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Showing 201 to 220 of 1843 Records
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2019 (11) TMI 1646
Seeking to submit TRAN-1 Form on the GSTN Portal in terms of Section 140 of the Central Goods and Services Tax Act, 2017 - in the alternative, seeking to permit the petitioner to submit TRAN-1 manually and to direct the respondents to consider TRAN-1 so filed and grant the credit - HELD THAT:- No material is placed before this Court to show that the petitioner has made an attempt to get its application processed. However, Sri S.Dwarakanath, learned counsel for the petitioner, submits that the petitioner has made an attempt but it could not succeed as it did not reach the portal. He further submits that now, the authorities are allowing them to make an application provided they show some proof, which according to them, cannot be produced after length of time more particularly, the screened shots - At this stage, learned Standing Counsel would submit that the time fixed for submitting Form GST TRAN-1 is extended up to 31.12.2019.
The arguments of the learned counsel for the petitioner cannot be brushed aside - this Writ Petition is disposed of in terms thereof directing the respondents to either open the portal to enable the petitioner to again file the Form GST TRAN-1 electronically or in the alternative, accept the Form GST TRAN-1 presented manually, on or before 31.12.2019 - Petition closed.
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2019 (11) TMI 1645
Levy of Stamp duty on Indentures - exigible to stamp duty under Article 36 of the Bombay Stamp Act, 1958 or not - respondent submitted that the Indentures were not a lease and were simply an agreement - respondent claims that indenture is Agreement to Lease and not Agreement for Lease - HELD THAT:- The covenant under which the interest is proposed to be transferred under the Indentures are set out. The first covenant records that for a period of four years commencing from the execution of the Indenture the Licensee has a license and authority to enter upon the said land for erecting a building or buildings. It is recorded that `until the grant of lease as provided hereinafter, the Licensee shall be deemed to be mere Licensee of the land at the same rent and subject to the same terms including the liability for payment of service charges ’. Covenant 2 is a negative covenant and proclaims that `Nothing in these presents contained shall be construed as a demise in law of the said land hereby agreed to be demised or any part thereof so as to give to the Licensee any legal interest therein until the lease hereby provided shall be executed and registered’.
The format of the Lease Deed required to be executed in terms of covenants 7 and 8 forms part of the Indenture and a perusal thereof would reveal that after the Town Planning Officer certifies that the buildings and the works have been erected in accordance with law, transfer of leasehold rights in favour of the writ petitioners in respect of the land in question as also the buildings erected thereon is to demise for a period of 60 years.
Tested on the anvil of the definition of a lease and a license in the Transfer of Property Act, 1882 and the Indian Easement Act, 1882, a perusal of the two Indentures would show that the respondent No.1 were given a right under the Indentures to occupy the parcel of land referred to in the two Indentures and after obtaining sanction from the competent authorities and the grantor to construct buildings and expressly recorded in the Indentures is that no interest would be treated as having been transferred to the respondent No.1 - The format of the lease has been agreed upon and forms part of the Indentures. Thus, the Indentures in question are a license and not a lease as per the definition of lease under the Transfer of Property Act and license under the Indian Easement Act.
We concur with the view taken by the learned Single Judge that the Indentures are a license and is not a lease. They envisage lease deeds to be executed upon the respondent No.1 complying with the obligations under the Indentures and reaching the stage where the right to have the lease executed is triggered - Appeals are dismissed.
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2019 (11) TMI 1644
TP Adjustment - comparable selection - HELD THAT:- We find merit in the prayer of the assessee to consider the companies, which are engaged in the similar line of business in the very same product, as comparable companies. It is the submission of the assessee that the comparables selected by TPO are engaged in different activities, though they are engaged in food processing only. The Ld A.R submitted that the assessee has already gathered annual reports of companies dealing in the very same product, i.e., gherkins dealt with by the assessee. Accordingly we are of the view that the issue relating to bench marking of international transactions requires fresh examination at the end of the AO/TPO by considering the fresh comparable companies.
Export incentives - whether they are part of operating income or not? - HELD THAT:- Issue been settled by Hon’ble Bombay High Court in the case of Welspun Zucchi Textiles Ltd [2017 (1) TMI 1037 - BOMBAY HIGH COURT]. Accordingly, we direct the AO/TPO to consider export incentives as part of operating income.
Whether the outstanding receivables due from AE is an international transaction or not? - HELD THAT:- Since we are restoring main issue to the file of AO/TPO, we restore this issue also to the file of AO/TPO for examining it afresh.
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2019 (11) TMI 1643
Validity of Arbitral award - validity of appointment of second arbitrator, when Tripartite Agreement has been dealt with by the earlier Arbitrator - HELD THAT:- Further proceedings before the learned Arbitrator (qua Tripartite Agreement dated 13.09.2010) shall remain stayed until further orders.
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2019 (11) TMI 1642
Seeking liquidation of the corporate debtor - Section 33 and 34 of the Insolvency and Bankruptcy Code, 2016 - It is submitted that compliance of various regulations was made by the Committee of Creditors in the 6th Meeting held on 15.10.2019. It was thereby pleaded that the requirements of Regulation 39B, 39C and 39D of the CIRP Regulation 2016 are satisfied in the present case - HELD THAT:- In view of the compliances made, we are satisfied that the corporate debtor-company is required to be liquidated and accordingly, we order for the same.
It is directed that all the directions/requirements and provisions of Chapter III of the Code and Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 (hereinafter referred to as ‘2016 Regulations’) shall be strictly complied with - The Liquidator shall publish public announcement in accordance with Regulation 12 of the 2016 Regulations and in Form B of Schedule II of these Regulations within five days from receipt of this order calling upon the stake holders to submit their claims as on liquidation commencement date and provide the last date for submission of claim which shall be 30 days from the liquidation commencement date.
Application disposed off.
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2019 (11) TMI 1641
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- It appeared from the records that the Corporate Debtor had sought several adjournments for settlement from 30.09.2019 to 28.11.2019.
The Financial Creditors wanted CIRP to be initiated against the corporate debtor without further delay. As there is a default in the payment of the financial debt, which has been agreed by the Corporate Debtor before this Bench, the present application filed by the financial Creditor is satisfying all the definitions of “Financial Creditor”, “Default” and “Financial Debt” and qualifies for filing an application under Insolvency and Bankruptcy Code.
The application filed on behalf of Financial Creditor is complete - Application admitted - moratorium declared.
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2019 (11) TMI 1640
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Existence of debt and dispute or not - HELD THAT:- It is evident that CIR process against the Horizon Concept Pvt. Ltd (HCPL) initiated by this Tribunal is in the matter of RICHA SATSANGI & ANR. VERSUS M/S HORIZON CONCEPT PVT. LTD. [2019 (10) TMI 1440 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI BENCH]. Clearly, the Financial Creditors in that Petition are different namely, Richa Satsangi & Anr. than the Financial Creditor in the current Petition. Further, the Financial Creditor in the current petition has given an undertaking that he has not submitted his claim with the IRP appointed in the case of M/s Horizon Concept Pvt. Ltd.
The Financial Creditor has established the default on the part of the Corporate Debtor in payment of the Financial Debt. The present Petition being complete and the amount of default being above ₹ 1,00,000, the Petition is admitted in terms of Section 7 (5) of the IBC and accordingly, moratorium is declared in terms of Section 14 of the Code - Petition admitted.
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2019 (11) TMI 1639
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Section 8 & 9 of the Insolvency & Bankruptcy Code - HELD THAT:- On 10.12.2018 the Petitioner issued Demand Notice demanding a sum of ₹ 21,26,160/- including interest @24% p.a. under Section 8 of the Code. The Demand Notice was returned with the remark “Left” on 14.12.2018. Subsequently the Petitioner was allowed to take out substituted services by publication in English and Marathi newspapers and affidavit of services to that effect was filed. However, the Corporate Debtor failed to appear before this Tribunal.
During the hearing of the petition on 11.11.2019 the Petitioner has produced the confirmation of balance by the Corporate Debtor wherein the liability is acknowledge by the Corporate Debtor. The Petitioner is enclosed the invoices which were raised wherein the Petitioner is entitled for interest @24% p.a. on the delay in payments. The above discussion clearly shows that there is a clear debt and default as such the Corporate Debtor is liable to pay the amount as claimed by the Petitioner.
This Bench having been satisfied with the petition filed by the Petitioner which is in compliance of provisions of Section 8 & 9 of the Insolvency & Bankruptcy Code admits this application declaring Moratorium with the directions - Petition admitted - moratorium declared.
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2019 (11) TMI 1638
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Section 8 & 9 of the Insolvency & Bankruptcy Code - HELD THAT:- On 10.12.2018 the Petitioner issued Demand Notice demanding a sum of ₹ 36,36,52,133/- including interest @24% p.a. under Section 8 of the Code. The Demand Notice was returned with the remark “not known”. Subsequently the Petitioner was allowed to take out substituted services by publication in English and Marathi newspapers and affidavit of services to that effect was filed. However, the Corporate Debtor failed to appear before this Tribunal.
During the hearing of the petition on 11.11.2019 the Petitioner has produced the confirmation of balance by the Corporate Debtor wherein the liability of ₹ 14,41,26,205/- is acknowledge by the Corporate Debtor. The Petitioner is enclosed the invoices which were raised wherein the Petitioner is entitled for interest @24% p.a. on the delay in payments. The above discussion clearly shows that there is a clear debt and default as such the Corporate Debtor is liable to pay the amount as claimed by the Petitioner.
This Bench having been satisfied with the petition filed by the Petitioner which is in compliance of provisions of Section 8 & 9 of the Insolvency & Bankruptcy Code admits this application declaring Moratorium with the directions - Petition admitted - moratorium declared.
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2019 (11) TMI 1637
Penalty u/s 271(1)(c) - addition of interest - mismatch of professional receipts as reflected in Form 26AS and as shown in Income Tax Return - penalty has been confirmed by the Ld. CIT(A) holding that if assessee’s case would not have come for scrutiny proceedings, the concealment would have remain undetected and it is difficult to believe that the Chartered Accountant who has carried out the audit u/s 44AB and filed the Income Tax Return could have committed mistake - HELD THAT:- Assessee is practicing corporate lawyer whose accounts are duly audited and entire computation of income and filing of Income Tax Return is handled by professional Chartered Accountant. As the professional fees which was reflected in Form 26AS but not in the Income Tax Return, then definitely it is a mistake on the part of the professional who has audited the accounts and filed the Income Tax Return. As been stated before the authorities that this amount was shown under the head ‘advances’ and same has been offered to tax in the subsequent year.
Though such a professional receipt has wrongly been reflected under the head advance when assessee is following cash system of accounting, but it cannot be held that there is any kind of concealment of income or furnishing of inaccurate particulars. Once, even before the scrutiny proceedings the assessee had offered the amount for tax on the same professional receipts in the subsequent year, then that goes to prove that assessee had not deliberately tried to conceal her income or furnish any inaccurate particulars. This amount has been reflected in the books of accounts and in the audit report though wrongly taken under the head ‘advances’.
It be held that assessee had concealed any income when entire income is through cheque and duly disclosed in the books and even tax has been paid in subsequent year when rates of taxes are same and there is no loss of revenue. Thus, penalty on such amount cannot be upheld. The same is directed to be deleted.
Addition on account of interest is mainly on the ground that assessee had shown the interest income net of TDS instead of gross amount - This again is a mistake of professional who has filed the income tax return. Such a mistake does not lead to any conclusion at assessee has deliberately concealed the income or not paid any taxes. On this addition also no penalty can be sustained. Accordingly the same is directed to delete.
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2019 (11) TMI 1636
Disallowance u/s 14A - as argued no dividend has been earned by the assessee during the years under assessment - HELD THAT:- Undisputedly, no dividend has been earned by the assessee during the years under assessment i.e. AYs 2009-10 & 2010-11. Ld. CIT(A) made disallowance in both the assessment years merely on the basis of presumption and assumptions that, “since the assessee’s main activity is investment, therefore, it cannot be denied that the funds has been utilized for investment activities.” When undisputedly no dividend income has been earned by the assessee during the year under assessment, no disallowance can be made.
As in the case of Cheminvest Limited vs. CIT [2015 (9) TMI 238 - DELHI HIGH COURT] has held that, “In the absence of exempt income, disallowance u/s 14A of any amount was not permissible.” So, we are of the considered view that since assessee has not earned any dividend income nor proved to have incurred any expenditure on the investment during the year under assessment, no disallowance can be made, hence disallowance - Decided in favour of assessee.
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2019 (11) TMI 1635
Prayer for adjournment - preventive detention not served - petitioner/detenue had been in custody in Central Jail, Visakhapatnam for a period of sixty days - HELD THAT:- This Court finds it strange that despite the petitioner/detenue being in custody for sixty days, the preventive detention order had not been served upon him.
The Joint Secretary, COFEPOSA, Ministry of Finance is directed to file a personal affidavit explaining the lapse, if any - List on 16th December, 2019.
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2019 (11) TMI 1634
Exemption from Property Tax - charitable trust - HELD THAT:- In view of the orders passed by this Court in respect of the hospitals run by the very same petitioner-Trust, at different places in Tamil Nadu, it is evident that the petitioner is entitled to get the very same benefit in respect of their hospitals being run at Coimbatore as well as Salem. The respondents are not justified in refusing to grant such relief to the petitioner simply by stating that the petitioner-Trust are rendering free services only to 65% and by collecting fee from the other people. The petitioner has already explained in detail as to how the nominal fee collected from the other people are being used to cover the expenses of medicines and implements as well as for building more and more hospitals.
The respondents are not in a position to explain and establish before this Court as to why the hospitals run by the very same petitioner-Trust covered in these writ petitions are to be treated differently to deny the benefit - writ petitions are allowed and the impugned orders are set aside. If any property tax is collected from the petitioner by the respondent-Corporation, the same shall be refunded to the petitioner, within a period of eight weeks from the date of receipt of a copy of this order - decided in favor of petitioner.
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2019 (11) TMI 1633
Addition u/s.35D by treating the amount as pre-operative expenses - HELD THAT:- DR was required to submit a report on the granting or otherwise of deduction of such expenses in the earlier years. A copy of the report from the AO has been placed on record by the ld. DR. As per this report, a deduction was claimed for the first time in the return for the A.Y. 2009-10 which was not granted, but the ld. CIT(A) accepted the assessee’s claim and the Revenue’s appeal has been dismissed, albeit on low tax effect. No assessment was taken up u/s. 143(3) of the Act for the A.Y. 2010-11, meaning thereby that the deduction got allowed.
From the above report of the AO, it is ostensible that the assessee has been consistently allowed deduction of ₹ 9.00 lakh in the assessments for the A.Ys 2009-10 and 2010-11. The assessment year 2011-12, under consideration, is a consecutive 3rd year in line. In view of the fact that the deduction for similar amounts has been allowed in the immediately two preceding assessment years, following the principle of consistency, hold the assessee to be entitled to deduction in the year under consideration as well. The impugned order is overturned on this score and the deduction is granted. - Decided in favour of assessee.
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2019 (11) TMI 1632
Jurisdiction of High Court under Article 227 of the Constitution of India for the matters that are decided under the Arbitration and Conciliation Act, 1996 - HELD THAT:- There is no doubt whatsoever that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. At the same time, we cannot forget that Article 227 is a constitutional provision which remains untouched by the non-obstante clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction.
If the Arbitration Act, 1940 was held to be a self-contained code, on matters pertaining to arbitration, the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lulcid expression of Tulzapurkar,J., that it carries with it “a negative import that only ‘such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done” - The legislative policy is that no revision lies if an alternative remedy of appeal is available. Further, even when a revision does lie, it lies only against a final disposal of the entire matter and not against interlocutory orders.
The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question.
Appeal allowed - decided in favor of appellant.
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2019 (11) TMI 1631
Condonation of delay in filing appeal - Whether the judgments passed by the honourable apex court as well as by this court on the issue of delay condonation are not binding on the Haryana Tax Tribunal? - HELD THAT:- In the present case, no ground for condonation of colossal delay of 560 days has been made out. The question regarding whether there is sufficient cause or not depends upon each case and primarily is a question of fact to be considered taking into totality of events which had taken place in a particular case. In the present case after appreciating the matter it cannot be said that there was sufficient cause for condonation of delay. The assessing authority had decided the matter and the order was communicated on September 17, 2007. The reason advanced for condonation of delay is that the matter relating to filing of appeal was under active consideration of the State Government and the office of Excise and Taxation Commissioner, Haryana ; the file kept shuttling between the offices of Excise and Taxation Commissioner, Haryana and Principal Secretary to the State Government because of the serious nature of the case and financial implications thereof.
Tribunal had also referred to section 33(6) of the HVAT Act which provide long limitation period of 180 days for the State to file an appeal. The Tribunal has also rightly observed that if the matter was of such a serious nature having huge financial implications for the State as alleged by it then the case should have been given the urgency and importance it deserved and the decision to file appeal should have been taken expeditiously even prior to the expiry of limitation period of 180 days which is otherwise also sufficiently a long period.
There are no ground to interfere in order passed by the Tribunal - appeal dismissed.
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2019 (11) TMI 1630
Addition of cash deposit with bank - onus to prove - case of the assessee was selected for scrutiny assessment as per CASS - HELD THAT:- Primary onus to prove genuineness of transaction is on the assessee. Before both the authorities below, the assessee tried to give some fallacious explanations, such as entry appearing in the bank statement was due to error committed by the bank officials; that the bank official suggested to reflect cash deposit and on the same day asked the assessee to issue two cheques worth ₹ 13.00 lakhs and ₹ 12.00 lakhs in order to neutralize the same, without actual physical movement of cash. These are bald statement to hoodwink the Revenue for evading taxes, without any iota of evidence. Even before me also, the assessee could not offer any explanation to justify the source deposits, what to talk of any cogent and convincing piece of evidence.
CIT(A) has recorded a finding that the appellant’s contention that he has not deposited the cash loan is contrary to the documents furnished by the bank, which clearly showed that cash ₹ 25 lakhs has been deposited on 09.10.2009 in the assessee’s saving bank account and on the same day, cash of ₹ 12 lakhs and ₹ 13.00 lakhs have been withdrawn vide cheque - Both these copies of the documents furnished by the bank to the Revenue have not been refuted by the assessee - Decided against assessee.
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2019 (11) TMI 1629
Penalty u/s 271(1)(c) - Non recording of specific reason - Defective notice u/s 274 - HELD THAT:- As perusal of the penalty order would indicate that the ld.AO has imposed penalty under section 271(1)(c) of the Act without recording any categorical finding, whether it is being imposed for concealment of income or furnishing inaccurate particulars of income - AO just in one-line held that penalty has been imposed “for concealing true particulars of income and furnishing inaccurate particulars of income.” Hon’ble Gujarat High Court in the case of Snita Transport P.Ltd. [2012 (12) TMI 981 - HIGH COURT OF GUJARAT]has propounded that the Assessing Officer ought to have recorded categorical finding for the breach for which he imposing penalty upon the assessee.
In the penalty order he cannot use both the expression. While issuing show cause notice under section 274 r.w.s. 271(1)(c) of the Act for inviting explanation of the assessee, as to why penalty under section 271(1)(c) of the Act be not imposed upon the assessee, can use expression “or” between furnishing inaccurate particulars vis-à-vis concealment of income. However, while adjudicating the issue regarding imposition of penalty, the ld.AO has to record a conclusive finding for which he is imposing the penalty, i.e. whether he is imposing penalty for furnishing inaccurate particulars of income or for concealment of income. The ld.AO cannot use phrase that “penalty is being imposed for furnishing inaccurate particulars/concealment of income”. Appeal of the assessee is allowed.
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2019 (11) TMI 1628
Direction to hand over the investigation to the customs authorities, along with the seized goods and trucks for further investigation - offences of fraud and forgery under the Indian Penal Code - Section 67 of the GST Acts - HELD THAT:- From the provisions of Section 67 of the AGST Act and 100 and 101 of the Customs Act, a process for search, seizure, confiscation etc for violating any of the provisions of the AGST Act or the Customs Act can only be initiated upon having reasons to believe by the proper or appropriate officer that a person concerned was involved in violation of any of the provisions of the GST Acts or the Customs Act - In the instant case, the documents made available on record so far as it relates to violation of the provisions of the AGST Act are not being relied upon by the respondents to indicate any such violation of the provisions of the AGST Act. What is contended is that some such documents are either fraudulent or it contains forged signatures resulting in offences under Sections 120(B)/420/467/471 of the IPC.
If the authorities under the AGST Act of the State of Assam are of the view that the appellants are required to be proceeded with or prosecuted under the AGST Act, it would be appropriate to invoke the provisions of Section 67 of the AGST Act and proceed accordingly. But without invoking the provisions of Section 67 of the AGST Act and following the procedure prescribed therein, it would be inappropriate to allow the police authorities of Assam to continue with the detention and the seizure of the trucks containing the areca nuts on the plea that the appellants have violated some or any of the provisions under the AGST Act.
The detained/seized goods be retained by the police authorities of Assam for a period of seven days from today. In the meantime, the GST authorities of the Government of Assam, the police authorities of the Government of Assam and the Customs authority of the Customs Department, Government of India shall take their respective decisions on how to proceed with the matter of the detained/seized trucks of areca nuts within the period of seven days - Petition disposed off.
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2019 (11) TMI 1627
Bogus LTCG - Addition u/s 68 - assessee investment in a 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. On identical circumstances, this Tribunal in the case of Kanhaiyalal & Sons (HUF) [2019 (2) TMI 1640 - ITAT CHENNAI] has remitted back the matter to the file of the Assessing Officer for reconsideration.
Thus , this Tribunal is of the considered opinion that the matter needs to be re-examined by the Assessing Officer. 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 Assessing Officer. The Assessing Officer shall examine the matter as directed by this Tribunal in the case of Kanhaiyalal & Sons (HUF) (supra) - Appeal filed by the assessee is allowed for statistical purposes.
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