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Showing 161 to 180 of 2028 Records
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2019 (5) TMI 1868
Revision u/s 263 - order passed by the A.O. dropping the penalty proceedings initiated u/s 271(1)(c) - as per CIT A.O. had failed to examine the complete dimension of the facts and circumstances of the case and also failed to apply the correct proposition of law and, therefore, the order of the A.O. dropping the penalty u/s 271(1)(c) of the Act for the impugned year was erroneous in so far as it was prejudicial to the interest of the Revenue - HELD THAT:- It is not disputed that in the impugned year also penalty proceedings were initiated on the same addition made of interest on FDR’s, in the same facts as circumstances, as in A.Y 2007-08 to A.Y 2009-10 and A.Y 2012-13 and A.Y 2013-14 - In view of the fact that in all those years penalty levied was deleted by the ITAT/CIT(A), considering the backdrop of the case as stated, we have no hesitation in holding that the A.O’s view that no penalty was leviable for the impugned year i.e. A.Y 2011-12, was a plausible view and not outrightly incorrect as canvassed by the Revenue/Pr.CIT.
That the Department has contested the deletion of penalty by the I.T.A.T. in assessment years 2008-09 and 2009-10 is, we hold, wholly irrelevant for the conclusion that the view of the A.O. was a plausible view. The Department is well within its rights to contest any order as legally permissible, but merely by so contesting it does not make the orders challenged as being wholly untenable in law.
Interpretation of fact by the A.O. that the issue was identical to A.Y 2007-08, was correct. In A.Y 2007-08 the penalty had been deleted on the basis of agreement between the assessee and the department, as recorded in the ROD, to not levy penalty. This agreement, we hold, was applicable to the impugned year also. The reason being, the agreement was regarding the issue whether the assessee was a nodal agency of Chandigarh Administration or not.
Even otherwise, we hold, that the claim of the assessee that the interest income was not taxable in its hands, was based on a bonafide belief that the funds invested in FDR’s did not belong to it and were collected by it as a nodal agency of the Chandigarh administration. This stand was consistently taken by the assessee and was conceded only by amicable settlement with the department on taking a prima facie view of the matter. It is not that the claim was found outrightly untenable by any authority. Therefore till the date of settlement of the dispute the claim of the assessee was undoubtedly under a bonafide belief. In view of the same therefore the assessee could not be charged with having concealed or furnished any inaccurate particulars of income so as to levy penalty u/s 271(1)(C) of the Act.
We therefore hold that the order passed by the AO dropping penalty proceedings initiated u/s 271(1)(C) of the Act was not erroneous and the order passed by the Ld.Pr.CIT u/s 263 of the Act is therefore set aside. The appeal of the assessee is therefore allowed.
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2019 (5) TMI 1867
Clandestine removal - prefabricated cabinets shelters and phase channel material - extended period of limitation - HELD THAT:- After issuance of show cause notice, the appellant has asked to supply of relied upon documents i.e. production slip on the basis of which it is alleged by the Revenue that the appellant has cleared the goods clandestinely. The said production slip was not supplied to the appellant till date, despite their request. Moreover, in the adjudication order, it has been recorded that the appellant has asked for supply of documents after 5 years of their resumption, the said request cannot be acceded. Non supply of the relied upon documents shows the conduct of the adjudicating authority, therefore, it concluded that the adjudicating authority is not having the said production slip in their record to allege clandestine removal of the goods.
If the matter is remanded back to the adjudicating authority for re-adjudication, the same will not serve any purpose as the production slip was resumed in 2009 and we are running in 2019 in terms of the decision of the decision of this Tribunal in the case of M/S. MANISH VINYLS, SHRI O.P. KHETAN, DIRECTOR VERSUS CCE, FARIDABAD [2019 (4) TMI 434 - CESTAT CHANDIGARH], wherein this Tribunal has held that the gap of almost 19 years will not serve the purpose to remand back the matter to the adjudicating authority - in the present case, as the relied upon document has not been provided to the appellant, therefore, there is gross violation of principles of natural justice and remanding the matter will not serve the purpose.
Appeal allowed - decided in favor of appellant.
Appeal allowed by way of remand.
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2019 (5) TMI 1866
Maintainability of suit - Principles of constructive res judicata - suit barred by Order II Rule 2 of the Code of Civil Procedure, 1908 - allegation made by the Respondents in the suit was that the land was a joint family ancestral property and he had sold it for immoral purposes and in a manner prejudicial to the interest of joint family - HELD THAT:- The High Court holds that all successive claims, arising under the same obligation, shall be deemed to constitute one cause of action. It further finds that the crux of the matter is, there are two alienations of separate areas of the land on different dates, and although they are in favour of the same parties, it would give rise to more than one cause of action. It was further found that by restricting to first suit to the first alienation, it could not be found that Plaintiff has split-up the claims or split-up the remedies. The execution of the second sale deed in favour of the same party gives rise to distinctive and separate cause of action. The High Court further proceeds to refer to the illustrations in Order II Rule 2 Code of Civil Procedure - the High Court proceeds to take a case where A owns two houses and he let them to B. A suit is filed in respect of arrears of rent in respect of one house, though arrears were there in respect of the other house also. The High Court takes the view that it is the choice of the Plaintiff either to unite or not to unite both the causes of action and the second suit would not be barred.
Order II Rule 2(1) provides that a Plaintiff is to include the whole of the claim, which he is entitled to make, in respect of the cause of action. However, it is open to him to relinquish any portion of the claim. Order II Rule 2 provides for the consequences of relinquishment of a part of a claim and also the consequences of omitting a part of the claim. It declares that if a Plaintiff omits to sue or relinquishes intentionally any portion of his claim, he shall be barred from suing on that portion so omitted or relinquished. Order II Rule 2(3), however, deals with the effect of omission to sue for all or any of the reliefs in respect of the same cause of action. The consequences of such omission will be to preclude Plaintiff from suing for any relief which is so omitted. The only exception is when he obtains leave of the Court - in respect of omission to include a part of the claim or relinquishing a part of the claim flowing from a cause of action, the result is that the Plaintiff is totally barred from instituting a suit later in respect of the claim so omitted or relinquished.
It is undoubtedly true that the law does not compel a litigant to combine one or more causes of action in a suit. It is open to a Plaintiff, if he so wishes, however to combine more than one cause of action against same parties in one suit. However, it is undoubtedly true that the embargo in Order II Rule 2 will arise only if the claim, which is omitted or relinquished and the reliefs which are omitted and not claimed, arise from one cause of action. If there is more than one cause of action, Order II Rule 2 will not apply. It is undoubtedly also true that Order II Rule 2 manifests a technical Rule as it has the effect of posing an obstacle in the path of a litigant ventilating his grievance in the Courts.
That on the same cause of action, the Plaintiffs having omitted to sue in respect of the sale deed in question, we would think that bar Under Order II Rule 2 would apply - Appeal allowed.
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2019 (5) TMI 1865
Exemption u/s 11 - assessee failed to file audit report in form 10B alongwith return of income as per the provisions of sect ion 12(1) (b) - HELD THAT:- We note that the assessee obtained the copy of the audit report in Form 10B on 13.08.2014 and the return of income was filed by the assessee on 30.09.2014. It was also brought to our notice that the assessee had suo-moto uploaded the audit report in Form 10B on 15.06.2015 which was successfully uploaded and the CPC, Bangalore has processed the return of income of the assessee only on 16.03.2016. Thus, the requirement of law that the assessee shall have its account audited has been complied within the time prescribed by the statute since the assessee has obtained the audit report in Form 10B on 13.08.2014 before the return of income was filed thereafter only on 30.09.2014.
We note that the assessee has audited its account as per law and obtained copy of the audit report in Form 10B and also taking note the Hon’ble jurisdictional High Court High Courts held that the filing of furnishing the audit report along with the return of income is directory and not mandatory - See Garment Exporters Association of Rajasthan [2016 (7) TMI 709 - RAJASTHAN HIGH COURT], Bhawani Plywood (P) Ltd.[2007 (7) TMI 706 - PUNJAB AND HARYANA HIGH COURT], M/S KRISHI UPAJ MANDI SAMITI [2019 (1) TMI 1083 - RAJASTHAN HIGH COURT]. - Decided in favour of assessee.
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2019 (5) TMI 1864
Benefit of exemption from taxation u/s 10(23C) (vi) to the assessee school - assessee school is engaged in the activities of imparting education - HELD THAT:- CIT(A) has allowed benefit of exemption u/s 10(23C)(vi) of the Act to the assessee school by following the order of the Tribunal passed in the own case of the assessee decided along with other appeals with the lead case titled as ‘Kanya Mahavidyala vs. CIT(Exemptions)’ [2017 (6) TMI 434 - ITAT AMRITSAR]
Since, there is no change in the facts and circumstances, the ld. CIT(A) following the above order of the Tribunal (Supra) has allowed the claim of the assessee for year under consideration also. Appeal of the Revenue is dismissed.
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2019 (5) TMI 1863
Addition u/s 69A - treating cash deposit as unexplained - HELD THAT:- As the assessee has only two sources of income. One is the remuneration, interest, share of profit, and rent from partnership firm, M/s Modern Fashion Textile & Tailoring Co. in which he is a partner and second is business income from his proprietory concern, M/s Modern Tailoring Company. In respect of his proprietory concern, the assessee has declared income u/s 44AD since the turnover of this business does not exceed the threshold limit of ₹ 1 crore.
In the assessment order, the AO himself has accepted that the deposit in the bank account represents the realisation of sales. Therefore, even if the explanation of the assessee as to the source of deposits in the bank account is not fully accepted, then also the deposits as such cannot be considered as income. At the most, on such deposit which is accepted as a business deposit, net profit rate of 8% as prescribed u/s 44AD can be assessed. The net profit on the amount of ₹ 36,76,540/- works out at ₹ 2,94,283/-. Therefore, the addition should be sustained only to extent of ₹ 2,94,283/- instead of ₹ 36,78,540/- as done by the lower authorities - Appeal of the assessee is allowed in part.
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2019 (5) TMI 1862
Levy of service tax - Club or Association Service and Restaurant Service - service tax on donation received from members as well as non-members - HELD THAT:- It was stated in the show cause notice that appellant was receiving said donation from new members and was not discharging service tax on the same. It is also noted that the appellants have submitted before the learned Commissioner (Appeals) that the said amount collected was not a consideration for rendering of any service. It is also noted from the show cause notice that revenue also did not bring on record as to which service was being provided to the appellant out of the said amount collected as donation.
When there was no quid pro quo vis-à-vis donation by way of providing any service to such donors then such amounts do not in any way come within the ambit of amounts received against provision of Service and therefore, they were held to be not liable to be payment of service tax - Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1861
SSI Exemption - threshold limit of aggregate value of clearances - inclusion/deduction of Sales Tax/Trade Tax paid by the Appellant on the clearances effected during the relevant Financial Year - benefit of N/N. 8/2003-CE dated 01.03.2003 denied - HELD THAT:- While computing the aggregate value of the clearance in a particular Financial Year, the value has to be determined as provided under Section 4 of the Central Excise Act, 1944. This provides that the tax element of taxes such as Sales Tax/Trade Tax/VAT need to be deducted while determining the transaction value of the product. Thus, for determination of the aggregate value of the clearances under Notification No.8/2003-CE dated 01.03.2003, the aggregate value has to be calculated after making the necessary deductions of the Sales Tax/Trade Tax/ VAT etc.
On a perusal of the assessment order of the Sales Tax Department, it is seen that though the Appellant may not have shown sales tax element/amount separately for the individual invoices, but the fact of the matter is that it has been paying sales tax on all the clearances effected from both the factories. As per the mandate of Section 4 of Central Excise Act, 1944, the amount of the Sales Tax /VAT/Trade tax need to be deducted from the invoice value for computing the transaction value. The Original Adjudicating Authority, therefore, needs to consider the assessment order of the Sales Tax Department for giving the necessary deduction from the aggregate value of the clearances for determining the aggregate value of the clearances as required under proviso (VII) of Para-2 of Notification No.8/2003-CE dated 01.03.2003.
The matter is therefore remanded to the Original Adjudicating Authority to consider all the facts including the assessment order of the Sales Tax Department for the Financial Year 2005-2006 and re-determine the aggregate value of the clearances of the Appellant and, accordingly, decide whether the Appellant is entitled for benefit of Notification No.8/2003-CE dated 01.03.2003 or not - Appeal allowed by way of remand.
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2019 (5) TMI 1860
Liability of payment of service tax - time of taxability - on receipt of the service charges from an associated enterprise or the date when it was booked in the books of accounts of the associated enterprise? - the allegation of the department that once the rent amount is credited by the associated enterprises to the accounts of the appellant, in their books of accounts, the service tax is payable on such amount - HELD THAT:- A plain reading of explanation to Rule 6(1) of the Service Tax Rule 1994, it is clear that when there is a transaction of service with an associated enterprise, the payment received towards the value of taxable service rendered in such case shall include the amount credited or debited in the books of accounts of a person liable to pay service tax.
In the present case, the person liable to pay service tax being the appellant, therefore, on a literal interpretation of the said provision, it is crystal clear that the service tax is required to be paid by the Appellant when the amount is received by him in his books of accounts.
The impugned order being devoid of merit accordingly set aside - Appeal allowed.
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2019 (5) TMI 1859
Estimation of income - Scrutiny assessment - assessment came to be completed by estimating the income of the assessee at 8% of the total turnover after rejecting the books of accounts - CIT(A) considered the returns for the earlier AYs and estimated the income of the assessee at 3.5% as against 8% estimated by the AO - HELD THAT:- The assessee is a Highway Contractor and turnover keep on varying so also the nature of the expenditure. The business of the assessee is not located at a specific point. There are multiple variables coming into play in the nature of the business of the assessee. Obviously earlier or subsequent returns filed by the assessee would not be able to give a true and clear picture of the income of the assessee. In any case, there is only one scrutiny assessment in the case of the assessee for the earlier AYs being the AY 2012-13 which resulted in the income of the assessee being a hike up to 3.21%.
A perusal of the receipts for the earlier AYs compare to the relevant AY showed an increase in the turnover but for the AYs 2010-11 & 2011-12, the percentage of income reduced. For the AY 2012-13, the percentage of income increased on account of the addition made in the course of the scrutiny assessment.
CIT(A) failed to appreciate the increase in the turnover results the percentage of income should normally increase, substantially on account of the fact that the fixed cost, if any, remain constant or there would be very minor change in that. The variable cost would admittedly be in proportion to or having some relationship to the increase in the turnover. In the present case, no details have been produced before the Tribunal to substantiate the estimation at a lower figure. Thus, clearly before the AO nor before the Ld. CIT(A) nor before the Tribunal, the assessee is willing to produce any details to substantiate its returned income.
A perusal of the Assessment Order shows that the AO has followed a binding decision of A. Vajjiram & Bros. [2008 (8) TMI 528 - MADRAS HIGH COURT], the Ld. CIT(A) has reduced the estimated income by applying the decision of the Hon’ble ITAT where even the comparison have not been clearly shown. This being so, we are of the view that the estimation of the income as made by the AO which is clearly by following the decision of the Hon’ble jurisdictional High Court is on the right footing and should not be disturbed. Consequently, the order of the Ld. CIT(A) on this issue stands reversed and the income estimated by the AO stands restored. - Decided in favour of revenue.
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2019 (5) TMI 1858
Reopening of assessment u/s 147 - AO did not dispose of the objections separately and proceeded and passed the re-assessment order - HELD THAT:- In the present case it is clear that despite the request by the assessee, the Assessing Officer has completed the assessment without furnishing the reasons recorded for reopening of assessment. Furnishing the reasons recorded for reopening of the assessment is mandatory condition as held by the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd. Vs. ITO [2002 (11) TMI 7 - SUPREME COURT] wherein the Hon'ble Supreme Court has laid down the principle that recorded reasons must be furnished to the assessee when the assessee sought for the reasons.
We also find that Hon’ble Bombay High Court in the case of M/s. Bayer Material Science Pvt. Ltd. [2016 ( ) TMI 179 - BOMBAY HIGH COURT]after considering the decision of Hon’ble Apex Court in the case of GKN Driveshafts [2002 (11) TMI 7 - SUPREME COURT] had held that the reassessment order to be non sustainable when the objections to the re-assessment were not disposed off by the AO. Similar view was taken by the Hon’ble Bombay High Court in the case of KSS Petron Pvt. Ltd. [2016 (10) TMI 1112 - BOMBAY HIGH COURT].
Recording of reasons and furnishing of the same has to be strictly complied with as it is a jurisdictional issue and in the absence of reasons being furnished when sought for would make an order passed on reassessment bad in law. Revenue has not placed any contrary binding decision in its support. Considering the totality of the aforesaid facts and relying on the decisions cited herein above, we hold the reassessment order passed by the AO to be bad in law and thus set it aside.
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2019 (5) TMI 1857
Grant of exemption / approval u/s 10(23C)(vi) - category of assessee to which it falls - as per assessee society is existing solely for educational purpose and not for purpose of the profit - HELD THAT:- The Income Tax Act envisages exemption u/s 10(23C)(vi) to Universities or Educational Institution only but not to Trusts.
We find different sub sections / clauses are meant for different category of assessee's and clause (vi) do not provide for any exemption to Trusts. Hence, the assessee has not crossed the first level of eligibility or the primary filter to be eligible for deduction under section 10(23C)(vi). - Decided against assessee.
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2019 (5) TMI 1856
Citizenship status of persons residing in the State of Assam - detection and deportation of illegal migrants - HELD THAT:- Summary opinion of the Foreigners Tribunal, it is submitted, is not a detailed order and hence, is not a decision or judgment. Based on the said submission, it is argued that the opinion formed by the Foreigners Tribunal is not an order of the Competent Authority for the purposes of sub-para (2) to paragraph 3 of the Schedule to the 2003 Rules. Further, the opinion formed by the Foreigners Tribunal being an executive order would not operate as res judicata. It is highlighted that in some cases, persons who have been declared to be a foreigner under the Foreigners Act have been included in the draft National Register of Citizens for the State of Assam, while in others siblings and close blood relations of such persons have been named in the draft National Register of Citizens. It is averred that in these cases of contradictions, an aggrieved person should be entitled to take recourse to paragraph 8 of the Schedule to the 2003 Rules.
The Foreigners Act and the Citizenship Act including the Rules framed under the two Acts have to be read harmoniously as both the Acts are inter-related and sister enactments. Pertinently, the Rules framed under the Citizenship Act are subordinate legislation. The expression Competent Authority used in sub-para (2) to paragraph 3 of the Schedule to the 2003 Rules would obviously and without a doubt has reference to the duly constituted authority under the Foreigners Act - On receipt of such reference, the Tribunal has to submit its opinion/decision, which opinion/decision in terms of Explanation to Section 6A of the Citizenship Act is final and binding. Decisions of the Tribunal have been given primacy. Thus, the Competent Authority referred to in sub-para (2) to paragraph 3 of the Schedule would be, without a doubt, the Tribunal constituted under the Foreigners Act i.e. the 1964 Order.
The opinion/order of the Tribunal, or the order passed by the Registering Authority based upon the opinion of the Foreigners Tribunal, as the case may be, can be challenged by way of writ proceedings. Thus, it would be incorrect to hold that the opinion of the Foreigners Tribunal and/or the consequential order passed by the Registering Authority would not operate as res judicata. Both the opinion of the Tribunal and the Order of the Registering Authority result in determination of rights/status under the statute and by an authority after a contest on the merits which would necessarily operate as a bar to subsequent proceedings before the same authority for re-determination of the same issue/question - Merely because the trial is summary in nature cannot be a ground to reject it as unjust or unfair. Further, it was held in RAJESH KUMAR AND OTHERS VERSUS DEPUTY COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (11) TMI 135 - SUPREME COURT] that when civil or evil consequences ensue by reason of an act done by the statutory authority, principles of natural justice must be followed. The Act and power of judicial review vested with the constitutional courts provide sufficient safeguards, in the present context.
The contention of the Appellants on the perceived conflict pertaining to the adjudication on the citizenship status of persons is rejected - appeal disposed off.
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2019 (5) TMI 1855
Addition u/s 68 - Bogus subscription of shares along with premium - assessee argued acquiring shares of certain companies from certain shareholders without paying any cash consideration and instead the consideration was settled through issuance of shares to the respective parties - HELD THAT:- AO had erroneously invoked the provisions of section 68 of the Act to the facts of the instant case, which, in our considered opinion, are not at all applicable herein. This is a simple case of acquiring shares of certain companies from certain shareholders without paying any cash consideration and instead the consideration was settled through issuance of shares to the respective parties. Hence, we hold that provision of section 68 of the Act are not applicable in the instant case. It is a case of swapping of shares. The shares were allotted for consideration other than cash. This is kind of a barter transaction, that is, shares were issued by the assessee company to share subscribing companies, and these share subscribing companies, paid the consideration by way of paying equity shares.
From journal entry, one can conclude that effect of this journal entry would be that investments in shares will be debited and the share capital and premium will be credited. The result of this journal entry clearly shows that there is no cash credit in the books of accounts i.e. there is no any sum crediting in the year under consideration and it is kind of a barter transaction, where one thing is being exchanged with other thing, hence the provisions of section 68 do not apply.
A.O. has mechanically proceeded to make the addition without even appreciating whether it was a fit case for application of section 68. Moreover, the shares in the said 4 companies taken in the books of the assessee in exchange for share allotted to Gajvani Merchandize Pvt. Ltd. do provide the nature and source of the amounts of share capital allotted to Gajvani Merchandise Pvt. Ltd. In the present case, the additions have been made at the ends of the Gajvani Merchandise Pvt. Ltd. and 4 other private companies in respect of the shares raised in the said 5 companies.
If addition is required to be made that can be only in the hands of the said 5 companies as have been done u/s 68 in the said companies. As regards, the assessee company there is no case of application of section 68, once it has been demonstrated by the assessee that it did not receive money and that shares were received against the allotment of shares. As application of section 68 is not correct, hence the A.O.’s action, therefore cannot be sustained.
AO had erroneously invoked the provisions of section 68 of the Act, to the facts of the assessee`s case, which, in our considered opinion, are not at all applicable herein - Decided against revenue.
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2019 (5) TMI 1854
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - unpaid amount in settlement agreement - operational debt or not - second instalment not paid in settlement agreement - outstanding due to trigger CIRP or not - existence of debt and dispute or not - HELD THAT:- The case on hand is that the applicant relied on same demand notice dated April 6, 2018 which he has already withdrawn as per above mentioned clause of the settlement and now there is no demand notice, which is mandated as per the IBC, 2016 to trigger CIRP against the corporate debtor.
Further, the unpaid instalment as per the settlement agreement cannot be treated as operational debt as per section 5(21) of the IB Code. The failure or breach of settlement agreement cannot be a ground to trigger CIRP against the corporate debtor under the provision of the IBC, 2016 and remedy may lie elsewhere not necessarily before the Adjudicating Authority.
This application under section 9 of the IBC is liable to be rejected - Application dismissed.
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2019 (5) TMI 1853
TP Adjustment - comparable selection - whether the ITAT erred in upholding the exclusion of ten comparables for the purpose of determination of the Arm's Length Price of international transactions involving the Respondent-Assessee? - HELD THAT:- The Court has been taken through the ten comparables which have been excluded and the findings of the ITAT qua each of them. The Court is not persuaded that the issue raised involves any substantial question of law.
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2019 (5) TMI 1852
Territorial Jurisdiction - enforcement of an award - Agreements between the parties which led to the dispute, registered office of the respondents and land in relation to which the Agreements were executed, all situated in Kolkata - Explanation to Section 47 of the Arbitration and Conciliation Act, 1996 - it is also submitted that petitioner had also filed an application under Section 9 of the Act before the High Court of Calcutta, which has not been disclosed in the present petition - HELD THAT:- Section 48 of the Act gives the circumstances where the enforcement of a Foreign Award may be refused at the request of the party against whom it is invoked. As on date, the respondents are yet to file any application claiming such grounds. Unless such grounds are established, the Court has to prima facie assume that the Foreign Award that has been produced before it is capable of being enforced and therefore, grant interim protection in favour of the petitioner producing such an Award and seeking enforcement of the same.
The learned senior counsels for the respondents have further raised an objection on the Award being not enforceable as being violative of the Foreign Exchange Management Act, 1999 and Section 74 of the Indian Contract Act, 1872. The submissions so made would have to be considered once the respondents file a proper application under Section 48 of the Act.
The respondent no. 1 is directed to file an affidavit of its assets in Form 16A Appendix E of Code of Civil Procedure, 1908 within a period of four weeks from today. The respondents are further restrained from creating any third party interest or parting with the possession of Westin Hotel, Rajarhat, Kolkata - List on 8th August, 2019.
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2019 (5) TMI 1851
Exemption from GST - party failed to comply these instructions and not deposited the required fee in proper heads till date - HELD THAT:- The payment of ₹ 10,000/- was made to SGST only instead of ₹ 5,000/- each to SGST and CGST.
As Section 97(1) r/w Rule 104 of the CGST/SGST Act, the applicant is liable to pay fee of ₹ 5,000/- under each Act to be deposited in manner provided u/s. 49 of CGST Act. Failing such compliance, an application is incomplete and thus liable to be rejected. In the present case, the applicant deposited ₹ 10,000/- only in the name of SGST and did not deposit the required amount i.e., ₹ 5,000/- each to SGST & CGST, despite being given opportunity to cure such defect. Hence, the application is liable for rejection.
The application for Advance Ruling in Form GST ARA-01 of M/s. Awas Bandhu, Lucknow, U.P., dated 29-3-2019 is hereby rejected.
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2019 (5) TMI 1850
Seeking additional time of 30 days for filing the affidavit stating its acceptance or rejection of the modifications in terms of order - HELD THAT:- It is pertinent to mention that after General Elections 2019 is over and the new Government is to be formed on May 30, 2019. Modification of the resolution plan may have financial implications, which requires approval from different Departments of Government of India ; therefore, we are of the considered opinion that time should be allowed for filing affidavit of acceptance/rejection of modified resolution plan on this basis the applicant has sought 30 days - We think it appropriate to grant 30 days for filing an affidavit, but this will be treated as the last opportunity, failing which, we will be forced to pass the liquidation order under section 33 of the IBC, 2016. Till then, RP will look after the work of the corporate debtor with effect from today. Learned counsel representing unsuccessful resolution applicant Adani Port raised objections against granting an extension of 30 days' times.
List on July 2, 2019.
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2019 (5) TMI 1849
TP Adjustment - Comparability of Accentia Technologies Ltd. (‘Accentia’) - HELD THAT:- As per the ‘Management Discussion Analysis’ of the annual report, the company is engaged in software development as it has SaaS model. Further, the company has also developed software solutions such as ‘Instakare’ and ‘Insta PMS’ which helps healthcare providers with a holistic and comprehensive solutions that fulfils all the medical and administrative support needs. In the absence of segmental financial information for software development product sales (which would form part of income earned from medical transcription) the company cannot be considered as a comparable. Thus direct the TPO/AO to delete Accentia Technologies Ltd. from the final list of comparables.
Acropetal Technologies Ltd. (Seg) - Acropetal operates various services such as architectural, structural, electrical engineering etc. which are functionally different from the ITeS rendered by the appellant. We find that the Safe Harbour Rules issued by CBDT clearly demarcates between BPO and KPO services and has also provided separate Safe Harbour Margin for these type of services. We follow the above order of the Tribunal in assessee’s own case for the immediate preceding assessment year and direct the TPO/AO to delete Acropetal Technologies Ltd.(Seg) from the list of final comparables.
ICRA Online Ltd. (Seg) - Following the decision of Tesco Hindustan Service Centre Pvt. Ltd. [2017 (1) TMI 1673 - ITAT BANGALORE] and the observations in the Tribunal decision in appellant’s own case for AY 2010-11, we reject ICRA Online as a comparable.
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9911796707
