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Showing 201 to 220 of 2184 Records
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2018 (5) TMI 1990
Operational Debt - default due - the Operational Creditor, after issuance of Demand Notice, has filed this Petition/Application, claiming outstanding amount of Debt, under provisions of the Code - HELD THAT:- It was duly served upon the debtor but the Debtor has not given reply to the Demand Notice u/s 8 within the time limit provided by the Act. However, the Debtor has filed the reply to this Petition/Application raising the question of Dispute - in this case the question of Dispute does not arises for the reasons viz. i) from the begining the Debtor has never said that the Fees of the Operational Creditor is not due, however there are number of occasions where the Debtor has itself acknowledged his liability; ii) he has not raised the question of dispute at the time of issuance of Demand Notice. The Debtor has filed reply to this Petition/ Application to delay the proceedings.
Thus, the Operational Creditor has rendered his professional services to the Debtor and raised valid invoices for the same but the Debtor has failed to make the payment. Hence, the Debt demanded is in the nature of "Operational Debt" as defined under section 5 (21) of the Definitions under The Code. And there is a "Default" as defined under section 3 (12) of The Code on the part of the Corporate Debtor - as the Operational Creditor had not received the outstanding Debt from the Debtor and that the formalities as prescribed under The Code have been completed by the Petitioner/Applicant, it is my conscientious view that this Petition deserves 'Admission'.
Petition admitted.
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2018 (5) TMI 1989
Acquittal of accused - framing of charges - vicarious liability of the Accused Under Section 149 - It is the grievance of the Appellant that in spite of the gravity of the offence and the evidence of the 5 injured witnesses, most of the Accused went scot free without any punishment and, hence, this appeal - HELD THAT:- There is a failure of justice in the case on hand looked at from the point of view of either the victims or even from the point of view of the convicted Accused. The most normal consequence thereafter should have been to order a fresh trial, but such a course of action after a lapse of 26 years of the occurrence of the crime, in our opinion, would not serve any useful purpose because as already indicated some of the Accused have died in the interregnum. We are not sure of the availability of the witnesses at this point of time. Even if all the witnesses are available, how safe it would be to record their evidence after a quarter century and place reliance on the same for coming to a gist conclusion regarding the culpability of the Accused?
This is a classic illustration of how the State failed in its primary constitutional responsibility of maintaining law and order by its ineffectiveness in the enforcement of criminal law. In our opinion, the reasons for such failure are many. Some of them are-(i) inefficiency arising out of either incompetence or lack of proper training in the system of criminal investigation; (ii) corruption or political interference with the investigation of crime; (iii) less than the desirable levels of efficiency of the public prosecutors to correctly advise and guide the investigating agencies contributing to the failure of the proper enforcement of criminal law; and (iv) inadequate efficiency levels of the bar and the members of the Judiciary (an offshoot of the bar) which contributed to the overall decline in the efficiency in the dispensation of criminal justice system - Over a period of time lot of irrelevant and unwarranted considerations have crept into the selection and appointment process of Public Prosecutors all over the country. If in a case like the one on hand where three people were killed and more than five people were injured, if charges are not framed in accordance with the mandate of law, the blame must be squarely taken by both the bar and the bench. Another distressing feature of the record in this case is the humungous cross examination of the witnesses by the defense which mostly is uncalled for.
Appeal disposed off.
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2018 (5) TMI 1988
Nature of expenses - repairs and maintenance expenses - revenue or capital expenditure - HELD THAT:- CIT(A) observed that expenditure has been incurred in relation to fabrication and erection in form of new asset and laying new pipe line and structure for maintaining the Jetty in working condition, therefore such fabrication expenditure mean something which is fabricated or manufactured. The assessee himself has used the "word fabrication" then it cannot be said that fabrication was done of any existing assets.
As a result of fabrication new asset will come into existence, hence, the expenditure incurred on such account would be in capital in nature giving rise to enduring benefit as held by Hon'ble Supreme Court in the case of Ballimal Naval Kishor Vs. CIT 1997 (1) TMI 3 - SUPREME COURT] wherein it has been emphasized that the expenditure under head repairs and maintenance within the purview of capital expenditure were the expenditure incurred gives enduring benefit - CIT(A) has correctly upheld the addition to the extent of expenditure after allowing depreciation thereon in accordance with law. - Decided against assessee
Depreciation of Electrical Installation - @ 10% OR 15% - HELD THAT:- As decided in ow case [2017 (11) TMI 1700 - ITAT AHMEDABAD] assessee is eligible for depreciation @15% instead of 10% allowed by the AO in respect of Jetty & Trestle, accordingly the Assessing Officer is directed to allow deduction of depreciation claimed @15% out of 10%. This ground of appeal is therefore allowed.
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2018 (5) TMI 1987
Rate of tax on imported goods - enhancement in the rate - relevant date of bill of entry - delay in the process of making good certain corrections, in the name of the supplier in the bills of entry - HELD THAT:- Since the appellant has filed the necessary declaration with EDI system on 6-7-2009 at 16:20 hrs, we are of the view that the date of filing of bill of entry as per Section 15(1) of the Customs Act is to be taken as 6-7-2009. Even though, it is a fact that actually the bill of entry was generated on 8-7-2009, the benefit of date of filing as on 6-7-2009 is required to be extended to the appellant since the delay in generation of bill of entry is on account of the fact that the EDI system was closed for updating the budget changes.
The appeal is allowed with direction to the lower authorities to reassess the bill of entry with the benefit of reduction of CVD as applicable on 6-7-2009.
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2018 (5) TMI 1986
Classification of imported goods - readymade garments - whether classified under CTH 6201 99 90 or under CTH 6204 33 00? - HELD THAT:- In the instant case, sample was drawn after 2½ years and it was observed that the appellant has wrongly classified the goods but fact remains that by the time the goods became obsolete. At the time of clearance of the goods department has accepted the classification. From the record, it appears that for misdeclaration, department has not brought any evidence on record and declaration was made after 2½ years which is not justifiable.
Impugned order need not be interfered - appeal dismissed - decided against Revenue.
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2018 (5) TMI 1985
Penalty U/s 271(1)(c) - undisclosed business carried out in the name and style of M/s Jharkhand Electric & Electronics, which has not been disclosed in the return of income - AO worked out the turnover and estimated the NP rate at 5% against 4.11% declared by the assessee and made addition - HELD THAT:- A clear case where the assessee has failed to report the business receipts in respect of her regular business activities while filing her return of income and subsequently, when the matter was selected for scrutiny, she has come forward and submitted the details of its trading and profit/loss account. The explanation of the assessee in not reporting the said business receipts in her original return of income by merely stating that the same was inadvertently not reported doesn't inspire any confidence in us. Hence, the levy of penalty on such unreported business receipts under section 271(1)(c) is hereby confirmed.
Penalty u/s 271A - non-maintenance of books of accounts - HELD THAT:- As the assessee was having turnover exceeding ₹ 60 lacs during the year under consideration, the provisions of Section 44AA of the Act are clearly applicable and the assessee was liable to maintain her books of account. Nothing has been brought on record which demonstrates any reasonable cause on part of the assessee in non- maintenance of her books of accounts. Therefore, we confirm the action of the AO in levying penalty under section 271A and the ground of appeal is hereby dismissed.
Penalty U/s 271B - not getting the books of account audited - HELD THAT:- Once the penalty has been levied for non-maintenance of books of accounts, there cannot be penalty again for non-audit of books of accounts which were not kept at first place. It is clearly a case of impossibility of performance where it is expected that the assessee should get her books of accounts audited when it is a known and admitted fact that there are no regular books of accounts which have been maintained at first place. Our view is fortified by the decision of SURAJMAL PARSURAM TODI [1996 (8) TMI 102 - GAUHATI HIGH COURT]wherein it was held that when a person commits an offence by not maintaining the books of accounts as contemplated under section 44AA, the offence is complete and after that, there can be no possibility of any offence as contemplated under section 44AB and therefore, the imposition of penalty under section 271A is erroneous. In the result, the levy of penalty under section 271B is hereby deleted.
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2018 (5) TMI 1984
Penalty u/s 272A(2)(k) - delay in filing the TDS statement - HELD THAT:- As decided in GULAM MUSTAFA KHAN VERSUS ADDITIONAL COMMISSIONER INCOME TAX THANE [2017 (4) TMI 1492 - ITAT MUMBAI]Assessee has deposited the TDS with interest as applicable from time to time. We find some strength in the arguments of the Ld. AR that assessee was an individual working in the unorganized sector and therefore, not fully conversant with the complex TDS provisions and had to depend upon some experts to comply with these provisions as TDS provisions certainly require certain higher degree of understanding of TDS provisions and manner of compliances thereof.
TDS compliances have undergone frequent changes over the last decade in terms of deduction, deposit, e-filing of TDS returns and generation of TDS certificates etc. Therefore, without delving much deeper into the issue on merit, we are inclined to delete the said penalty on the facts and circumstances of the case and accordingly, allow assessee’s appeal.
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2018 (5) TMI 1983
Time Limitation - demand of excise duty alongwith interest and penalty - HELD THAT:- The learned Assistant Solicitor General of India states that a decision has already been taken by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs vide Circular No.1063/2/2018-CX dated 16.2.2018 that extended period would not be available to the department to raise the demand.
Appeals disposed off with a direction that the assessing authority will examine and decide the cases remanded to it on merit without applying the extended period of limitation as provided under Section 11A of the Central Excise Act, 1944.
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2018 (5) TMI 1982
Admissibility of appeal - HELD THAT:- The questions arise for considerations of this appeal are:
i) Whether the Resolution Applicant, who submitted ‘Resolution Plan’ within time can be held to be ineligible due to subsequent enactment of Section 29A of Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as ‘I&B Code’)? and
ii) In the facts and circumstances of a case, if the Adjudicating Authority delays to take up a Resolution Plan, for one or other reason, whether such period should be excluded for the purpose of counting the total period of 180 or 270 days.?
Post the appeal ‘for admission’ on 18th May, 2018.
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2018 (5) TMI 1981
Interrogation of the party summoned - petitioner has invoked the writ jurisdiction of this Court seeking direction upon the respondents to allow him to appear along with the counsel only during the office hours, not to harass him and to force him to give statement in the manner the department wants - HELD THAT:- It is settled that no person can deny interrogation or putting questions to him during enquiry on the summons being issued to him. The person served with summons has to answer the questions put to him faithfully though he cannot be compelled to answer questions which are confusing and to which he cannot reply due to memory loss. The interrogation has to be made during the office hours and that in order to safeguard the person from ill treatment or use of third degree measure the presence of his Advocate may be permitted who may remain at a safe distance from where he may not listen to the questions and answers but may see the party.
Since the petitioner has not appeared before the Superintendent, Office of the Chief Commissioner, Central Goods and Services Tax Commissionerate, Meerut now he is directed to present himself on 30th May, 2018 or on any other date which may be informed to him by the aforesaid Officer on his appearance on 30th May, 2018.
Petition disposed off.
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2018 (5) TMI 1980
Validity of impugned order - Clandestine removal - HELD THAT:- The matter needs remand before CESTAT for the reason impugned order is cryptic and does not note the relevant facts which are to be considered and thereafter finding returned on the subject whether there was a clandestine removal of fabrics by the appellant.
Appeal restored for fresh decision.
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2018 (5) TMI 1979
Claim of deduction otherwise than by a revised return - Grounds raised before the appellate authority for the first time without raising the same before the AO by filing the revised return of income during the assessment proceedings - Characterization of income - subsidy received by way of sales tax remission under the West Bengal Incentive Scheme 1999 for setting up an industrial unit - revenue or capital receipt - HELD THAT:- Hon’ble Supreme Court in National Thermal Power Co.Ltd. vs CIT [1996 (12) TMI 7 - SUPREME COURT] , Jute Corporation of India [1990 (9) TMI 6 - SUPREME COURT] both passed by the Hon’ble Supreme Court as well as order passed by the Hon’ble Calcutta High Court in the case of Mayank Poddar HUF [2003 (2) TMI 45 - CALCUTTA HIGH COURT] held in favour of the assessee by observing that if in law the assessee was not liable to be assessed on capital gains arising on transfer of agricultural land then the assessee’s claim for its non assessability cannot be denied merely because in the return filed the assessee had mistakenly offered to pay tax on such income - CIT(A) has rightly exercised his jurisdiction in entertaining the additional grounds of exclusion of capital subsidy received by way of sales tax remission under the West Bengal Incentive Scheme 1999 during the year under consideration.
Sales tax subsidy received by the assessee from West Bengal Government was in the nature of capital receipt and therefore not liable to tax under the deeming provisions of section 115JB of the Act.
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2018 (5) TMI 1978
Late filing fee under section 234E - delay in filing of the return and, accordingly, demand notices were issued u/s. 200A - scope of amendment in Section 200A - Held that:- Only after 01.06.2015, the AO can levy fee under section 234E of the Act while processing the statement under section 200A of the Act and not before. Therefore, respectfully relying the order of the Hon'ble Karnataka High Court in Fatehraj Singhvi v. Union of India [2016 (9) TMI 964 - KARNATAKA HIGH COURT] the impugned intimation of the lower authorities levying fee under section 234E of the Act cannot be sustained in law. Accordingly the intimation under section 200A as confirmed by the Ld. CIT(A) in so far as levy of fee under section 234E is set aside and fee levied u/s 243E in all the appeals are ordered to be deleted. - Decided in favour of assessee
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2018 (5) TMI 1977
Profit from sale of shares - assessee had shown long term and short term capital gains on sale of shares, which were earlier, held as stock-in-trade - HELD THAT:- Issue is squarely covered by the decision of the Tribunal in assessee’s own case for the A.Y.2004-05 thus we do not find any infirmity in the order of CIT(A) for directing the AO to treat the profit arising out of sale on shares as capital gains.
Business income u/s.41(l) - difference between the book value of shares held as stock-in-trade as on 31.03.2002 and the cost thereof at which the same were converted into investments on 1.4.2002 - CIT(A) bringing to tax net the benefit taken by the assessee in earlier years at the time of conversion of stock in trade into investment - HELD THAT:- As on 31/03/2002, assessee had shown stock in shares at market or cost, whichever is lower, thereafter, assessee converted the stock of shares into investment. As and when assessee has treated the shares as stock in trade, the benefit of lower of cost or market price was taken, accordingly, profit of that year was reduced. During the year under consideration when the assessee had sold those shares, the excess over the cost price is liable to be taxed as capital gain / loss. However, the benefit already taken by the assessee by valuing these shares at cost or market whichever is lower in the earlier years when shares were treated as stock in trade is liable to be assessed as business income and CIT(A) had correctly brought the difference to tax net u/s.41(1) of the IT Act. The case law relied on by learned AR is distinguishable on facts, accordingly, we confirm the action of CIT(A).
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2018 (5) TMI 1976
Rectification of Mistake - error apparent on the face of the record - HELD THAT:- The decision of this Tribunal [ 2018 (1) TMI 105 - CESTAT BANGALORE ] dated 11-12-2017 which was passed relying upon the Final Order No. 20925/2016, dated 6-10-2016 whereas the issue involved in the present appeal is not the same as was involved in the final order relied upon by the Tribunal to dipose of the present appeal. According to us, this is an error apparent on the face of the record as the issue involved is altogether different and the decision rendered by this Tribunal dated 11-12-2017 is on a different issue.
In the interest of justice, the order dated 11-12-2017 needs to [be] recalled - Appeal restored to its original number.
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2018 (5) TMI 1975
Addition u/s 68 - Non consideration of evidences submitted by assessee - HELD THAT:- FAA has passed the exparte order without properly considered the submissions of the assessee. Assessee has filed all the necessary documentary evidences for substantiating its claim in dispute before the lower authorities, but the Ld. CIT(A) has not considered the same.
Assessee has also certified that the above evidences/ documents were on record of the Ld. CIT(A) & AO, but the Ld. CIT(A) has not considered the same in a proper manner, which in my considered opinion, are very essential to be considered and needs to be examined by the Ld. CIT(A).
Issues in dispute are remitted back to the file of Ld. CIT(A) to decide the issues in dispute afresh, after considering all the evidences as discussed above and give adequate opportunity of being heard to the assessee for substantiating its claim. The Assessee is also directed to submit all the documents / evidences before the Ld. CIT(A) in order to substantiate its claim and did not take any unnecessary adjournment and fully cooperate with the Ld. CIT(A) in the proceedings for the speedy disposal of the matter. - Assessee’s Appeal is allowed for statistical purposes.
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2018 (5) TMI 1974
Classification of imported goods - Diluent Solvent Mineral Oil (high boiling range) - Diluent Solvent Mineral Oil (low boiling range) - whether classified under Tariff Item No. 2901 10 00 or not? - HELD THAT:- The said CTH is applicable to “Acyclic Hydro Carbon”. The lower authorities have denied such classification by taking the view that in the absence of test report regarding the exact nature of the imported goods, these goods are required to be classified on the basis of their nature i.e. “Mineral Oil”. Since Mineral Oils are classified under Chapter 27 we find no reason to interfere with the finding of the lower authorities, classifying these two items under CTH 2713 90.
Low Track Varnish Offset - High Track Varnish Offset - whether classified under Tariff No. 3907 50 00 or not? - HELD THAT:- The appellant’s claim of classification under CTH 3907 as “Alkyd Resins” was not found favour with the lower authorities. He has held that in the absence of specific chemical test report identifying the nature of the chemical contained in the imported chemicals, the classification is to be made under the general head i.e. CTH 3209 which is applicable to “Varnish”.
Appeal dismissed - decided against appellant.
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2018 (5) TMI 1973
Condonation of delay of around 285 days in filing the present appeals - service of order - delay were on the ground that impugned order has not been received by them - HELD THAT:- The order has not been received by them and infact it is their stand that same has not been received till date and they have procured a copy of the order from the advocate of other assessee - the delay is condoned.
It is further seen that impugned order already stands set aside by the Tribunal in SHRI VK BHURARIA, M/S. VK ENTERPRISES, M/S. MULTIMETALS LTD. SHRI NITIN AGARWAL, SHRI MAHENDRA AMBALAL RANA M/S. MARUTI METAL INDUSTRIES SHRI SHRI SHRI AMIT GUPTA M/S. BRILLIANT METALS PVT. LTD., M/S. PROGRESSIVE ALLOYS INDIA P LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE RESPONDENT & ST, UDAIPUR [2018 (5) TMI 818 - CESTAT NEW DELHI] - While dealing with the appeals of other appellants who are similarly situate to the present two appeals, the tribunal held that Revenue’s case is not sustainable.
COD application allowed.
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2018 (5) TMI 1972
TP Adjustment - controlled transaction - ALP of intra group services received by one of the associated enterprises - TP approach relating to payment of management fees - appropriate/logical allocation of cost to ATK affiliates for management support and cost allocated to ATK India - HELD THAT:- As held by various courts that it is not for the revenue authorities to dictate to the assessee as to how he should conduct his business and it is not for them to tell the assessee as to what expenditure the assessee can incur. The question whether decision was commercially sound or not is not relevant.
The Hon'ble High Court in the judgment cited as EKL Appliances [2012 (4) TMI 346 - DELHI HIGH COURT] has held that the assessee was not required to show that any expenditure incurred by him for the purpose of business carried on by him has actually resulted in profit or income either in the same year or in the subsequent years.
In the case of Cotton Naturals India [2015 (3) TMI 1031 - DELHI HIGH COURT] of its order has held that “Chapter X and Transfer Pricing rules do not permit the Revenue authorities to step into the shoes of the assessee and decide whether or not a transaction should have been entered. It is for the assessee to take commercial decisions and decide how to conduct and carry on its business.”
It is incorrect to say that the assessee has not provided appropriate/logical allocation of cost to ATK affiliates for management support and cost allocated to ATK India.
Allegation relating to the payment for duplicate services is concerned, it appears that lower authorities have confused ATKBO with another group entity ATK India Pvt. Ltd which is a separate entity whose financial/TP study are placed on our record for the year under consideration. Detailed cost allocation sheets showing different personnel involved for each service has been placed on record separately. We find that the revenue authorities have simply rubbished the email evidences brought on record without examining and pointing out defects in the evidences. It is not proper for the lower authorities to disregard such direct evidences.
Payment relating to management services provided by ATK Australia is concerned, we find that the same has been dismissed by lower authorities on flimsy grounds. Allocation in respect of services provided by Shri John Yoshimura Regional head of offices is on the basis of time spent by him in relation to ATKBO. In our considered opinion, this allocation is logical and sound on the facts of the case. There are email evidences wherein it has been mentioned that Shri John Yoshimura was responsible for advising on various performances/review of Indian partners.
Considering the cost allocation chart exhibited elsewhere supported by evidences placed as exhibits in the paper book, we do not find any merit in the transfer pricing adjustments made by DRP/TP/Assessing Officer on this count and the same is directed to be deleted.
Adjustment made on the interest received from 8.46% to 17.26% which was reduced by the DRP to 13.38% - HELD THAT:- This relates to the interest received by the assessee from ATK Finance Ltd on which the assessee received interest @ 8.46%.
The assessee has bench marked receipt of interest using internal CUP by pointing out that the loan received by ATK Group from unrelated party i.e. the bank. This was dismissed by DRP which was of the opinion that the lender has negotiated rate of interest to be charged not on credit rate of ATK Finance alone but conjointly with parent company ATK UK. DRP further observed that the credit rating of ATK Finance cannot be sole guiding factor. DRP was of the view that the interest rate equal to prime lending rate of RBI during the year under consideration should be applied and accordingly direct the TPO.
We find that the assessee has earned interest on fixed deposits @ 7.56%. In our considered opinion, since the assessee has received interest from its AE in France, applying prime lending rate of RBI is not proper In any case, since the assessee is receiving interest on FD @ 7.56%, interest received from AE @ 8.46% can be considered at ALP. Therefore, no TP adjustment is called for. We direct accordingly.
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2018 (5) TMI 1971
Entitlement to deduction u/s 80-IC - whether an “undertaking or an enterprise” (Unit) established after 7th January, 2003, carrying out “substantial expansion” within the specified window period, i.e. between 7.1.2003 and 1.4.2012, would be entitled to deduction on profits @ 100%, under Section 80-IC? - HELD THAT:- Undisputedly, issues involved in the present appeals already stand adjudicated by this Court in Stovekraft India v. CIT [2017 (12) TMI 69 - HIMACHAL PRADESH HIGH COURT]
As such, making the directions in Stovekraft India (supra) applicable mutatis mutandis, also to the present appeals, the same are disposed of.
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9911796707
