that all the necessary details were indeed made available by the assessee before the completion of assessment proceedings to the satisfaction of the learned Assessing Officer, together with the tax audit report and its annexures. We find that the Hon’ble Madras High Court in the case of CIT vs A N Arunachalam [1994 (1) TMI 65 - MADRAS HIGH COURT] had held that the tax audit report was ultimately made available to the ld AO before the completion of assessment proceedings and hence no penalty u /s 271B of the Act could be levied on an assessee. - Decided in favour of assessee.

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• 2021 (6) TMI 1021 - ITAT JAIPUR
  

  Unexplained cash deposit u/s 68 - HELD THAT:- As noticed that during the year under consideration, an information was received from the ADIT (Inv.), Ajmer regarding cash deposits in the bank account of the assessee. AO issued necessary notices to the assessee for explaining the deposits of cash in the bank account and in response thereto, it was submitted by the assessee that the assessee’s account was used by his fast friend Mr. Kana Ram to deposit sale proceeds of his immovable property.

  As submitted by the assessee that since Mr. Kana Ram was his fast friend and at the time of sale of his immovable property, the said Kana Ram was not having any bank account in any bank, therefore, he requested the assessee to deposit the said funds in assessee’s account and it was agreed between the assessee and Mr. Kana Ram that Kana Ram would transfer the entire amount to his bank account as and when the same is opened in any bank - as per the assessee, an affidavit was given by said Mr. Kana Ram to the assessee. As further submitted by the AR that the amount deposited by Mr. Kana Ram was withdrawn/paid as per the direction of Mr. Kana Ram and the details of the buyers have already been given by the assessee in his written submissions which of the order of the ld. CIT(A).

  We noticed that in order to verify the statement of the assessee, summons was issued to said Mr. Kana Ram by the ADIT (Inv.), Ajmer. However, in response to the said summons, the reply was filed by one Shri Shailendra Singh Rathore, Advocate on behalf of Mr. Kana Ram thereby taking a contrary stand and denied the liability of the said Kana Ram. Even during the course of assessment proceedings, the A.O. had sought information from the bank u/s 133(6) of the Act and also issued summons u/s 131 of the Act to the said Kana Ram.

  On one occasion, the said Mr. Kana Ram sought adjournment on the ground that he is ill and therefore, on said request, the matter was adjourned by the A.O. for 10/12/2018. The said Mr. Kana Ram did not appeal. Again, another notice through registered post was sent to Mr. Kana Ram, however, the same was returned back unserved by the postal authority with the remark “recipient is out of Kekri and refused to receive the post by his family members”.

  All those facts on record goes to show that the assessee has miserably failed to prove the affidavit filed by the said Mr. Kana Ram and even the said Kana Ram did not attend the office of the A.O. in spite of the fact that he was served with the summons U/s 131 of the Act. In this way, the statement made in the said affidavit remained unproved and no other independent evidence has been brought on record by the assessee to substantiate the statement made by the said Mr. Kana Ram in the affidavit.

  No evidence has been placed on record in the shape of ITR of the said Mr. Kana Ram for the year under consideration reflecting the source of the funds. Keeping in view the totality of the facts and circumstances, we are of the view that the addition sustained by the ld. CIT(A) do not need any interference. Appeal of the assessee is dismissed.

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• 2021 (6) TMI 1020 - ITAT AHMEDABAD
  

  Disallowance of 10% out of total expenses incurred - HELD THAT:- We see no reason to discredit the findings given by the CIT(A) and restore the action of the AO as demanded by Revenue. The reasons given by the CIT(A) are that the expenses incurred are comparable and there is no allegation that expenses are bogus from the AO. Having regard to past history and in the absence of any specific defect, the CIT(A) rightly concluded that the action of the AO is unsustainable on facts. Merely because the expenses incurred appears excessive qua the corresponding business activities, it cannot be a ground for ad hoc disallowance as long as the expenses incurred are commercially expedient. We thus see not merit in the grievance of the Revenue in this regard.

  Addition being 10% out of sundry credits - HELD THAT:- CIT(A) found force in the claim of assessee for reversal of additions on the ground that there is no mismatch or non-tallying with figures of sundry creditors. Revenue could not point out any specific defect in the order of the CIT(A) in its rebuttal before us. We totally fail to understand the rationale for disallowance of ad-hoc sum out of existing sundry creditors in this manner. Hence, we decline to interfere.

  Estimation of interest income towards notional interest @12% on loans and advances - HELD THAT:- We notice from the order of the CIT(A) that the AO has not found any justification in low income in comparison to corresponding high loans/advances/investment in shares. CIT(A) reversed the action of the AO towards addition of notional interest income on the ground that income arising from advances are duly recorded in the books and the position is to be viewed in the peculiar facts of the case i.e. the cancellation of banking license of the assessee and settlement of the advances is under one time settlement Scheme (OTS) etc. The ad-hoc estimation of income on OTS of doubtful advances, in any case, is against the doctrine of real income and thus cannot be countenanced. We thus see no perceptible reason to dislodge the conclusion drawn by the CIT(A) in favour of the assessee.

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• 2021 (6) TMI 1019 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCH
  

  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - existence of debt and dispute or not - time limitation - HELD THAT:- Notice with respect to the application was issued to the Corporate Debtor vide order dated 23.01.2020 of the Adjudicating Authority. Further, it has been observed that neither a reply to the Demand Notice nor to Section 9 application was filed by the Corporate Debtor - The dates of default which are continuing from 2015 onwards till 2019. Considering the limitation period, the invoices from 2016 to 2019 will be within limitation, the amount of which is more than 1 Lac and the default is continuing. The present application is filed on 19.01.2020. Hence the application is not time barred and filed within the period of limitation.

  The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - Having considered the facts and circumstances and the material available on record, the Application filed by the Operational Creditor is complete in all respect. This authority is satisfied that the Operational Debt which is due to the Applicant has remained unpaid and default has occurred.

  The Application is admitted and the commencement of the CIRP is ordered.

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• 2021 (6) TMI 1018 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD BENCH
  

  Liquidation of the Corporate Debtor - Section 33 r.w. Section 34 of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- An order of liquidation can be passed in the present case as no resolution has been received and COC has also resolved to do so. The COC has passed the resolution to liquidate the corporate debtor in compliance of section 39B & 39C of IBBI (CIRP) Regulations, 2016. The sole member of COC has also resolved to contribute to the costs of liquidation.

  The name of the RP has been proposed by the applicant in the present application whose name has already been approved by COC to act as liquidator. Hence the proposed RP/applicant is appointed to act as a liquidator.

  Application allowed.

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• 2021 (6) TMI 1017 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD BENCH
  

  Dissolution of Corporate Debtor - Section 54 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Having satisfied to the fullest extent that no further assets to be utilized for recovery of dues of the Creditors/Stakeholders, no further proceedings would remain in the Liquidation Process of the Corporate Debtor, the Liquidator has approached this Adjudicating Authority for appropriate directions under Section 54 of the IB Code - this Adjudicating Authority in exercise of the powers conferred under Sub-Section (2) of Section 54 of the Code, hereby, orders the dissolution of the Corporate Debtor viz., M/s. Subhlaxmi Dyeing & Printing Mills Private Limited from the date of this order and the Corporate Debtor stands dissolved.

  The Liquidator Mr. Kailash T Shah is discharged from his duties and responsibilities as the Liquidator of the Corporate Debtor - application allowed.

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• 2021 (6) TMI 1016 - ITAT MUMBAI
  

  Revision u/s 263 by CIT - Whether waiver of loan has been held to be capital receipt and cannot be taxed u/s. 28(iv)? - HELD THAT:- While framing the assessment u/s. 143(3) of the Act, pursuant to the order u/s. 263 of the Act, the Assessing Officer has not made any addition in so far as interest part is concerned and in so far as waiver of principal amount is concerned, the issue is highly debatable, in as much as, there are direct decisions in favour of the assessee and against the revenue.

  We are of the considered view that the basis for assuming jurisdiction u/s. 263 of the Act is Note II to Schedule XIIIB of the balance sheet was very much examined by the Assessing Officer while framing assessment order u/s. 143(3) of the Act and, therefore, it cannot be said that there was no application of mind by the Assessing Officer.

  AO has taken a plausible view after going through the relevant balance sheet, profit and loss account, audit report and notes thereon. After considering the facts, the Assessing Officer has taken a plausible legal view that waiver of loan by joint promoters by way of corporate guarantee for strengthening net worth was capital receipt.

  Waiver of loan has been held to be capital receipt and cannot be taxed u/s. 28(iv) of the Act as mentioned above, This view has been taken by the Hon'ble Bombay High Court in the case of Mahindra and Mahindra [2003 (1) TMI 71 - BOMBAY HIGH COURT]

  This shows that the view taken by the Assessing Officer is a plausible view in line with the decision of the Hon'ble High Court and, therefore, by no stretch of imagination, the assessment order dated 22.12.2006 can be said to be erroneous and prejudicial to the interest of the Revenue.

  We find that in the case of CIT Vs. Anil Kumar [2010 (2) TMI 75 - DELHI HIGH COURT] has held that where it was discernible from record that the A.O has applied his mind to the issue in question, the ld. CIT cannot invoke section 263 of the Act merely because he has different opinion. Thus we are of the considered opinion that the assessment order framed u/s. 143(3) of the Act is neither erroneous nor prejudicial to the interest of the Revenue. - Decided in favour of assessee.

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• 2021 (6) TMI 1015 - ITAT MUMBAI
  

  Bogus LTCG - Addition u/s 68 - gain derived from sale of such share was treated as long term capital gain and claimed to be exempt under section 10(38) - genuineness of the capital gain derived from sale of shares of GFL Financials - HELD THAT:- As observed by CIT (A) that even on the date on which the shares were split, i.e. on 09-03-2013, the shares were not credited to the demat account of the assessee. All these facts certainly raise some amount of doubt and suspicion regarding the share transaction - it is trite that doubt and suspicion howsoever strong, cannot take the place of evidence - merely based on doubt and suspicion, no addition can be made - in our considered opinion, the assessee must also come clean on facts and prove the genuineness of the transaction by properly explaining the doubts raised by the departmental authorities with regard to the belated credit of the shares to her demat account and encashment of cheque after more than a year of transaction.

  Doubts raised by the departmental authorities in their respective orders, may not have been put forward to the assessee seeking clarification. It is also a fact that enquiry which was required to be done by the departmental authorities to go to the root of the matter and ascertain the genuineness of the shares of GFL Financials, have not been done.

  The entire issue relating to the genuineness of share transaction involving the shares of GFL Financials requires fresh consideration at the end of the AO. As regards the decisions relied upon by learned counsels appearing for the parties, though, there cannot be any dispute regarding the principle/ratio laid therein; however, they have to be applied only after full facts are brought on record. Since, in the facts of the present case we are of the view that the facts relating to the disputed issue have not been fully brought on record, we cannot apply the ratio laid down in the decisions relied upon in vacuum.

  Accordingly, we deem it appropriate to set aside the impugned order of CIT(Appeals) and restore the issue to the file of the AO for fresh adjudication keeping in view our observations hereinabove. Grounds are allowed for statistical purposes.

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• 2021 (6) TMI 1014 - NATIONAL COMPANY LAW TRIBUNAL , KOLKATA BENCH
  

  Approval of scheme of Arrangement - seeking orders and directions with regard to dispensation of various meetings - Section 230-232 of Companies Act - HELD THAT:- Various directions regarding convening and holding of various meetings issued - various directions regarding issuance of various notices issued - the scheme is approved - application allowed.

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• 2021 (6) TMI 1013 - ITAT SURAT
  

  Addition u/s 68 - unexplained share Capital and Share Premium - need for share - applicants to appear before the Id AO when they filed confirmations, bank accounts, statements, ITRs and also complied with statutory notices u/s 133 (6) - HELD THAT:- Most of the share - applicants were also simultaneously subjected to scrutiny assessment u/s 143(3) wherein the matter of investment in shares of appellant - company and the sources of same were being examined by the AOs. AO could have informed the concerned AO to make any verification he wanted to.

  As argued that the Id AO is duty bound to inform concerned AO of share - applicant and not to do direct inquiry with them, as held in the decision RANCHHOD JIVABHAI NAKHAVA [2012 (5) TMI 186 - GUJARAT HIGH COURT] by the jurisdictional High Court. That the share applicants did not turn up before the Id AO, cannot a reason for addition, when all confirmatory documentary evidences are furnished. Considering these above facts and circumstances, we are of the view that assessee has satisfied three ingredients of the Section 68 , viz: (i) identity, (ii) creditworthiness and (iii) genuineness of the transactions.That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed.

  Estimation of Gross Profit (GP) - No reason of downfall of GP with supporting evidences by assessee - CIT-A deleted the addition - HELD THAT:- We note that while deleting the addition on account of estimation of Gross Profit, the CIT(A) held that books of accounts can be rejected only on cogent finding of defects in the books of accounts, when the AO has not examined the books of accounts, there is no question of rejection of the same.We note that there is no infirmity in the conclusion reached by the ld CIT(A).

  The conclusions arrived at by the ld CIT(A) are, therefore, correct and admit no interference by us. We, approve and confirm the order of the CIT(A). - Decided against revenue.

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