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Showing 161 to 180 of 1469 Records
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2021 (7) TMI 1311
Seeking extension of CIRP period - HELD THAT:- It appears from record that assets of the Corporate Debtor attached by CBI and ED and they are not yet released. In such situation, we feel that CIRP cannot prolonged on such ground for indefinite period. This application stands disposed of.
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2021 (7) TMI 1310
Non-processing of application filed by the petitioners - Focus Product Scheme (FPS) - grievance of the petitioner is that 47 applications filed by it for issuance of scrip under the Focus Product Scheme have not been processed by the respondents - HELD THAT:- The Additional Director General of Foreign Trade (respondent no.3) may be directed to process the applications and take a final decision on such applications in accordance with law and upon granting an opportunity of hearing to the authorized officer of the petitioner, if not excluded by any express provision of law or by necessary implication, within one month from date of receipt of a copy of this order.
Petition disposed off.
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2021 (7) TMI 1309
Wilful Defaulter - Default in meeting payment/repayment obligations to the Bank, even though they had the capacity - diversion of funds - petitioners have siphoned off funds without using the same for the purpose of which funds were availed - HELD THAT:- A Writ Court cannot go into weigh the sufficiency of reasons given by an administrative or quasi judicial authority. What is seen, is whether there are some reasons, however small, in support of the findings. This is so as it is only a bank and the lender, given their special relations that can assess whether any default on the part of a borrower is wilful or not. A writ Court does not possess such expertise.
The writ petitioners have not been able to demonstrate as to how they have been prejudiced by any of the alleged acts or omissions on the part of the respondent. Assuming for the sake of argument that there is some infraction of procedure on the part of the bank (although the Court does not find any) it is now well settled that every infraction of the principle of natural justice would not ipso facto vitiate proceedings. The petitioner must be able to demonstrate clearly the prejudice suffered by the reason of such infraction. Hence even if one accepts the submission of Mr. Saha that there has been some minor infractions of natural justice or procedure, no prejudice appears to have been caused to the petitioners, by such infraction - Although not pressed in course of arguments it has been pleaded in the writ petition that the bank has instituted proceedings under Section 7 of the IBC, 2016. It is submitted that declaring the writ petitioners as Wilful Defaulters would deprive the petitioners of Rights under Section 32 A of the IBC. It is argued that the impugned orders under Master Circular, 2015 would entail penal consequence on the petitioners and are in derogation of the proceedings under and the provisions of the IBC, 2016.
The petitioners even otherwise are not entitled to benefit of Section 32A, since no resolution plan has been sanctioned as yet by the NCLT and even if a resolution plan was approved, the petitioners cannot avail the benefits of Section 32A for being promoters and consequently being persons in default under Section 32 A read with Section 2(60) of the Companies Act, 2013.
Clause 4.3 of the Master Circular states is that there is scope even under the exiting legislations to initiate criminal action against wilful defaulters depending upon the facts and circumstances of the case under the provisions of Sections 403 and 415 of the Penal Code, 1860 and the banks and financial institutions are strictly advised to seriously and promptly consider initiating criminal action based on the facts and circumstances of each case under the provisions of IPC. Thus, the Master Circular by itself does not have penal consequences, whereas Sections 403 and 415 IPC have penal consequences.
The writ petition must fail and is hereby dismissed.
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2021 (7) TMI 1308
TP Adjustment - benchmarking the international transactions - segments bifurcation - Software development services /ITES services - As per taxpayer he is engaged in two distinct activities i.e. CSDS and ITES services - HELD THAT:- All the facts substantiate the claim of the taxpayer that it has a full-fledged team of software development engineers to carry out its software development activities and they are carrying out software development activities independently. The taxpayer has also brought on record list of employees working in contracts of contract software development services /ITES services along with the monthly cost of each employee available of the convenience compilation.
When we examine this evidence in the light of the order passed by the AO/TPO in AYs 2010-11 & 2011-12, there is no change in the functional profile of the taxpayer company and likewise, there is no change in the international transactions as well as functions performed by the taxpayer. The TPO/DRP/Tribunal have reached the conclusion that because of paucity of evidence the taxpayer has failed to substantiate that it is carrying out activities in two segments viz. CSDS and ITES.
When Revenue has been accepting and benchmarking such international transactions in segregated manner in earlier years in taxpayer’s own case and there is no change in the nature of international transactions as well as functional profile of the taxpayer during the year under assessment vis-à-vis earlier assessment years, following the “rule of consistency” as has been held by Hon’ble Supreme Court in Radhaswami Satsang [1991 (11) TMI 2 - SUPREME COURT] we are of the considered view that both the segments viz. CSDS and ITES are required to be benchmarked independently/in segregated manner.
How to allocate certain common expenses incurred by the taxpayer in various segments for the purpose of calculation of the gross profit margin? - Keeping in view the evidence brought on record by the taxpayer and following the reasons rendered by Hon’ble High Court of Delhi in case of Fujitsu India Private Ltd. [2019 (2) TMI 1993 - DELHI HIGH COURT] we are of the considered view that ld. TPO should allocate common expenditure incurred by the taxpayer in two segments i.e. ITES & IT segment for the purpose of benchmarking the two separate transactions for calculation of the gross profit margin by applying the “head count” method.
In the first round of litigation, ld. TPO in this case had proceeded to benchmark international transactions qua CSDS and ITES segment by adopting aggregated approach. Now, as per our findings returned in the preceding paras, both the segments i.e. CSDS and ITES are required to be benchmarked independently. Ld. AR for the taxpayer as well as ld. DR for the Revenue have contended in one voice that the issue of benchmarking both the segments independently is required to be remanded back to the ld. TPO as the entire exercise of benchmarking international transactions are to be redone.
Since the issue of benchmarking the international transactions is required to be examined qua both the segments i.e. CSDS and ITES separately and independently for factual analysis of taxpayer’s TP study, the case is remanded back to ld. TPO who shall determine the ALP of international transactions of both the segments independently afresh after providing an opportunity of being heard to the parties. Consequently, the appeal filed by the taxpayer is allowed for statistical purposes.
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2021 (7) TMI 1307
Levy of penalty u/r 26 of Central Excise Rules, 2002 - presence of mens rea or not - penalty imposed upon the appellant for the reason that they were the employees of the Company and were responsible for handling the day to day activities/affairs - HELD THAT:- Commissioner has not established the element of “mens rea”, which is an essential ingredient for imposition of penalty under Rule 26 of the Central Excise Rules, 2002.
Since the impugned order fails to establish the ingredient of “mens rea” on the part of the Appellants who were otherwise performing their duties as employee of the company, the penalties cannot be imposed on the appellants in these two appeals - once the issue of the main company against whom the demand for duty was made under Section 11A of Central Excise Act, 1944, has been settled under SVLDRS, case for imposition of penalty under Rule 26 on the employees will fail. This exactly is prescribed by the scheme also. The only requirement is that person on whom penalty is imposed makes application under the scheme.
Appeal allowed.
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2021 (7) TMI 1306
Rectification u/s 254 - non maintainability of appeal on low tax effect - HELD THAT:- As noted that this bench had an occasion to deal with the common order [2021 (6) TMI 1065 - GUJARAT HIGH COURT] passed by the Income Tax Appellate Tribunal and the Court has dismissed the said petition by passing the detailed order.
In order to avoid duplication of the order, the present petition is dismissed in terms of the said order. This petition stands dismissed accordingly.
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2021 (7) TMI 1305
Classification of imported goods - HDMI digital media receiver paired with Alexa voice remote - Alexa Voice Remote Lite (1st Gen) and (2nd Gen) - subject devices proposed to be imported by the applicant are classifiable under Custom Tariff Item 8517 62 90? - benefit of Serial Number 20 of Notification No. 57/2017-Customs, dated 30-6-2017, as amended by Notification No. 3/2021-Customs, dated 1-2-2021 - HELD THAT:- Since the devices are proposed to be imported in the form of set, wherein prima facie, the two main constituents merit classification under two different sub-headings, the classification of the kit (comprising HDMI digital media receiver and Alexa Voice Remote) would be as per Rule 3(b) of GI Rules. Since the essential characteristics of kit is derived from the HDMI digital media receiver, which get attached to the HDMI port of the television, the classification of the kit would be as per the characteristics of this constituent.
HDMI Digital Media Receiver [Model Number S3L46N] is proposed to be classified by the applicant under sub-heading 8517 62 90 as a device that transmits/receives RF signals and converts it into a format readable by the system and transmits the same which is displayed on the screen - In support of classification under sub-heading 8528 71 00, it has been submitted that Fire TV Stick cannot support any other display device and can only be used for television. The applicant has accepted the fact that the device can work only with television.
Whether Fire TV Stick/HDMI Digital Media Receiver is essentially and substantially a reception apparatus for television, akin to a set top box; or is a device designed for and capable of functions beyond or different from reception of broadcast signals and conversion of the same into a signal suitable for display? - HELD THAT:- It is a reception apparatus with an inbuilt PCB and software containing many applications which run on Over the Internet (OTT) platform and media is streamed to television sets for display. These devices do not receive signals from satellite/cable/terrestrial to convert them in the form suitable for display on the television screen, thus not hit by the exclusions mentioned in the CTH 8528. Therefore, HDMI Digital Media Receiver [Model Number S3L46N] with Alexa Voice Remote Lite (1st Gen) [Model H69A73] as a kit; and HDMI Digital Media Receiver [Model Number S3L46N] with all-new Alexa Voice Remote (Alexa Voice Remote 2nd Gen) [Model No. L5B83H] as a kit are appropriately classifiable under sub-heading 8517 62, and more specifically sub-heading 8517 62 90.
The devices are principally remote controls working on radio frequency, with the difference that the second device i.e. Alexa Voice Remote (2nd Gen) is having one feature in addition to the features available in Alexa Voice Remote (1st Gen) and apart from working on radio frequency this additional feature makes the remote compatible with other devices and control such devices through infra-red frequency. Be that as it may, it is evident that the devices in question are radio (Bluetooth) remote control apparatus, which have specific sub-heading 8526 92 00. Further, with respect to Heading 8526, the HSN inter alia provides the following as general guidelines for inclusion : “Radio apparatus for the remote control of ships, pilotless aircraft, rockets, missiles, toys, model ships or aircraft, etc.” and “Radio apparatus for the detonation of mines, or for the remote control of machines”. Therefore, these two Alexa Voice Remote devices are classifiable under the sub-heading 8526 92 00 of the first schedule of the Customs Tariff Act.
Benefit of Serial No. 20 of Notification No. 57/2017-Customs, dated 30-6-2017 - HELD THAT:- It is seen that the benefit of Serial No. 20 of Notification No. 57/2017-Customs, dated 30-6-2017, as last amended vide Notification No. 3/2021-Customs, dated 1-2-2021, is available to all goods falling under sub-headings 8517 62 90 and 8517 69 90 other than certain goods mentioned under Serial No. 20 of the said notification and such excluded goods include Multiple Input/Multiple Output (MIMO) products etc. Therefore, the same is not admissible to Alexa Voice Remote Lite (1st Gen) and Alexa Voice Remote (2nd Gen), which are classifiable under sub-heading 8526 92 00.
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2021 (7) TMI 1304
Seeking grant of interim relief - HELD THAT:- This prayer shall be considered, only after the appearance of the Respondent - Ld. Counsel appearing for the Petitioner also wish to serve the Dasti notice upon the Respondent. Prayer is Allowed. He is directed to serve the Dasti notice upon the Respondent.
List the matter on 04.08.2021.
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2021 (7) TMI 1303
Seeking direction to Resolution Professional to verify, entertain and accept the claim of the Applicant - Resolution Professional Mr. Kashi Vishwanathan Sivaraman, not acting under the specific and mandatory regulations and guidelines of the Code - HELD THAT:- Considering the fact that no specific order on the claim submitted by the Applicant has been passed by the RP as yet, we direct the RP to consider the claim of the Applicant pending before him since long on merits and pass a specific order in accordance with the provision of Law.
Application disposed off.
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2021 (7) TMI 1302
Seeking grant of temporary bail - seeking release on temporary bail to join his family members in performing the last rites of his mother - HELD THAT:- It may be appropriate to take cautious cognizance of the developments in the intervening period, particularly, on account of passage of time, and consider the prayer to release the appellant on temporary bail, purely on humanitarian ground. In the prevailing social construct, the first death anniversary of an immediate family member has an element of religious, personal and emotional significance.
Admittedly, the appellant has not been able to participate in any of the rites/rituals in connection with the death of his mother. Viewed through this prism, the prayer of the appellant is not unjustifiable.
There is no reasonable ground to believe that the appellant may abscond. Nonetheless, appropriate conditions are imposed upon the appellant, an undertrial prisoner, to take care of the possible apprehension of the prosecuting agency. Likewise, charge-sheet has been lodged and the identity of the majority of witnesses is concealed. This takes care of the apprehension of tampering with evidence as well.
The appellant can be released on temporary bail with effect from 13th August 2021 to 21st August 2021, subject to conditions imposed - application allowed.
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2021 (7) TMI 1301
TP adjustment - comparable selection - HELD THAT:- Companies functionally dissimilar with that of assessee need to be deselected.
Value of domestic transaction for making adjustment instead of restricting the adjustment to the international transaction - Statutory provisions under chapter X of the Act mandates ALP to be determined only in respect of transactions with associated enterprises. Any adjustment which is in close of domestic transactions is uncalled for under this chapter. We accordingly direct the Ld. AO/TPO to restrict the adjustment if any that may be computed are wildly or giving effect to the order only in respect of the transactions that assessee had with its associated enterprises. Accordingly this ground raised by assessee stands allowed for statistical purposes.
Depreciation disallowed on computer peripherals at 60% - As AR submitted that DRP had directed the Ld.AO to grant depreciation at 60% on computer peripherals which has not been followed while passing the final assessment order. We thus direct the Ld. AO to comply with the directions of DRP in accordance with law.
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2021 (7) TMI 1300
Maintainability of application - initiation of CIRP - Threshold limit for initiation of CIRP - HELD THAT:- Admittedly, the amount due to be paid by the Corporate Debtor to the Operational is 13,46,278/- which is less than the threshold amount specified for triggering of the proceedings for Insolvency as per the Notification vide S.O 1205(E) dated 24.03.2020, by which, the threshold amount for initiation of Insolvency has increased from 1 lakh to 1 crore.
The present petition is dismissed as non maintainable.
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2021 (7) TMI 1299
Treating the assessee as a dummy/facilitator and/or an accommodation entry provider - Estimation of income - Acceptance of book results - re-computation of the total income from the business and other heads as in the return of income - HELD THAT:- Assessee in the course of the proceedings before the lower authorities had placed on record substantial documentary evidence which proved to the hilt the genuineness of the imports, purchases and sales that were made by him during the year under consideration i.e A.Y. 2011-12.
Now when the imports of the assessee had been physically cleared under the supervision of the Customs authority, therefore, there would be no justification in stamping the said transactions as bogus. Also, the fact that the majority sales of the assessee were to exporters of repute was a material fact that substantiated the genuineness of his business transactions which we find had been disregarded and brushed aside by the lower authorities.
As rightly observed by the CIT(A), the fact that the assessee’s books of accounts had been audited by a Chartered accountant further substantiates the genuineness and authenticity of his business transactions for the year in question. Also, the VAT paid by the assessee to the Maharasthra Sales Tax Authority qua the sales made to the various parties during the year under consideration instills confidence as regards the claim of the assessee of having carried out genuine business transactions during the year.
Standalone reason for treating the assessee as a dummy/facilitator and/or an accommodation entry provider is his statement that was recorded in the course of the post-survey proceedings i.e way back as on 23.01.2009, which had been acted upon by the A.O without placing on record any material that would otherwise support drawing of such adverse inferences in the hands of the assessee during the year under consideration before us.
Arbitrariness on the part of the A.O in treating the assessee as a dummy/facilitator and/or an accommodation entry provider during the year under consideration can safely be gathered from the fact that he had vide his respective orders passed u/s 143(3) for the succeeding years i.e A.Y 2012-13, A.Y 2013-14 and A.Y 2014-15 not drawn any such adverse inferences and had accepted that the assessee was carrying on actual/genuine business of imports/exports/trading in diamonds in the ordinary course of his business activities during the said respective years.
As a matter of fact, the only reasoning given by the A.O, for concluding as hereinabove, was the support that was drawn by him from the fact that in a like manner the A.O had framed the assessment in the case of the assessee for A.Y. 2010-11 and estimated his commission income qua the import/purchase/sale transactions, which had not been assailed by the assessee any further in appeal. Be that as it may, we are absolutely not at all inclined to accept the aforesaid reasoning given by the A.O for holding the assessee as a dummy/facilitator and/or an accommodation entry provider during the year under consideration.
A similar estimation of income made by the A.O in the case of the “sister concerns” of the assessee, viz. M/s Sunshine Import and Export Pvt. Ltd. and M/s Shine Star Impex Pvt. Ltd[2016 (9) TMI 1504 - ITAT MUMBAI] with a direction to the A.O to accept the “book results” of the aforesaid respective assessee’s further fortifies our aforesaid observations as regards the genuineness of the business activities of the assessee. In fact, the aforesaid order of the Tribunal in the case of the aforementioned “sister concerns” of the assessee had thereafter been upheld by the Hon”ble High Court of Bombay in Pr. CIT Vs. Sunshine Import and Export Pvt. Ltd.[2020 (3) TMI 554 - BOMBAY HIGH COURT]wherein the appeal filed by the revenue was dismissed. Accordingly, in the backdrop of our aforesaid observations, finding no infirmity in the very well reasoned and balanced view taken by the CIT(A), the present appeal filed by the revenue being absolutely bereft and devoid of any merit is dismissed.
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2021 (7) TMI 1298
Validity of assessment u/s 144C (3) - objections to draft assessment order were filed and the same were pending disposal with the DRP - HELD THAT:- Respondents states that in view of the facts of the present case, she has no objection if the present matter is remitted to the DRP.
The final assessment order dated 30th June, 2021 as well as the demand notice of ₹ 56,76,09,018/- (Rupees Fifty Six Crores Seventy Six Lakhs Nine Thousand and Eighteen only) issued under Section 156 of the Act for the assessment year 2017-18 is quashed and the matter is remitted to the DRP for consideration under Section 144(C) of the Act. Thereafter, the assessment order shall be passed in accordance with the procedure stipulated under Section 144B(1) (xxix) to (xxxi) as well as Section 144(C) of the Act.
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2021 (7) TMI 1297
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - payment could not be paid in stipulated time - HELD THAT:- Shri Nagpure was quick to respond that the pandemic was unknown when the decision in Charak Pharmaceuticals (supra) was rendered by the Supreme Court. However, in our view, nothing substantial turns on such response. It is indeed true that the scheme provided a one-time window for a party like the petitioner to avail the benefits envisaged therein. The statement of the Designated Committee is dated 31/1/2020. As per the terms of the scheme, the determined amount of ₹ 45,09,357/- was required to be paid by thirty days from 31/1/2020. The national lock-down because of COVID-19 was announced sometime on 23/3/2020.
The reason put forward by Shri Nagpure that the petitioner was disabled to pay the requisite amount because of the pandemic is, therefore, unsustainable. Even otherwise, considering the pandemic, there were further extensions – one till 31/3/2020 and then again till 30/6/2020. Such extensions must be treated to be actions taken to facilitate payment by the declarant, who had sought to avail of the benefits under the scheme. There being no extension beyond 30/6/2020, the writ court has no competence to add to or alter the terms of the scheme to enable the party, which had sought to avail the benefits of the scheme, to deposit the determined amount beyond the period as fixed by the respondent.
The writ jurisdiction cannot be invoked by a party for facilitating avoidance of obligations voluntarily incurred. The determined amount not having been paid by 30/6/2020, the statement has lapsed and cannot be given a fresh lease of life - Petition dismissed.
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2021 (7) TMI 1296
Maintainability of application - initiation of CIRP - Default on the part of Corporate Debtor in making repayment of its dues - the Adjudicating Authority arrived at a conclusion that there was no debt as claimed by the Appellant besides there being deficiency in service provided by the Appellant warranting dismissal of application - it was held by NCLAT that Once the liability in respect of ₹ 75 lakh was admitted and the same was not discharged by the Corporate Debtor, dispute in regard to quantum of debt would be immaterial at the stage of admission of application under Section 7 unless the debt due and payable falls below the minimum threshold limit prescribed under law.
HELD THAT:- There are no cogent reason to entertain the appeal - appeal dismissed.
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2021 (7) TMI 1295
Seeking a direction to admit the claim as a financial debt and not as an operational debt - Section 60(5) of the I&B Code, 2016 - HELD THAT:- There is no need to delve upon the rival submissions made in the instant IA.
Application dismissed.
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2021 (7) TMI 1294
Provisional attachment of properties - proceedings in respect of the provisional attachment order are still pending before the Karnataka High Court - HELD THAT:- In view of the appointment of an Official Liquidator she is no longer representing the company, seeks to contend that the shareholders have a vital interest in the outcome of the present petition and therefore, ought to be heard. However, when queried as to why, in light of the admitted position that the issue raised in the present petition flows out of the initial order dated 27.02.2017, proceedings in regard whereof are pending before the Karnataka High Court; the petitioner, as also the applicant, ought not to approach the same court. She prays for time to obtain instructions.
At request, list on 04.08.2021.
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2021 (7) TMI 1293
Seeking direction to Enforcement Directorate to release the interest and income accrued and receivable on the attached assets of the company - HELD THAT:- Shri Dhyan Chinnappa submitted that the background of the case before the Delhi High Court is, Devas had filed an application for release of seized amount and the same was rejected. The said order was challenged before the Delhi High Court. The Delhi High Court has stayed the proceedings before the adjudicating authority. Therefore, the said case has no bearing insofar as present writ petition is concerned. He is right in this submission.
In the circumstance, it would be appropriate to direct first respondent to release the interest and income accrued on the attached sum of Devas.
Petition allowed.
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2021 (7) TMI 1292
Acting as per Resolution plan or not - Resolution Plan provided that NCDs would be issued - whether instead of paying cash, NCDs could be issued? - HELD THAT:- Considering the exceptional facts of present matter the Impugned Order is stayed till the next date and status quo ante as before passing of the Impugned Order is directed to be maintained. Resolution Professional will continue to manage the Corporate Debtors as per provisions of IBC till the next date.
Respondents in both these Appeals to file Reply-Affidavits within two weeks. Rejoinder, if any, may be filed within a week, thereafter. Parties to file brief 'Written-Submissions' not more than three pages and 'Copies of Judgments' which they want to refer or rely on, within three weeks - List both these Appeals 'For Admission (After Notice)' hearing on 07th September, 2021.
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