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Showing 161 to 180 of 2028 Records
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2019 (7) TMI 1869 - MADRAS HIGH COURT
Order of Single Judge directing the appellant to file necessary objection to the show cause notice issued by the respondent - HELD THAT:- We permit the appellant to make suitable reply to the impugned show cause notice dated 21.03.2018 within a period of two weeks from the date of receipt of a copy of this order. On such receipt, the respondent shall pass appropriate orders within a period of two weeks thereafter.
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2019 (7) TMI 1868 - ITAT MUMBAI
Exemption u/s 11 - withdrawing registration granted u/s 12A - CIT-E cancelling registration granted u/s 12A by invoking his powers u/s 12AA(3) - sole reason given by the Ld. CIT(E) for cancellation of registration is that the assessee has collected ‘Building fund’ from parents/students, thereby, violated provisions of Prohibition of Capitation Fee Act (Government of Maharashtra), 1987 - HELD THAT:- As gone through provisions of the Maharashtra Educational Institution, Prohibition of Capitation Fee Act (Government of Maharashtra), 1987 and rules and regulation. As per section 5 of the Principle Act, any trust or institution is authorised to collect voluntary donations from any benevolent persons for the purpose of development of trust/institution, but such donations shall not be collected in pursuance of admission to a course in a college/schools run by the trust or institution.
In this case, on perusal of details available on record, it is abundantly clear that the donations collected from the parents/students in the form of building funds is voluntary and such funds have been applied for the purpose of development of buildings and other infrastructures. It is also not in dispute that the donations including fees collected from students is not in excess of prescribed fees fixed by the statement government - CIT(E) erred in cancelling registration granted under section 12A by invoking his powers under section 12AA(3) of the IT Act, 1961 only for the reason of receipt of donations from students/parents without appreciating the fact that such donations are voluntary and also within the limit prescribed limit fixed by the competent authority.
DIT(E) in his order except stating that the trust is collecting donations being 'Building Fund’ from students/parents has not made any observations with regard to activities of the trust, if any, as referred to in section 11 or 13 of the IT Act, 1961. Unless, the Ld. DIT(E) brings on record any evidences to prove that the objects of the trust are not charitable in nature and its activities are not carried out in accordance with objects, then merely for the reason of collection of donations from students, that too when such donations are within the limit at prescribed fees fixed by the competent authority, registration granted under section 12A cannot be cancelled by invoking his powers under section 12AA(3) - Decided in favour of assessee.
Exemption u/s 11 - Once registration granted under section 12A is available to the assessee from the date of registration including for the impugned assessment year, then the AO was incorrect in denying the exemption under section 11 of the Income Tax Act, 1961. Therefore, we direct the AO to allow the benefit of exemption claimed under section 11, in respect of income derived from property held under trust subject to other provisions of the IT Act, which is applicable to the assessee.
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2019 (7) TMI 1867 - SUPREME COURT
Inherent jurisdiction of the Court under Section 482 of CrPC - attempt to murder - HELD THAT:- In this case, the High Court rightly refused to quash the criminal complaint, observing that it can exercise power under Section 482 of the CrPC only in rare cases. The power to quash the proceedings is generally exercised when there is no material to proceed against the Petitioners even if the allegations in the complaint are prima facie accepted as true. The High Court in effect found, and rightly, that the allegations in the complaint coupled with the statements recorded by the learned Magistrate had the necessary ingredients of offences under Sections 307, 323, 427, 447 and 506(2) read with Section 34 of the IPC.
This is not a fit case to quash the criminal proceedings - Appeal dismissed.
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2019 (7) TMI 1866 - SUPREME COURT
Refund claim - Invocation of the bank guarantees - whether the Tribunal was justified in interfering with the invocation of three bank guarantees issued to the Appellant and in directing the Appellant to refund the amounts covered by them to the Respondent? - HELD THAT:- The settled legal position which has emerged from the precedents of this Court is that absent a case of fraud, irretrievable injustice and special equities, the Court should not interfere with the invocation or encashment of a bank guarantee so long as the invocation was in terms of the bank guarantee.
In the present case, the bank undertook to the Appellant that it would pay the guaranteed amount on demand, subject to the overall amount stipulated in each of the three bank guarantees. It was not for the bank to determine as to whether the invocation of the bank guarantees was justified so long as the invocation was in terms of the bank guarantee. A demand once made would oblige the bank to pay under the terms of the bank guarantee. The State Bank of India correctly understood its legal obligations and paid over the amount to the Appellant. In this view of the matter and having regard to the terms of the bank guarantees, the principle of law which has been formulated by the Tribunal cannot be accepted as reflecting the correct legal position.
It is evident that following the invocation of the bank guarantees, the Respondent itself addressed a communication on 20 September 2012 to the Member Secretary of the Appellant. The communication contains a specific reference to the invocation of the bank guarantees. That apart, it is evident from the material on the record that the Appellant had issued a notice to show cause to the Respondent to which the Respondent also submitted a response - The Appellant has invoked the bank guarantees issued by the Respondent because of the failure of the Respondent to discharge the obligations imposed upon it by the Task Force Committee on 26 August 2011.
The Tribunal has erred in interfering with the invocation of the bank guarantees and in directing the Appellant to refund the amount of ₹ 25 lakhs covered by the three guarantees. While invoking the bank guarantees, the Appellant has clearly adverted to the fact that the status of compliance was reviewed in the Task Force Committee Meeting; and that the officials of the Appellant had inspected the industry and had observed certain violations. The invocation of the bank guarantees was therefore in terms of the conditions stipulated in the bank guarantees.
The invocation of the bank guarantees was the subject matter of the present appeal - Appeal allowed.
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2019 (7) TMI 1865 - ITAT LUCKNOW
Exemption u/s 11 - claim under the head ‘objects of general public utility’ OR under the head ‘preservation of environment’ - HELD THAT:- As following the judicial precedent in the case of the assessee itself [2019 (3) TMI 1920 - ITAT LUCKNOW] the activities being undertaken by the assessee are held to be charitable in nature. As regards the arguments of Learned D. R. that in earlier years the assessee had claimed exemption under the head ‘objects of general public utility’ whereas in the years under consideration the assessee had claimed exemption under the head ‘preservation of environment’ (including watersheds, forest and wildlife) we find that the specific clause would always prevail over the general clause. The amendment to section 2(15) was made with effect from 01/04/2009 whereby preservation of environment was included as a specific object u/s 2(15) of the Act and since the activities of the assessee fell in the specific category therefore, learned CIT(A) has rightly considered the same - Decided in favour of assessee.
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2019 (7) TMI 1864 - ITAT MUMBAI
Addition u/s 68 as unexplained cash credit - Bogus share application money received by the assessee - HELD THAT:- It is well settled that in order to discharge the onus u/s 68 of the, the assessee must prove the identity of the creditor, the capacity of the creditor to advance money; and the genuineness of transaction.
It is also well settled that after the assessee has adduced evidence to establish prima facie the aforesaid, the onus shifts to the department - assessee filed before the AO the relevant details and supporting documents with regard to issue of shares at a premium. A perusal of the assessment order clearly indicates that the AO without making any sort of inquiry has rejected the evidence filed by the assessee on the basis of conjectures and assumptions. Facts being so, we confirm the order of the Ld. CIT(A). Appeal filed by the revenue is dismissed.
Reopening of assessment u/s 147 - want of approval of satisfaction for re-opening the case from the competent authority as required u/s 151 - HELD THAT:- In the instant case, the return of income originally filed by the assessee on 30.09.2009 was processed u/s 143(1) of the Act -In the instant case, the AO has rightly issued notice u/s 148 for reopening the return of income processed u/s 143(1) of the Act. Accordingly we dismiss the cross-objection filed by the assessee.
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2019 (7) TMI 1863 - DELHI HIGH COURT
Correct Assessment year - HELD THAT:- As Revenue has placed before the Court an order [2013 (11) TMI 1785 - DELHI HIGH COURT] by this Court admitting the Revenue‟s appeal which is for the Assessment Year (AY) 2004-2005.
Issue notice to the Respondent. List on 26th September, 2019.
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2019 (7) TMI 1862 - CESTAT NEW DELHI
Valuation - inclusion of VAT subsidy amount for arriving at the assessable value - Section 4 of the Central Excise Act, 1944 - HELD THAT:- The issue is covered by the appellant own case [2018 (1) TMI 915 - CESTAT NEW DELHI] that there is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans.
Appeal allowed - decided in favor of appellant.
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2019 (7) TMI 1861 - AUTHORITY FOR ADVANCE RULINGS — MUMBAI BENCH (INCOME-TAX)
Income taxable in India - transfer of shares of the Indian subsidiary - capital gains on transfer of equity shares of wholly owned subsidiary IEE Pvt.Ltd. will be taxable in the hands of the applicant at the rate of 10 per cent. in accordance with section 112(1)(c)(iii) of the Income-tax Act, 1961 - applicant is an Australian company and has sold the entire shareholding in its wholly owned Indian subsidiary to an entity of APXL group - applicant was controlling the affairs of the Indian subsidiary through its key managerial personnel (KMP) - applicant contends that it is a tax resident of Australia and as per article 13(5) of the India-Australia Tax Treaty on "Alienation of property", the sale of equity shares of IEE Pvt. Ltd. may be taxed in India
HELD THAT:- Applicant is operating in India through wholly owned subsidiary (IEE Pvt. Ltd.) and on account of the world wide operations of applicant group, it has established supply agreements and the developed warehouse management, inventory control software and accounting system and the same practices were employed in running operations in India. It is also noticed that as part of business strategy the applicant group entered into strategic alliance with APXL group in 2006 (much before the impugned sale in 2012), sharing part of its supply chain and other practices. Along with the application what was submitted was share purchase agreement and clause 5.4 of the said agreement mentions that all strategic arrangements would cease with effect from the closing date of share purchase agreement. The Department's contention that the transaction is more than share transfer is thus not correct
Slump sale - Argument of the Revenue that it is a case of slump sale is not borne out by facts. All the assets and liabilities IEE Pvt. Ltd. remain with IEE Pvt. Ltd. after the transfer and what has changed is the shareholding pattern. Further a perusal of the share purchase agreement, clause 5.4 reveals that all strategic agreement will automatically stand terminated with effect from closing of the share purchase agreement.
Value of share of IEE Pvt. Ltd. is not ascertainable thus the fair market value of the capital assets on the date of transfer shall be deemed to be full value of the consideration received as per section 50D and also to ascertain the fair market value reference to valuation officer under section 55A is called for - The plea of the Department is not tenable as during the course of hearing the applicant has provided the valuation report prepared by BSR & Co. and the same was shared with the Department and their letter dated May 16, 2019 comments were also offered on the said valuation. The valuation report lists out various projections and assumptions and after employing the discounted cash flow method, the value of share was arrived at 5.34 AUD per share (₹ 372 per share). The actual share transfer has happened at ₹ 182 per share owing to hard bargaining by the buyer. Thus, the value of share was ascertained and pleas of the Department are rejected.
Difference between ascertained price and the actual sale price is income of buyer as per section 56(2)(viia) - The said argument is really not pertinent to the case of the applicant as it is the seller of the shares. The referred section affects the buyer and the Department is at liberty to proceed against the buyer on the differential between fair market value and actual sale price.
Substantial question raised in the application is answered in the affirmative, i. e., the capital gains on transfer of equity shares of IEE Pvt. Ltd. will be taxable in the hands of the applicant at the rate of 10 per cent. in accordance with section 112(1)(c)(iii) of the Income-tax Act, 1961.
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2019 (7) TMI 1860 - ITAT BANGALORE
Expenses claimed u/s 57 - various expenses incurred by the assessee viz., PMS charges, professional fees salary is integral to the investment activity undertaken by him and to earn the income returned in the return of income for the previous year - admission of additional evidence of assessee accepted - HELD THAT:- PMS charges - There is no mention about any investment in foreign securities in this PMS agreement. This is also seen that as per the balance sheet, the investment in Indian companies is only about securities and not any bank deposit, income of which is taxable. Hence on the entire investment of the assessee through PMS, the only income which can be earned is dividend income or capital gain and none of these two incomes is taxable under the head ‘Income from other sources’ and therefore, such expenses is not allowable u/s. 57(iii) of the IT Act. Hence, the additional evidence filed by the assessee is not rendering any help to assessee in the present case.
The second major head of expenses is Salary and bonus - the narrations given in the ledger account, the name of the employees is given and, there is no such detail as to what work is entrusted to these employees and whether the work entrusted to these employees is regarding earning of income taxable under the head ‘Income from other sources’. Hence, this expenditure on Salaries and bonus is not correlated by assessee with earning of income taxable under the head ‘Income from other sources’ and therefore, this expenditure of Salaries and bonus is also not allowable u/s. 57(iii) of the IT Act.
Professional charges - only detail available is this as to whom it was paid and for which period. There is no such detail available as to whether such professional charges is in respect of earning of income taxable under the head ‘Income from other sources’ and therefore, even after considering the additional evidence, these expenses of Professional charges also cannot be held to be allowable u/s. 57(iii).
Hence, it is held that these three expenses i.e. PMS charges, Salaries and bonus and Professional charges are not allowable u/s. 57(iii) of the IT Act and the remaining expenses is very small and less than the amount of expenses already allowed by the AO.- Decided against assessee.
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2019 (7) TMI 1859 - ITAT AHMEDABAD
Disallowance u/s 14A read with Rule 8D - assessee has debited interest expenses in the Profit & Loss Account and also made large investment on which he earned tax free income which is not forming a part of the total income - HELD THAT:- Since interest receipts are excess than the expenditure on interest there should not be any disallowance in Rule 14A of the Act in view of several judicial pronouncements including Safal Realty Pvt. Ltd.[2013 (11) TMI 1588 - ITAT AHMEDABAD] - It is also settled principal that disallowance cannot exceed the total expenditure claimed by the assessee. The appellant had incurred and claimed total expenditure of ₹ 32,235/- (₹ 2235 + 30,000). In that view of the ratio laid down by the judicial pronouncements as discussed above, the CIT(A) correctly restricted disallowance of ₹ 32,235/- being the total expenditure claimed by the assessee deleting the remaining addition of ₹ 8,60,278/-. - Decided against revenue.
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2019 (7) TMI 1858 - ITAT CHENNAI
Bogus LTCG - Exemption u/s 10(38) - assessee is involved in promoting the penny stock company - HELD THAT:- As not brought on record how the assessee is involved in promoting the penny stock company and how the assessee involved in inflating the shares of the company. Moreover, the copy of the investigation report said to be received from the Investigation Wing of the Department at Kolkata was not furnished to the assessee.
This Tribunal is of the considered opinion that the matter needs to be re-examined by the AO. Accordingly, orders of both the authorities below are set aside and the issue raised by the assessee with regard to deduction under Section 10(38) of the Act is remitted back to the file of the AO. AO shall examine the matter as directed by this Tribunal in the case of Kanhaiyalal & Sons [2019 (2) TMI 1640 - ITAT CHENNAI] and thereafter decide the issue afresh in accordance with law, after giving a reasonable opportunity to the assessee - Appeal filed by the assessee is allowed for statistical purposes
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2019 (7) TMI 1857 - ITAT MUMBAI
Adjustment from the actuarial valuation - assessment of life insurance business - HELD THAT:- We noted that this issue is squarely covered by the decision of ITAT in assessee’s own case [2017 (8) TMI 1644 - ITAT MUMBAI] - We have noted that the Tribunal is taking a consistent view in all the cases of life insurance business and allowing adjustment from surplus arrived at as per actuarial valuation while interpreting section 44 of the Act r.w. Rule -2 of the First Schedule along with the provisions of Insurance Act 1938, Insurance Regulatory and Development Authority Act 1999 and regulations there under. As the issue is squarely covered in favour of the assessee consistently, the Ld. CIT DR could not point out any distinguishing facts in the present case. Hence, we affirm the order of the CIT(A) and dismiss this issue of Revenue’s appeal.
Transfer between share holders account and policy holders account is tax neutral and not taxable u/s. 44 of the Act r.w. Rule-2 of the First Schedule - HELD THAT:- As decided in own case [2017 (8) TMI 1644 - ITAT MUMBAI] Tribunal has already concluded that transfer between share holders account and policy holders account is tax neutral and not taxable u/s. 44 of the Act r.w. Rule-2 of the First Schedule. It was the contention of the Revenue that the Revenue has not accepted the decision of the ITAT and further appeals have been filed before the Hon'ble High Court. We noted that it is an admitted position that this issue is squarely covered in favour of the assessee in assessee own case vide orders of the Tribunal, hence, are not interfering in the finding of CIT(A) allowing the claim of the assessee. Even before us, now also the Ld. DR could not distinguish the facts of the present case vis-à-vis the orders of the Tribunal in earlier years.
100% depreciation in respect of assets costing less than ₹ 20,000/- - HELD THAT:- As there is no dispute on facts, the claim of assessee is that it has been consistently following the policy of providing depreciation @ 100% on the value of assets costing less than ₹ 20,000/-. The contention of the assessee is that since computation of profits and gains of the business of assessee, being in the business of life insurance, is in accordance with the provisions of section 44 of the Act, which over rides section 28 to 43B of the Act are not applicable to the assessee for determining the income from life insurance business. We noted that this issue is now settled and Revenue could not point out any distinguishing facts from earlier years [2017 (8) TMI 1644 - ITAT MUMBAI] and [2018 (1) TMI 1585 - ITAT MUMBAI]. Hence, we confirm the order of the CIT(A) and dismiss this Ground of Revenue’s appeal.
Exemption u/s 10(34) in respect to dividend income - dividend income is considered as part of income of Insurance Business and is included as an 'income' by the actuary - HELD THAT:- We note that this issue has been consistently decided in favour of the assessee by allowing the claim of exemption on account of dividend u/s. 10(34) of the Act by the Tribunal in earlier years and hence, taking a consistent view, we confirm the order of CIT(A) and this issue of Revenue’s appeal is dismissed.
Addition u/s 14A r.w.r. 8D - disallowance of expenses relatable to exempt income - CIT(A) held that no disallowance is attracted u/s. 14A of the Act in assessee’s own case even if it is held that the assessee is entitled to claim u/s.10(34) of the Act in respect of dividend income -HELD THAT:- As noted that the Tribunal is consistently taking a view that no disallowance u/s.14A of the Act r.w. Rule 8D of the Rules can be made while computing a total income of the person engaged in the business of insurance whose profits and gains from insurance business is computed in terms of the provision of section 44 of the Act r.w. First Schedule of the Act. As the Tribunal is consistently taking a view on this issue, we confirm the order of CIT(A) and this common issue is allowed in favour of the assessee. Accordingly, this issue in the appeal of the Revenue is dismissed and that of assessee’s appeal is allowed.
Carry forward of losses as assessed under the head ‘income from other sources’ - HELD THAT:- This issue is covered in favour of the assessee by Co-ordinate Bench decision in assessee’s own case for assessment year 2008-09 [2018 (1) TMI 1585 - ITAT MUMBAI] wherein the Tribunal has allowed the carry forward of losses u/s. 72.
Assessment of income - surplus available in share holders account is to be assessed as income from other sources or an income from insurance business - rates specified u/s.115B - HELD THAT:- As decided in own case [2017 (8) TMI 1644 - ITAT MUMBAI] these grounds are held in favour of the appellant and the AO is directed to apply the tax rate of 12.5% as per the provisions of section 115B in respect of the surplus in SHA by treating the same as part of the profits and gains of Life Insurance business and in respect of the income assessed as Profits and gains of life insurance business.
Claim of deduction on account of decrease in negative reserve - HELD THAT:- As in case HDFC STANDARD LIFE INSURANCE COMPANY LTD. AND OTHER VERSUS DCIT (OSD) -1 (1) MUMBAI AND OTHERS [2013 (10) TMI 1072 - ITAT MUMBAI] allowed the claim of the assessee - CIT(A) only on this basis allowed the claim of assessee of negative reserve. Since the issue is covered in favour of the assessee in regard to actuarial valuation, we uphold the order of CIT(A). The issued raised by the assessee in regard to negative reserve has become academic and, hence, infructuous.
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2019 (7) TMI 1856 - GUJARAT HIGH COURT
Stay of demand - HELD THAT:- Draft amendment is allowed. The same shall be carried out at the earliest.
Let Notice be issued to the respondents returnable on 14th October, 2019.
Having heard Mr. S.N. Soparkar, the learned senior counsel appearing for the writ applicants and having gone through the materials on record, we are of the view that the writ applicants have been able to make out a strong prima facie case to have an interim order in their favour in terms of paragraph 7(d2). We accordingly grant such relief. Direct service is permitted.
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2019 (7) TMI 1855 - SUPREME COURT
Interpretation of statute - scope of "employee" Under Section 2(f) of the EPF Act - whether the women workers employed by the Respondent Company are covered by the definition of "employee" Under Section 2(f) of the EPF Act or not? - HELD THAT:- The definition of "employee" Under Section 2(f) of the EPF Act is an inclusive definition, and is widely worded to include any person engaged either directly or indirectly in connection with the work of an establishment - In the present case, the women workers employed by the Respondent Company were provided all the raw materials, such as the fabric, thread, buttons, etc. from the Respondent - Employer. With this material, the women workers were required to stitch the garments as per the specifications given by the Respondent Company. The women workers could stitch the garments at their homes, and provide them to the Respondent Company. The Respondent Company had the absolute right to reject the finished product i.e. the garments, in case of any defects.
The mere fact that the women workers stitched the garments at home, would make no difference. It is the admitted position that the women workers were paid wages directly by the Respondent Company on a per-piece basis for every garment stitched.
The issue in the present case is squarely covered by the decision of this Court in Silver Jubilee Tailoring House and Ors. v. Chief Inspector of Shops and Establishments and Ors. [1973 (9) TMI 100 - SUPREME COURT]. The Appellants therein were engaged in the business of producing garments. They employed workers who were provided with the cloth, and were instructed by the Appellants how to stitch it. The workers were paid on piece-rate basis. If a worker failed to stitch a garment as per the instructions, the Appellants rejected the work, and asked the worker to re-stitch the garment. This Court held that such workers fell within the definition of "person employed" Under Section 2(14) of the Andhra Pradesh (Telangana Area) Shops and Establishments Act, 1956.
In the present case, the women workers were certainly employed for wages in connection with the work of the Respondent Company. The definition of "employee" Under Section 2(f) is an inclusive definition, and includes workers who are engaged either directly or indirectly in connection with the work of the establishment, and are paid wages - In the present case, the women workers were directly engaged by the Management in connection with the work of the Respondent Company, which was set up as a ready-made garments industry in Marathwada. The women workers were paid wages on per-piece basis for the services rendered. Merely because the women workers were permitted to do the work off site, would not take away their status as employees of the Respondent Company.
The Order dated 19.04.1993 passed by the Appellant No. 1 is restored. The Respondent Company is directed to deposit the amount assessed by Appellant No. 1 towards Provident Fund dues of the women workers within 1 month from the date of this Judgment - appeal allowed.
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2019 (7) TMI 1854 - ANDHRA PRADESH HIGH COURT
Seizure Order passed without obtaining any authorization for the same from the Second Respondent - HELD THAT:- The respondents cannot now be heard to say that a second authorization was also given under Section 67(2) of the SGST Act as it was already held in Dekars Fires & Security Systems Pvt. Ltd. Hyd. Vs. The Deputy Commissioner (CT), Secunderabad Division, Hyderabad and others [2011 (7) TMI 1382 - ANDHRA PRADESH HIGH COURT] that the said contention of the Revenue does not inspire confidence and that the whole proceedings of seizure, dated 07.02.2018, and all further proceedings, including the show cause notice for confiscation of the goods are in violation of the provisions under Section 67(2) of the Act and that the order of seizure, dated 07.02.2018, does not satisfy the procedural safeguards prescribed in that behalf.
Following the said decision, it is held that the impugned seizure order, dated 07.02.2018, passed by first respondent is unconstitutional and violative of the provisions under Section 67 (2) of the SGST Act and that all the consequential orders are unsustainable under facts and law.
Petition allowed.
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2019 (7) TMI 1853 - ITAT, BANGALORE
Disallowance of the assessee's contribution to the Federation of Indian Mineral Industries (FIMI) - allowable revenue expenditure - HELD THAT:- Respectfully following the above cited decision of the ITAT - Delhi Bench in the case of Rio Tinto India Pvt. Ltd.,[2012 (6) TMI 688 - ITAT DELHI] we uphold the assessee's claim for the expense as contribution to FIMI to be allowed as revenue expenditure incurred in the course and for the purposes of the assessee's business and consequently delete the disallowance made by the AO in this regard. - Decided in favour of assessee.
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2019 (7) TMI 1852 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABAD
Seeking Liquidation of Corporate Debtor - Section 33(2), Section 34(1) & Section 60(5) Of Insolvency And Bankruptcy Code 2016, Read With Rule 11 Of National Company Law Tribunal Rules, 2016 - HELD THAT:- As Per Section 33(1) (a) of the Code if the Resolution Plan is not received under Section 30(6) with in CIRP period, the Tribunal has no other option but to pass a liquidation order. The Resolution Professional has not filed any ~ Resolution Plan before this Tribunal under Section 30(6) with in CIRP period and the Resolution Plan submitted by the M/s Santhoshimathaa Edible Oils Refinery Private Limited was rejected by the COC with 69% voting share. By relying on Section 33(1)(a) of the Code, the Resolution Professional having not submitted any Resolution Plan within CIRP period leads to passing an order of liquidation.
There are no other alternative other than passing an order of liquidation requiring the Corporate Debtor, namely M/s. Southern Online Bio Technologies Limited, to be liquidated in the manner laid down in Chapter 3 of Part 2 of the Insolvency and Bankruptcy Code, 2016.
As per Section 34(1) of the Code after passing order of liquidation of corporate Debtor the Resolution Professional appointed for CIRP Process should act as Liquidator for conducting Liquidation Process. Accordingly Mrs. G.Kalpana, is appointed as the Liquidator - application allowed.
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2019 (7) TMI 1851 - ITAT RAIPUR
Disallowance of exemption u/s 11 - assessee trust having been not registered u/s 12A - HELD THAT:- AO and the CIT(A) was not justified in taking a stand that registration u/s 12A was not applicable to the assessee for the assessment years under consideration and that the ratio laid down in the case of U.P. Forest Corporation vs. Dy. CIT [2007 (11) TMI 303 - SUPREME COURT] that registration of a trust u/s 12A is a condition precedent to claim of exemption u/s. 11 and 12 has been is not applicable to the peculiar facts of the case in view of the amendment to the s. 12A(2) by way of inserting proviso through Finance Act, 2014 with retrospective effect and therefore, in view of the statutory provisions and the legal propositions we do not approve finding of the CIT(A).
Without prejudice to above, even if the reopening is to be treated valid, then also, the learned CIT(A)/AO has not brought any material evidence on record from which it can be inferred that the objects and activities of the assessee trust for the earlier assessment years i.e.. 2008-09 and 2009-10 has been changed as compared the objects and activities of the subsequent assessment year i.e., 2010-11 onwards for which the AO has allowed the exemption u/s 11 to the assessee trust and in the present case there is no change in the objects and activities of the earlier and subsequent assessment years and further, there was no finding that the assessee has carried on any activity not in accordance with its objectives and therefore, in the absence of any finding of facts being given by the AO or the CIT(A), the exemption under s. 11 of the Act, cannot be denied as held by-apex Court in the case of SURAT CITY GYMKHANA [2008 (4) TMI 16 - SUPREME COURT] and SREE SREE RAMKRISHNA SAMITY [2015 (11) TMI 119 - ITAT KOLKATA]
CIT granted registration to the assessee trust before reopening of the assessment which was not disputed by the AO during the course of assessment proceedings and that it is also undisputed that the 'objects and activities', which are charitable in nature, remain unchanged. As such, the aforesaid proviso to s. 12A(2) is squarely applicable. Therefore, we reverse the order of the learned CIT(A) and Accordingly, the AO is directed to grant the benefit of ss. 11 and 12 to the assessee for the asst. yr 2008-09 and 2009-10. Thus, the grounds of appeal are allowed.
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2019 (7) TMI 1850 - MADRAS HIGH COURT
Validity of reopening of assessment u/s 147 - procedure to be followed pursuant to the issuance of notice - grounds raised grounds stating that the notice is barred by limitation as contemplated under Section 148 of the Act and that the reasons which are sought to be adduced, are of such of opinion, which is improper - HELD THAT:- When the Hon'ble Supreme Court in GKN Driveshafts (India) Ltd's case [2002 (11) TMI 7 - SUPREME COURT] had categorically clarified the procedure to be followed pursuant to the issuance of notice, which includes filing of returns and seeking for objections, it cannot be said that such a contention is opposed to the provisions of the Act and further submitted that the decision should not be followed is far-fetched. Since this Court has relied upon the decision of GKN Driveshafts (India) Ltd's case of the Hon'ble Supreme Court, which has a binding nature on this Court in view of Article 141 of the Constitution of India, I am not relying upon any of the other decisions cited by the learned counsels.
Writ Petitions stand closed with liberty to the petitioner either to file their returns or seek for reasons, if not already given. Such an exercise of raising their objections shall be done within a period of four weeks from the date of receipt of a copy of this order. In case, such objections are filed before the assessing officer, the same shall be considered in accordance with law and reasoned speaking orders shall be passed, as expeditiously as possible
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