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Showing 161 to 180 of 2063 Records
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2019 (1) TMI 1907
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existenc eof debt and dispute or not - service of demand notice - HELD THAT:- The demand notice was sent by electronic mode which is one of the permissible modes of service - Sub-rule (2) of Rule 5 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 makes it clear that the notice could either be sent by hand, registered post or speed post or by electronic mail service to a whole time director or designated partner or key managerial personnel of the corporate debtor.
The instant petition was filed on 15.05.2018 i.e. much after the expiry of 10 days period as required under Section 9 of the Code. The learned counsel for the petitioner referred to the affidavit of the proprietor of the operational creditor in which it is stated that no dispute of unpaid operational debt has been received from the corporate debtor in order to comply with the requirement of Section 9(3)(b) of the Code - The petitioner has also filed the bank statement issued by Axis Bank where the petitioner is maintaining account and the credits were being received from the corporate debtor, though certificate in terms of Section 9(3)(c) of the Code has not been filed but we find that the same being not mandatory and the statement of accounts filed by the petitioner would be sufficient.
All the ingredients of clause (i) of Sub-section (5) of Section 9 of the Code have been fulfilled by the petitioner. The petition filed under Section 9 of the Code is, therefore, admitted - moratorium declared.
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2019 (1) TMI 1906
Maintainability of suit - suit for recovery of mere interest under the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993 - contract for supply of goods between the parties was entered into prior to enforcement of the Act, i.e. on 23.09.1992 - maintainability of suit if no reservation is made by the supplier retaining to it the right to recovery interest under the Act when the payment(s) of the principal sum is/are accepted, though these may be made beyond the prescribed period.
Whether Act, 1993 is not applicable when the contract for supply was entered between the parties prior to enforcement of the Act i.e. 23.09.1992? - HELD THAT:- The Act, 1993 being beneficial legislation enacted to protect small scale industries and statutorily ensure by mandatory provision for payment of interest on the outstanding money, accepting the interpretation as put by learned Counsel for the Board that the day of agreement has to be subsequent to the enforcement of the Act, the entire beneficial protection of the Act shall be defeated. The existence of statutory liability depends on the statutory factors as enumerated in Section 3 and Section 4 of the Act, 1993. Factor for liability to make payment Under Section 3 being the supplier supplies any goods or renders services to the buyer, the liability of buyer cannot be denied on the ground that agreement entered between the parties for supply was prior to Act, 1993. To hold that liability of buyer for payment shall arise only when agreement for supply was entered subsequent to enforcement of the Act, it shall be adding words to Section 3 which is not permissible under principles of statutory construction - even if agreement of sale is entered prior to enforcement of the Act, liability to make payment Under Section 3 and liability to make payment of interest Under Section 4 shall arise if supplies are made subsequent to the enforcement of the Act.
Whether in the event it is found that Act is applicable also with regard to contract entered prior to Act, 1993 in pursuance of which contract, supplies were made after the enforcement of Act, 1993, the Act, 1993 can be said to have retrospective operation? - HELD THAT:- Retroactivity in the context of the statute consists application of new Rule of law to an Act or transaction which has been completed before the Rule was promulgated - In the present case the liability of buyer to make payment and day from which payment and interest become payable Under Section 3 and 4 does not relate on any event which took place prior to Act, 1993, it is not even necessary for us to say that Act, 1993 is retroactive in operation. The Act, 1993 is clearly prospective in operation and it is not necessary to term it as retroactive in operation. We, thus, do not subscribe to the opinion dated 31.08.2016 of one of the Hon'ble Judges holding that the Act, 1993 as retroactive.
Whether money suit by M/s. Shanti Conductors was barred by limitation? - HELD THAT:- The Limitation Act, 1963 is fully applicable with regard to money suit filed by the Appellant hence, the question of limitation has to be answered as per Limitation Act 1963 - Article 113 provides for "time from which period begins as when the right to sue accrues". 1993 Act Section 4 creates statutory liability to pay interest from the day as mentioned in Section 4 the liability to pay is fastened on buyer. The amount become due as soon as liability to pay arises. Section 6 also uses the word "amount due from buyer". The amount due is amount which is liable to be paid by buyer Under Section 4. Thus the fact that last payment was made on 05.03.1994 cannot be treated as period for beginning of the limitation and on that ground it cannot be held that suit was within time - the benefit of the Section 14 cannot be claimed by the Plaintiff in the facts of the present case. It is thus concluded that suit filed by the Plaintiff being Money Suit No. 21 of 1997 was barred by time.
Whether judgment of this Court in Purbanchal Cables [2013 (3) TMI 518 - SUPREME COURT] by which appeal of M/s. Shanti Conductors was also dismissed is binding between the parties i.e. M/s. Shanti Conductors and Assam Electricity Board and the Appellant cannot be allowed to question the said judgment in these appeals? - HELD THAT:- Having held that Money Suit filed by the Appellant was barred by time, it is not necessary to express any opinion on this issue.
Whether the suit filed by the Appellants for recovery of only interest when admittedly entire principal amount was paid prior to filing of the suit can be said to be maintainable? - HELD THAT:- The interpretation put by learned Counsel for the Board is that proceeding for recovery of interest can be undertaken only when any amount is due. He submits that amount due used in Section 6 is Principal amount. In event we accept the interpretation put by counsel for the Board, then buyer will very easily get away from payment of interest only after making payment of Principal amount. This interpretation shall defeat very purposes of 1993 Act. It is well settled that provisions of Act has to be interpreted in the manner so as to advance the object of the Act - the suit by supplier for recovery of only interest is maintainable.
Whether appeal filed by M/s. Trusses and Towers Pvt. Ltd. challenging the review judgment dated 19.03.2003 cannot be entertained since no liberty was granted by this Court in SLP(C) No. 12217 of 2001 [2001 (8) TMI 1435 - SC ORDER] when the SLP filed against the main judgment of the High court dated 05.04.2001 was dismissed as withdrawn? - HELD THAT:- The Division Bench judgment does not indicate that it proceeds on the ground as contended by the Appellant and noticed by this Court on 06.08.2001. The interest of 9% was allowed on the premise that 1993 Act is not applicable and said interest is allowed on equity relying on an earlier judgment on this Court in Assam Small Scale Industry Development Corporation and Ors. v. J.D. Pharmaceuticals and O [2005 (10) TMI 494 - SUPREME COURT] - thus the present appeal challenging the review judgment cannot be entertained. The ground on which the Appellant can challenge the review judgment can be the ground on which liberty was obtained to file review. We thus hold that Civil Appeal No. 8445 of 2016 is not maintainable.
Whether the High court while considering the Review petition No. 75 of 2001 M/s. Trusses & Towers Pvt. Ltd. even after expressing that Act, 1993 is not applicable could have allowed 9% interest to the Plaintiff? - HELD THAT:- High Court did not commit any error in awarding 9% interest to Plaintiff Respondent. There are no error in the judgment allowing partly the review application filed by the Plaintiff.
Appeal dismissed.
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2019 (1) TMI 1905
Time limitation for issuance of SCN - the proceedings are pending for the last more than 16 years when fresh notice for date of hearing was issued on 3.5.2017 - Section 11A (1), (4) and (11) of Central Excise Act.
HELD THAT:- Issue Notice.
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2019 (1) TMI 1904
TP Adjustment - whether the assessee is a BPO or a KPO? - Eclex Solutions Limited exclusion - HELD THAT:- We feel there is no need to address the preliminary issue as to whether the assessee is a BPO or KPO. We find that the ld.AR was very fair in stating that once the comparable Eclex is excluded from the list of comparables chosen by the ld. TPO, then its margin would be through, warranting no adjustment to ALP in respect of international transaction carried out by it. Hence, we proceed to address that particular comparable alone in this order.
Outsourcing activity in one company which is done predominantly cannot be treated as a comparable with the company which is engaged in carrying out its activity in-house. These facts were duly brought as a specific objection by the assessee before the ld. TPO as well as ld. DRP as detailed elsewhere hereinabove in this order by way of written submissions. Hence, it cannot be said that the assessee had made this objection for the first time before this Tribunal. We also find that the objections made by the assessee with regard to this comparable namely Eclex Solutions Limited had not been disputed by the ld. TPO or by the ld. DRP by pointing out certain factual differences in the objections of the assessee, more particularly, with regard to the predominant activity carried on by the said comparable.
We hold that Eclerx Solutions Limited should not be treated as a comparable as it is functionally different and we direct the ld. TPO to exclude the same from the list of comparables while benchmarking the international transactions for determination of Arm’s Length Price, for this assessment year.
We would like to make it clear that the grounds raised by the assessee with regard to other comparables are left open and no opinion is given by us in this order. Accordingly, the grounds raised by the assessee are allowed.
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2019 (1) TMI 1903
Compromise - Genuineness and validity or otherwise of the compromise by this Court - undue influence or coercion or not - compounding of offences - HELD THAT:- In the present case FIR was registered and the case is at the stage of defence evidence, both the parties to the litigation have entered into compromise and on that basis, the present petition under Section 482 Cr.P.C. has been filed for quashing the present FIR. The compromise has been arrived at with the intervention of the respectable and family members and the parties have decided to keep harmony between them and to live peacefully in future. Hence, it would be in the interest and justice that parties are allowed to compromise the matter.
The instant petition is accepted.
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2019 (1) TMI 1902
Disallowance u/s 14A - suo motu disallowance made by the assessee - HELD THAT:- In the case of Maxopp Investment Ltd. [2018 (3) TMI 805 - SUPREME COURT], it has been held that “in those cases, where shares are held as stock-in-trade, main purpose is to trade in those shares and earn profits there from, in the process, certain dividend is also earned, though incidentally, which is also an income. This triggers applicability of section 14A which is based on theory of apportionment of expenditure between taxable and nontaxable income. Therefore, to that extent, expenditure incurred in acquiring those shares will have to be apportioned.”
We observe that the assessee has filed a computation with net disallowance u/s 14A, having considered the total value of non-taxable investments as on 31.03.2011 and 01.04.2010. It is supported by the closing stock as on 31.03.2011 on which dividend was earned in FY 2010-11 and opening stock as on 01.04.2010 on which dividend was earned in FY 2010-11.
In the case of ACIT v. Vireet Investment (P) Ltd. [2017 (6) TMI 1124 - ITAT DELHI] it has been held by the Special Bench that only those investments are to be considered for computing average value of investment which yielded exempt income during the year.
The latest computation sheet filed by the counsel, wherein net addition also has been arrived at by the assessee, was not submitted either before the AO or the Ld. CIT(A) - the present matter may be examined by the AO. We set aside the order of the Ld. CIT(A) and restore the matter to the file of the AO to make a de novo order in the light of the discussion above, after giving reasonable opportunity of being heard to the assessee. We direct the assessee to file the relevant documents/evidence before the AO. - Appeal is allowed for statistical purposes.
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2019 (1) TMI 1901
TP Adjustment - Comparable selection - whether orders passed by learned DRP and by this Tribunal in the case of Vodafone India Services Pvt. Ltd. [2014 (12) TMI 563 - ITAT MUMBAI] could be used in the hands of the assessee herein? - HELD THAT:- We find that the very same business carried out by the assessee up to 4.12.2007 was carried out by Vodafone India Services Pvt. Ltd. for the remaining part of the financial year. We also find that the very same seventeen comparable companies were selected by learned TPO while framing transfer pricing assessment in the hands of Vodafone India Services Pvt. Ltd. for A.Y. 2008-09. Hence, we hold that there is no harm in following learned DRP‟s order and order of this Tribunal for assessee-herein.
From the aforesaid table, it could be seen that average of final eight comparable works out to 15.85%, whereas assessee‟s margin was 15.65%. Giving credit to the assessee for range of plus/minus 5%, we hold that assessee‟s margin would be at arm‟s length.
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2019 (1) TMI 1900
Bogus LTCG - Addition u/s 68 - Bogus Long-Term Capital Gain earned at listed equity shares sold through Bombay Stock Exchange after payment by Security Transaction Tax, on the ground that it is a case of penny stock - HELD THAT:- As seen nowhere there is any evidence or information gathered during the course of any investigation or inquiry either from the broker or from the company M/s. Kappac Pharma Ltd. that assessee is beneficiary of any accommodation entry or has routed his own unaccounted money in the garb of fictious Long-Term Capital Gain.
The entire addition has been made on hypothesis from general modus operandi adopted by various entry operators for providing accommodation entry in Long Term Capital Gain. Here, in this case, there is no reference of any entry provider or any information that the assessee has paid any unaccounted money for getting such kind of an accommodation entry.
Once the nature of transaction is dealing in shares and source of the credit appearing in the bank account is from sale of shares, then without any contrary material to show that such credit in the bank account is bogus or non-genuine, then said credit cannot be deemed to be income of the assessee. Though such a phenomenal rise of the shares in a span of 18 months do raises lot of suspicion, but howsoever strong suspicion may be, there has to be some kind of an evidence or information that assessee was involved in some kind of bogus or sham transaction, either by himself or through some entry provider. There is no whisper in the assessment order or appellate order that any action has been taken by SEBI against M/s. Kappac Pharma or they have been found to be rigging the price in the stock exchange.
Once a listed share which is regularly traded in the recognized stock exchange at quoted price and the sale of share is recorded in the stock exchange and sale proceeds of the said share has been credited in the bank account, then source of credit stands proved.
Simply because the price of the scrip has risen manifold cannot per se be the ground to hold that credit in bank account of the assessee is unexplained. If there is some undisclosed or unexplained money which has been routed through some suspicious channel then that has to be some evidence or trail brought on record so as to nail the assessee. General modus operandi of the entry providers cannot be the basis for making the addition in each and every case in absence of any specific information or material that such person is beneficiary of accommodation entry or any kind of scam or is part of that modus operandi. Appeal of the assessee is allowed.
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2019 (1) TMI 1899
Addition u/s 14A r.w.r. 8D - HELD THAT:- CIT (A) has held that the appellant had sufficient own funds as well as interest free funds available which was more than the amount of investment made by the assessee. Since, the assessee had sufficient interest free funds, the Ld.CIT (A) has rightly deleted the addition made u/s 14A read with rule 8D (2)(ii) of the Rules in the light of the judgment in the case of CIT vs. HDFC Bank [2014 (8) TMI 119 - BOMBAY HIGH COURT].
The assessee has not earned any exempt income, no question of disallowance does arise. The Hon’ble Delhi High Court, in the case of Cheminvest Ltd.[2015 (9) TMI 238 - DELHI HIGH COURT] has held that in order to apply the provisions of section 14A read with rule 8D, there should be an actual receipt of income which is not includible in the total income during the relevant previous year or in other words section 14A will not apply if no exempt income is received or receivable during the year relevant to the assessment year under consideration. Since, the findings of the Ld. CIT (A) are based on the law laid down there is no infirmity in the order of the Ld. CIT (A). Hence, we uphold the findings of the Ld. CIT (A) and dismissed this ground of appeal of the revenue.
Additional depreciation u/s 32 (1)(iia) - plants and machinery acquired and installed in the preceding year - Asset put to use for less than 180 days in the previous year - HELD THAT:- In the case of CIT vs. Rittal India Pvt. Ltd.[2016 (1) TMI 81 - KARNATAKA HIGH COURT] has decided the identical issue in favour of the assessee. In the said case the assessee had acquired and installed new plant and machinery in the assessment year 2007-08 and was put to use for a period of less than 180 days. The assessee claimed 10% additional depreciation u/s 32(1)(iia) in the assessment year 2007-08, which was allowed by AO. However, balance 10% was rejected in the assessment year 2008-09. In the first appeal the CIT(A) affirmed the action of the AO. But in the second appeal the Tribunal allowed the assessee’s claim. In the further appeal the Hon’ble High court affirmed the decision of the Tribunal and held that the assessee is entitled for 50% depreciation in the subsequent year.
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2019 (1) TMI 1898
Validity of assessment order passed u/s 143(3) - order made beyond the time limit specified under section 153(1) - as prayed that the said assessment order being time barred ought to be held as bad in law, liable to be quashed - AO made reference under section 92CA(1) to the Transfer Pricing Officer (TPO), who passed an order dated 08.10.2012 proposing no adjustment to the value of international transactions declared by assessee - whether the final assessment order passed in the case of assessee is time barred or has been passed within time available to the Assessing Officer? - HELD THAT:- In case reference is made under section 92CA(1) of the Act, then the Assessing Officer is empowered to pass order under section 143(3) r.w.s. 92CA(3) of the Act within period of three years i.e. upto 31.03.2013 for the captioned assessment year.
In the facts of case, where no addition was proposed by the TPO under section 92CA(3) of the Act and since there was reference made to the TPO, assessment order had to be passed within extended period of 12 months i.e. ending by 31.03.2013. However, the assessment order has been passed on 17.06.2013, hence the same is time barred.
We find no merit in the objections raised by Revenue that since draft assessment order was passed on 28.03.2013, there is nothing prejudicial to the interest of assessee. It is not draft assessment order but the final assessment order, which completes the proceedings against the assessee and there is no merit in the objections so raised. It may also be pointed out that the Assessing Officer in all fairness has in the letter dated 24.10.2018 accepted that the time barring date to pass assessment order was 31.03.2013.
Since the Assessing Officer has failed to do so, we hold that final assessment order passed on 17.06.2013 is both null and void in law. Consequently, the assessment made in the case of assessee is directed to be set aside. The jurisdictional issue raised vide ground of objection No.1 is thus, allowed.
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2019 (1) TMI 1897
Lack of territorial jurisdiction - HELD THAT:- Considering the fact that the issue pertains to an action taken by the Registrar of Companies, Kolkata and under identical situation with regard to action taken by Registrar of Companies, Mumbai on account of lack of territorial jurisdiction, we had refused to interfere into the matter earlier.
Petition dismissed.
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2019 (1) TMI 1896
Condonation of delay - delay of 898 days and and 883 days in filing the appeal - reasonable cause - HELD THAT:- In the case on hand, the factual matrix, in our view, clearly establishes that the delay was due to the negligence and inaction on the part of the assessee, which could have been avoided by the assessee if he had exercised due care and attention. Therefore in our opinion, in the factual matrix of this case there exists no sufficient and reasonable cause for the inordinate delay in filing the appeals for Assessment Years 2009-10 to 2010-11 by the assessee.
We have considered the factual matrix of this case to reach the finding that there existed no sufficient and reasonable cause for the inordinate delay of 898 days and 883 days in filing the appeals for Assessment Years 2009-10 and 2010-11 as the assessee has also not been able to establish that he was prevented by sufficient causes beyond his control from filing these appeals on time. In this view of the matter, we are of the opinion that, in the case on hand, the cause of substantial justice would not be served by condoning the inordinate delay in filing these appeals for which reasonable or sufficient cause has not been established. We accordingly reject these petitions for condonation of delay for Assessment Years 2009-10 and 2010-11.
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2019 (1) TMI 1895
TP Adjustment - comparable selection - Higher profitability criteria - HELD THAT:- Assessee as characterised as a value added distributor of printed courseware/e-books in India which assumes normal/significant risks associated with carrying out such marketing/distribution activities in India, companies functinally dissimilar with that of assessee need to be deselected.
Acropatel Technologies Ltd., (Information Technology service segment) company is engaged in provision of high end healthcare services and develops & owns related intellectual property providing substantial competitive advantage to this company, leading to higher profitability. As per annual report, this company is engaged in sale of software products. It is observed that assessee is undertaking software development relating to presentation of course material by way of including animation, graphics and audio training aids etc. Therefore, Acropetal Technologies Limited is functionally different from that of assessee and should have been excluded by Ld.TPO. The company is also engaged in two business segments, i.e., sale of products and sale of services but segmental profitability is not available in audited financial statements. Therefore, we direct Ld.TPO to exclude this company from comparables.
E-Infochips Ltd since no segmental data of this company is available indicating operating profit from software development services, we order to exclude this company from the list of comparables.
Wipro Technology Solutions Ltd disqualifies to become a comparable uncontrolled transaction for the purposes of inclusion in the final list of comparables under Rule 10B(1)(e)(ii). We, therefore, direct removal of this company from the list of comparables.
Sasken Communication Technologies - As revenue generated from sale of software services/ products and other services are to the tune of ₹ 39,419.62 crores. Further it is observed from order of Ld.TPO that this company has been selected as a comparable only because it satisfies filter of applicability of 75% of its income from services. However on perusal of accounts, no segmental financials are available. Moreover in our considered opinion functionally itself this company is not comparable with that of assessee. Accordingly we direct this comparable to be excluded from the final list.
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2019 (1) TMI 1894
Recovery proceedings - Challenge Auction Sale Notice - Prayer taking no action affecting the secondary charge of the petitioner on the schedule mentioned property - HELD THAT:- When the matter is taken up for hearing, the learned counsel for the petitioner submitted that since no auction was conducted pursuant to the sale notice dated 06.02.2014, the Writ Petition has become infructuous.
In view of the submission made by the learned counsel for the petitioner, the Writ Petition is dismissed as infructuous. No costs. Consequently, the connected miscellaneous petitions are closed.
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2019 (1) TMI 1893
Reopening of assessment u/s 147 - Jurisdiction of AO to issue notice - HELD THAT:- In the present case, it is an admitted fact that the ITO-1(5), Ludhiana issued the notice u/s 148 r.w.s. 147 of the Act, thereafter, the jurisdiction was transferred to the ITO-1(5), Jalandhar who never issued the notice u/s 148 of the Act but framed the assessment u/s 143(3) - As relying on JAWAHAR LAL AGARWAL VERSUS ITO-4 (2) , AGRA [2018 (3) TMI 936 - ITAT AGRA] he assessment framed by the AO who had not issued notice u/s 148 r.w.s. 147 of the Act is quashed.
Addition u/s 69 of the Act on account of non declaration of cash and other deposits in bank account.
Reasons to believe - AO while issuing the notice u/s 148 of the Act has mentioned that the assessee had deposited a cash of ₹ 1,39,28,640/- during the financial year 2009-10 in the bank account which had escaped assessment. On the contrary, in the assessment order, he mentioned that the cash deposited in the bank account of the assessee was ₹ 51,24,064/-, which is evident from para 8.3 off the assessment order dated 14.12.2017. Therefore, the reasons recorded by the AO were not emerging from the record available with him.
AO recorded the reasons which were not found to exists on the record, therefore, the reassessment framed deserves to be quashed. In view of the aforesaid discussion, we are of the confirmed view that viewed from any angle, the reassessment framed by the AO was not justified, hence quashed. - Decided in favour of assessee.
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2019 (1) TMI 1892
Remission of duty - goods that were claimed to have been lost/damaged by flood - rejection on the ground of lack of documentary evidence in the form of excise records and with the finding that the estimation of surveyor is not an acceptable substitute - HELD THAT:- It would appear, from a perusal of the impugned order, that the competent authority has proceeded to dispose of the claim as a claim for refund would have been. The principle of remission enshrined in Rule 21 of Central Excise Rules, 2002 is an acknowledgement of duty liability that crystalizes on completion of the manufacturing process but, nonetheless, not recoverable because there is no removal. We see no purpose in a fresh ascertainment from non-available records when the sanction of insurance claim, establishing loss of the goods, sufficed for exercise of discretion by the competent authority. In any case, for reasons explained ibid, there is no revenue implication.
Rule 21 of Central Excise Rules, 2002 is unambiguously clear that it is for the Commissioner of Central Excise to come to conclusion, based on his satisfaction and from the evidence of damage, about the extent to which the claim should be allowed. The impugned order has failed to do so. The damage that was effected by the floods is evident from the several records including complaint with the police authorities and the processing of the insurance claim. In the circumstances, the satisfaction mandated in Rule 21 of Central Excise Rules, 2002 cannot be discountenanced.
The original authority has failed to appreciate the circumstances in which the claim was filed and that the remission was sought on value less than the amount compensated by the insurer. That should suffice for acceptance of the claim of value of the goods that were unsalvageable.
The claim of remission admitted - appeal allowed - decided in favor of appellant.
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2019 (1) TMI 1891
Classification of imported goods - imported gas and electrically calcined anthracite coal - to be classified under CTH 2701 11 00 or under CTH 38249911? - HELD THAT:- The issue is no more res-integra in view of the decision of the Tribunal in the identical case against the same importer on self same issue as reported in COMMISSIONER OF CUSTOMS (PORT) , KOLKATA VERSUS CARBON RESOURCES PVT. LTD. [2017 (11) TMI 1951 - CESTAT KOLKATA] where it was held that The coal has undergone the process of calcinations does not alter the nature of the product as anthracite coal. The process of calcinations itself is a common treatment process applied to many solid materials.
Thus, the imported goods is a carbon additive, used in Steel and Casting Industry (not used as fuel) and classifiable under CTH 38249911, attracting BCD @ 7.5% and CVD @ 12.5%.
There are no reason to interfere with the impugned order and the same is sustained - appeal dismissed - decided against appellant.
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2019 (1) TMI 1890
Exemption u/s 11 - charitable activity u/s 2(15) - whether assesses has violated the provisions of Section 11(5) of the Act and that provisions of Section 13(1)(d) of the Act were applicable? - HELD THAT:- We find that the Tribunal [2017 (11) TMI 1707 - ITAT AHMEDABAD] has allowed appeal of the assessee and held that it is to be treated as charitable institution, which is entitled for exemption under sections 11 and 12. Its income has to be determined accordingly.
Since very basic for determination of assessee’s taxable income has been changed, therefore, all consequential issues were to be examined by the AO while giving effect to order of the Tribunal. The issues agitated in the CO are no more relevant and no specific finding is required to be recorded in the present proceedings. All these things should be taken care of by the AO while passing fresh assessment order in pursuance of the Tribunal’s order in the appeal of the assessee. Status of the assessee has been changed. It is to be treated as a charitable institution and its income is accordingly to be determined. Thus, no fresh directions are required to be issued to the AO, more so, the issues agitated in the CO are being not arisen from the assessment order. Hence, there is no force in the grounds taken in the CO. Cross Objection of the Revenue is dismissed.
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2019 (1) TMI 1889
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The respondent’s contentions raised in the Affidavit in reply are short of any merit. The existence of debt is clear from Loan agreements and various documents relating mortgage deed, hypothecation deed, certificate of creation of charge, guarantee agreements, both corporate as well as a personal, and the promissory note which are undisputed - The Petitioner has proved the existence of debt as well as the default.
The Application under sub-section (2) of Section 7 of IBC, 2016 is complete. The existing debt of more than one Rs lac against the corporate debtor and its default is also proved. Accordingly, the petition filed U/S 7 of the Insolvency and Bankruptcy Code for initiation of corporate insolvency process against the corporate debtor deserves to be admitted - Petition admitted - moratorium declared.
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2019 (1) TMI 1888
Dishonor of Cheque - insufficiency of funds - dispute regarding the status of the Company - HELD THAT:- Merely because Cheque no. 506664 does not bear the seal or stamp of the Company, and the same only bears the signatures of the applicants, it cannot be presumed that the cheque is issued from the personal bank account of the applicants in their personal capacity in wake of the fact that the bank account is in the name of the Company. Thus, once it is established that the cheque, which is dishonoured, is issued from the bank account of the Company, then, as per the law enunciated by the Apex Court in the case of ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT], the impugned complaint is required to be quashed and set aside since it was imperative to arraign the Company as an accused to the impugned complaint for maintaining the prosecution under section 141 of the N.I. Act.
In the present case, all the cheques are issued in the name of the Company, except Cheque No. 506664 of ₹ 4,00,000/-. The same bears the signatures of applicants No. 1 and 2, however, it is issued from the bank account of the Company and not from the personal account of applicants No. 1 and 2 - in the considered opinion of this court, the impugned Criminal Complaint No. 43307 of 2016 pending before the court of Chief Judicial Magistrate, Vadodara as well as all consequential and subsequent proceedings arising therefrom are quashed and set aside.
Application allowed.
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9911796707
