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Showing 201 to 220 of 1733 Records
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2019 (6) TMI 1535
Classification of services - Rent-a-Cab service or not - renting of buses to ONGC for transportation of staff by the appellant who is Gujarat State Road Transport Corporation - HELD THAT:- The appellant, as a State Transport Corporation has rented out buses to ONGC - Issue decided in the case of Bangalore Metropolitan Transport [2015 (2) TMI 148 - SC ORDER], wherein the service provider is a Government Transport Corporation and have provided buses on rent to the factories. The Hon’ble Supreme Court held that a State Transport Corporation cannot be treated as Rent-a-Cab operator.
Demand set aside - appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1534
CENVAT Credit - input services - Insurance Premium paid by banks to Deposit Insurance Credit Guarantee Corporation - difference of opinion - HELD THAT:- There is a need for bringing constituency in the matter in dispute by way of constitution of a Larger Bench. Hon’ble President, CESTAT is requested to constitute a Larger Bench which may bring clarity to the following points of law :
(i) Whether insurance premium paid by the Banking Institutions to DICGC to secure deposits of the customer comes within the definition of service for which Service Tax is to be paid by the Bank, which is not insuring its own asset but insuring the deposits of the customers.
(ii) Whether Service Tax paid on insurance premium to DICGC for insuring deposits is eligible input credit for the Banking Institutions.
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2019 (6) TMI 1533
Maintainability of petition - availability of alternate remedy - Interest on belated payment of tax and penalty - Entry Tax Act - HELD THAT:- Petition is rejected in limine since the question raised is a substantive, legal issue not involving any questions of fact, let alone disputed questions of fact, that can certainly be raised in a writ petition.
It is too well settled a proposition that interest may be levied only in the event of there being a specific, enabling and substantive provision in the Enactment in question, authorising such levy - In the present case, there is, admittedly, no such provision in the Entry Tax Act, 1990.
Though various provisions enable the authorities to levy tax and penalty, there is no entitlement therein to levy interest on the belated payment of tax and penalty, which is essentially in the nature of penal interest. Reference to the provision of the Tamil Nadu General Sales Tax Act, 1956, is misconceived as the Entry Tax Act, as stated earlier, is a compact and self-contained statute that does not draw upon any other law, including the General Sales Tax Law, in the matter of assessments thereunder.
Petition allowed.
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2019 (6) TMI 1532
Valuation of imported goods - over-valuation - ladies garments - mis-declaration of description of goods in the shipping bills (for availing excess Drawback) - amendment of shipping bills sought - rejection of declared value - Confiscation - redemption fine - penalty - HELD THAT:- The proceedings were initiated against the appellant on the ground that it had mis-declared the value as well as description of goods for availing excess drawback amount. Thus, ordered for confiscation of goods covered under the disputed shipping bills in terms of Section 113 (i) ibid is sustainable.
However, the appellant itself had sought for amendment of the shipping bills with regard to the descriptions and value of goods and based on the information submitted by it, the FOB value was re-determined by the department. Further, it is also noticed that the goods in question were allowed for exportation on the basis of request made by the appellant. Thus, under the circumstances of the case, the amount of redemption fine and penalty can be reduced in the interest of justice.
Appeal allowed in part.
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2019 (6) TMI 1531
Addition u/s 68 on bogus share application money received - HELD THAT:- Assessee had received share application money from four parties i.e. M/s Victor sales Pvt. Ltd, M/s Shipra Fabrics Pvt. Ltd, M/s Santoshima Lease Finance & Investment India Pvt. Ltd and M/s Dolex Commercial Pvt. Ltd. The AO made additions by holding that the identity, credit worthiness of the lender and the genuineness of the transaction were not proved.
Whereas the assessee had placed on record the documents in the shape of share application form, resolution of respective companies, memorandum and articles of the companies, copies audited statement of accounts, bank statements of respective companies and also copies of acknowledgement of income tax return filed for A.Ys. 2009-10, 2011-12 and 2015-16. Apart from above, documents in the shape of copies of confirmation of the respective parties and the copies of letters filed by all the four parties pursuant to notice issued u/s. 133(6) of the Act.
The assessee had fully explained the nature and source of amount received as share application money and AO had not pointed out any mistake on any of the particulars furnished by the assessee and/or the parties directly. It is also important to mention here that all the parties responded to the notices u/s 133(6) of the Act and submitted all the required documents /particulars. - Decided in favour of assessee.
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2019 (6) TMI 1530
Short payment of Additional Duty of Customs (CVD) - import of chocolates/cream wafers etc. - Section 4A of the Central Excise Act, 1944 - HELD THAT:- In the present case, the disputed Bill of Entry was filed by the appellant on 29.06.2005 and out of charge order was issued by the department on 16.07.2005. Insofar as levy of CVD and assessment of goods on the basis of MRP is concerned, the Central Government vide Notification No. 2/2006 – C.E. (N.T.), dated 06.03.2006 has brought certain specified goods for such levy. Since the period of import is prior to the date of issuance of the notification and there is no specific mention that such notification will have the retrospective effect, such notification shall not be applicable to the case in hand for MRP based assessment.
Appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1529
TP Adjustment - MAM selection - correct method to be applied for determining arm's length price of the international transaction between the assessee and the associated enterprise - TPO made the adjustment to the entire segment of the manufacturing activity instead of making the adjustment for only international transaction BUT Tribunal held that the TPO was not justified in making adjustment to the entire segment of manufacturing activity without restricting the same to the manufacturing transactionHELD THAT:- Tribunal in the process relied upon and referred to the decision of the Division Bench of this Court in case of CIT v. Tara Jewels Exports (P.) Ltd [2015 (12) TMI 1130 - BOMBAY HIGH COURT]. The principles laid down in the said decision have been followed consistently in later decisions such as in cases of CIT v. Thyssen Krupp Industries India (P.) Ltd.[2015 (12) TMI 1076 - BOMBAY HIGH COURT] and CIT v. Alstom Projects India Ltd. [2016 (12) TMI 1408 - BOMBAY HIGH COURT] In the result, do not find any error in view of the Tribunal. The appeal is dismissed.
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2019 (6) TMI 1528
Clearance of Departmental Examination for Income Tax Officers held in the year 2003 - grant of two advance increments w.e.f 17.11.2003 - promotion of applicant as Income Tax Officer w.e.f 7.4.2005, the date on which his immediate junior was promoted and grant him consequential monetary benefits including re fixation of pension and other terminal benefits - HELD THAT:- The petitioner is obviously relying on the introductory part, more particularly, that portion of the same which makes 'the Modified Rules' applicable for the Departmental Examination to be held in 1998 onwards. True that the words 'to be held in 1998 onwards' were used therein. But, the fact is that examinations for the year 1998 and subsequent years were completed by then and hence, the petitioner could not be heard to contend that based on the lowering of the 'Pass Percentage' from 26.5.2008, he should be declared to have passed the examination. True that it was made clear therein that all the Departmental Examinations for Income Tax Officers held upto 1997 and the results of which were declared would continue to be governed by the Departmental Examination for ITOs issued under the Directorate's letter F.No.EG(20) (8) 93/DIT to 6625 dated 18/26.11.1993 as amended from time to time. As noticed hereinbefore, the petitioner had appeared for the Departmental Examinations to be cleared for promotion to the post of Income Tax Officer in the years 2000, 2001, 2002 and 2003. During those relevant periods, it was being governed by the Rules for the Departmental Examination for Income Tax Officers-1998. The rules relating to the conduct of the Departmental Examinations were modified and the percentage required for a pass was reduced to 50% for each paper only as per the 'Modified Rules' and Modified Rules relating to pass percentage viz., Clause VI was given effect only from 26.5.2008. Hence, how can the petitioner bring in a challenge on the ground of discrimination and canvass the position that it should be deemed to have come into operation with retrospective effect from 1998 as relates 'pass percentage'?
There can be no doubt with respect to the position that an amendment with such a consequence cannot be made as it would then result in taking away of the accrued right of a large number of personnel. The contention of the petitioner that giving effect to Rule IV of the Modified Rules with effect from 26.5.2008 should be taken as prescription of cut off date also cannot be accepted in the said circumstances. It actually prescribes that from 26.5.2008, a candidate for ITO examination would be declared to have completely passed the Departmental Examination for ITOs if he secures a minimum of 50% (45% in case of SC/ST) in each of the subjects included.
It also would not amount to classification of employees. If the required 'pass percentage' in respect of departmental examinations is brought down from 60% to 50% with retrospective effect unmindful of the fact promotions were effected and promotees have already assumed charge in the promoted post, it would cause total chaos in the matter of administration. That apart, in such circumstances, one cannot be oblivious of the position that an accrued right cannot be taken away by making modification in the rules after the examination, publication of the result and consequential action in effecting promotions. Very rightly, the respondents have carefully incorporated Rule VI and gave effect to it only prospectively, realising and recognizing such settled position of law. If persons who could not acquire the requisite 'pass percentage' in examinations conducted prior to the commencement of the Modified Rules, are declared as passed by virtue of the Modified Rules with effect from a previous day, it would certainly entail reversion of many hands who were promoted on passing such tests in view of the requirement in that regard during the relevant period. The Tribunal had rightfully repelled those contentions.
Merely by mounting challenge against the modified rules, the petitioner cannot be permitted to resurrect the aforesaid questions based on the principle of res judicata. The petitioner cannot be permitted to raise new contentions in the light of the 'ought and might' principles contained in the doctrine of constructive res judicata.
Petition dismissed.
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2019 (6) TMI 1527
Disallowance on Loss on Forex Derivatives - Whether foreign exchange is a commodity as envisaged u/s 43(5)(d)? - speculative transaction or not? - HELD THAT:- Foreign exchange derivate loss in respect of capital items is certainly capital expenditure and cannot be allowed as loss whereas, in respect of revenue items, it can be allowed as revenue loss. In the present case, the AO had not undertaken the exercise of verifying whether foreign exchange derivate transaction are in respect of capital items or revenue item, there is no material on record to establish the nature of transactions. We remand this issue back to the file of the AO for limited purpose for examining the issue. Appeal of the assessee is partly allowed for statistical purpose.
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2019 (6) TMI 1526
Deduction claimed towards Voluntary Retirement Scheme (VRS) expenses - HELD THAT:- Commissioner (Appeals) has found that VRS expenses in fact, has been added back by the assessee to arrive at the profit which has been considered for computation of income. Assessee had not claimed the deduction. The aforesaid factual finding of Commissioner (Appeals) remains uncontroverted before us. We find no reason to interfere with the decision of Commissioner (Appeals) on this issue. Ground is dismissed.
MAT Computation - add the provision of doubtful debts and advances while computing the book profit under section 115JB - HELD THAT:- It is evident, the AO taking recourse to clause (c) of Explanation–1 to section 115JB(2) has added back the provision for doubtful debts and advances to the book profit of the assessee. Reading of the aforesaid provision makes it clear that only the amount set aside towards provision for meeting unascertained liability can be added back to the book profit under the aforesaid provisions. Undisputedly, the provision for bad and doubtful debts and advances are not in the nature of unascertained liability. Rather, it represents the assets of the assessee. Therefore, under no circumstances, clause (c) to Explanation–1 of section 115JB(2) of the Act can be brought into play to make the adjustment to book profit.
Since, at the time of completion of the assessment proceedings such provision was not in the statute book, therefore, applicability of such provision has never been examined vis–a–vis the relevant facts. That being the case, at this stage we cannot entertain a completely new plea taken by the Revenue on the issue. Respectfully following the decision of the Tribunal in assessee’s own case we uphold the decision of the learned Commissioner (Appeals) on this issue.
Claim of deduction u/s 80HHC from the book profit computed under section 115JB - Commissioner (Appeals) relying upon the Special Bench decision of the Tribunal, in Syncom Formulations India &Ors. [2007 (3) TMI 288 - ITAT BOMBAY-H] has held that while computing book profit under section 115JB deduction u/s 80HHC of the Act has to be allowed.
DR that the aforesaid Special Bench decision is no more a good law in view of the decision in Ajanta Pharma Ltd. [2009 (5) TMI 7 - BOMBAY HIGH COURT]. We are unable to accept the aforesaid contention of the learned Departmental Representative for the following reasons. In Bhari Information Technology Systems Pvt. Ltd. [2011 (10) TMI 19 - SUPREME COURT] has approved the view taken by the Special Bench decision of the Tribunal in Syncom Formulations India &Ors. [2007 (3) TMI 288 - ITAT BOMBAY-H].
In case of KEC International Ltd.[2013 (9) TMI 673 - ITAT MUMBAI] Tribunal following the aforesaid decision of the Hon'ble Supreme Court has directed the Assessing Officer to compute deduction under section 80HHC on the basis of adjusted book profit and not on the basis of profit computed under the normal provisions of the Act. In view of the aforesaid, we do not find any reason to interfere with the decision of the learned Commissioner (Appeals).
Set–off of brought forward loss and unabsorbed depreciation - HELD THAT:- While allowing assessee’s claim, learned Commissioner (Appeals) has relied upon the ratio laid down by the Hon'ble Supreme Court in case of Marshall Sons & Co. [1996 (11) TMI 6 - SUPREME COURT]. As per the aforesaid decision, the date of merger is from the appointed date and not the date on which the High Court granted its approval. In our view, as per the ratio laid down by the Hon'ble Supreme Court in assessee’s claim of set–off of accumulated loss and unabsorbed depreciation has to be allowed from the appointed date of merger in terms of section 72A of the Act. That being the case, we do not find any infirmity in the decision of learned Commissioner (Appeals) on the issue. Accordingly, the ground raised is dismissed.
Disallowance of club entrance / subscription fee - Revenue or capital expenditure - HELD THAT:- The Hon'ble Supreme Court in United Glass Mfg. Co. Ltd. [2012 (9) TMI 914 - SUPREME COURT], has held that club membership fee for employees incurred by the assessee is allowable as business expenditure under section 37 - Hon'ble Supreme Court has also held that even otherwise also, it is a pure business expenditure as the expenditure is incurred by the assessee to improve its business relations and prospects. The same view has been expressed by the Hon'ble Jurisdictional High Court in Lubrizol India Ltd.[2015 (8) TMI 134 - BOMBAY HIGH COURT]. In view of the above deduction claimed by the assessee on account of club membership fee is allowable as business expenditure.
Disallowance of unpaid service tax u/s 43B - HELD THAT:- Hon'ble Jurisdictional High Court in Tops Security Ltd. [2018 (9) TMI 799 - BOMBAY HIGH COURT] following its earlier judgment held that provision of section 43B of the Act does not impose liability to pay service tax before actual receipt of the fund in the account of the assessee. The Hon'ble Jurisdictional High Court held that liability to pay service tax into the treasury will arise only upon the assessee receiving the fund and not otherwise.
In Knight Frank India Pvt. Ltd. [2016 (8) TMI 1096 - BOMBAY HIGH COURT] held that since the assessee did not claim any deduction on account of service tax payable, there can be no occasion to invoke provisions of section 43B. In the facts of the present case also, it is the contention of assessee that since it has not claimed any deduction on account of service tax payable, no disallowance under section 43B of the Act can be made. We delete the disallowance made by the assessee under section 43B.
Disallowance u/s 40(a)(ia) - HELD THAT:- The assessee is not in a position to deduct tax at source. Further, it is the claim of the assessee that the provision so created is not claimed as a deduction. In our view, the aforesaid claim of the assessee requires consideration. If at the time of creating the provision for expenditure payee is not identifiable, the assessee cannot possibly deduct tax at source, since, the details of the payees are not known to the assessee. Further, it is the contention of the assessee that the provision created is reversed in the subsequent year on the basis of actual payment made against the expenditure claimed. This claim of the assessee also requires verification along with the fact whether at the time of actual payment, the assessee has deducted tax at source. Since, the aforesaid facts have not been properly verified by the Departmental Authorities, we are inclined to restore the issue to the Assessing Officer for de novo adjudication after due opportunity of being heard to the assessee.
Disallowance of brought forward loss of amalgamating company - HELD THAT:- We are of the view that this issue has to be restored back to the Assessing Officer for deciding afresh depending upon the decision to be taken on assessee’s claim on the issue in assessment years 2006–07 and 2007–08. This ground is allowed for statistical purposes.
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2019 (6) TMI 1525
Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its dues/loan - existence of debt and default or not - HELD THAT:- The Financial Creditor-Bank has succeeded to establish a case for triggering the Corporate Insolvency Resolution Process.
The Financial Creditor has placed various documents in relation to the disbursement of different kinds of loan to the Respondent Company. The materials on record and the loan documents clearly depicts that the loan was sanctioned, disbursed and the loan agreements were properly executed. Respondent company utilized and enjoyed the loan facilities. Apart the other documents the Financial Creditor has relied upon the letters of respondent company confirming creation of mortgage by deposit of title deeds in order to secure the loan - In addition, the Financial Creditor has filed the relevant statement of accounts duly certified in accordance with Banker's Book Evidence Act, 1891 as per the requirement of Form 1 Part V Column 7 of the application. A true copy of statement of accounts submitted by the Financial Creditor pertaining to various loan facilities, kept during the course of banking business, basing on which the claim has been raised, can be termed as sufficient evidence of the financial debt.
Application admitted - moratorium declared.
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2019 (6) TMI 1524
Late filing fee u/s 234E - intimation u/s 200A - Late filing of TDS returns / statement - Scope of amendment - HELD THAT:- Amendment to Section 200(3) of the I.T. Act was made only with effect from June 1st, 2015. Except for the Quarter-1 in the assessment year 2016-2017 fee levied u/s.234E of the Act for the 2nd, 3rd & 4th quarters of the Financial Year 2012-2013 and for 1st, 2nd, 3rd & 4th quarters of the Financial Year 2013-2014 and for 1st, 2nd, 3rd & 4th quarters of the Financial Year 2014-2015 on account of late filing of TDS return, are coming under the purview of amendment to Section 200(3)
Fee levied u/s.234E of the Act while processing the statement of tax deducted at source was beyond the scope provided under Section 200A of the Act. Respectfully following the judicial precedent GLEE PHARMA PVT LTD VERSUS DCIT, CPC, TDS, GHAZIABAD [2017 (8) TMI 1455 - ITAT CUTTACK] AND GOVT. HIGH SCHOOL, UNIT-VI, BHUBANESWAR VERSUS ACIT (TDS) , BHUBANESWAR [2019 (10) TMI 1270 - ITAT CUTTACK] we set aside the orders of lower authorities and direct the AO to delete the levy of fee u/s.234E.
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2019 (6) TMI 1523
Mr.J.Madanagopala Rao, learned Senior Panel Counsel appearing for the Director General of Foreign Trade and Secretary to Government of India, Ministry of Commerce and Industry, New Delhi, respondents 4 and 5, is directed to get appropriate instructions, on the averments made in the supporting affidavit and the prayer sought for.
Post on 24.06.2019, in the motion list.
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2019 (6) TMI 1522
Refund of unutilized CENVAT Credit - export of services under the category of Scientific and Technical Consultancy services to the principal located outside India in USA - refund denied on the ground that the appellant does not have any receipt and/or billing for export of services during the said quarter - HELD THAT:- The appellant at the stage of first adjudication for the third quarter, Order-in-original dated 9.6.2010, has stated this fact, which is recorded in para 11(2) of the said order, that the amount of ₹ 50,000 USD relates to 2nd quarter and out of which, 30,000 USD relates to the third quarter. Accordingly, it is found that the rejection of the refund claim is bad.
Accordingly, the impugned order is set aside and the appeal is allowed by way of remand to the Adjudicating Authority for the limited purposes of verifying the aforementioned bill which has been raised for the two quarters, as the copy of the same is not available before this Tribunal.
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2019 (6) TMI 1521
Refund of Import Duty - goods in damaged condition - goods imported by the appellant were not defective and were damaged en route after clearance from the customs in sound condition - applicability of Section 22 or Section 26A of Customs Duty - HELD THAT:- The overseas supplier is under the contractual obligation to deliver the goods in the condition as per the agreed terms at the buyer’s premises.
In this case, since the goods were damaged en route and did not reach the factory of the appellant, such defective goods were exported by it and also accepted by the overseas supplier. The documents annexed to the Shipping Bill also established the fact that the duty paid imported goods was in fact re-exported by the appellant. Since, the goods imported by the appellant were not subjected to any process of repair, re-conditioning etc. and the department was satisfied that the defective imported goods were actually re-exported by the appellant and that the appellant did not claim any duty.
The observation of the learned Commissioner (Appeals) that Section 26A ibid does not deal with the situation of goods damaged during transportation is not proper and justified - Section 22 ibid and Section 26 ibid are independent of each other and repeated reference to Section 22 in the impugned order is unwarranted and has no relevance to the case in hand.
The appellant should be entitled for refund of import duty in terms of Section 26A ibid. - appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1520
Clandestine Removal - MS Ingots - excess consumption of electricity - demand based on third party evidence - penalty on Director - HELD THAT:- Since the drop of demand qua excess electricity consumption has not been objected on the part of the Department, there is no appeal filed otherwise.
Demand based on third party evidence - the case of Revenue is based upon the statement of the representative of M/s. Monu Steels i.e. the third party evidence and the documents recovered from their premises - HELD THAT:- Admittedly no search or recovery got conducted in appellant’s premises. The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established - The Hon’ble High Court of Allahabad in the case of M/S. CONTINENTAL CEMENT COMPANY VERSUS UNION OF INDIA & OTHERS [2014 (9) TMI 243 - ALLAHABAD HIGH COURT] has held that the charge of clandestine removal is a serious charge, which is required to be proved by the Revenue by tangible and the sufficient evidence. It was clarified by the Hon’ble Tribunal that mere statements of buyers that too based on memories were not sufficient without support of any documentary evidence - Thus, the Commissioner (Appeals) has committed an error while relying upon third party evidence to confirm the demand qua service charge of clandestine removal.
Since the demand has been set aside, the question of imposition of any penalty on the Director of the company does not arise - appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1519
Maintainability of application - initiation of CIRP - contractual relationship between the Operational Creditor and the Corporate Debtor or not - HELD THAT:- In the present case, the Operational Creditor has paid money in advance to the Corporate Debtor and on failure by the Corporate Debtor to supply the goods, the operational creditor has invoked the jurisdiction of this Adjudicating Authority under the 1B Code. The contention of the Corporate Debtor is that there is no contract between the parties and the agreement submitted by the Operational Creditor is not signed by the Corporate Debtor. However, the Corporate Debtor has not made any statement about its Invoice dated 08.02.2017. The invoice itself is a contract between the parties. It is also pertinent to note that as per email dated 07.03.2017 and 09.03.2017 of the Corporate Debtor, it could be seen that the Corporate Debtor himself has mentioned about the agreement. It could also been seen that the said email correspondence revolve upon the issue of supply of sugar and repayment of the amount received. Therefore, the contention of the Corporate Debtor that there is no agreement substantiated and it is contrary to its own email correspondence.
Since, the amount due is arising out of an agreement of sale of goods, the Operational Creditor is having every right of approaching this Adjudicating Authority under the 1B Code. Since the Corporate Debtor failed to make the payment and the receipt of the same is not denied by the Corporate Debtor and the email correspondences produced by the Operational Creditor revolves upon the issue of supplying sugar and refund of amount. In these circumstances, the Contentions raised by the Corporate Debtor is to fail. Further, the Operational Creditor has proved its case by placing overwhelming evidence that default has occurred for which the Corporate Debtor was liable to pay.
The petitioner has complied with the all the requirement as stipulated under the provisions of the 1B code, 2016 for the purpose of initiating Corporate Insolvency Resolution Process. In these circumstances, this Adjudicating Authority is inclined to admit the instant petition.
Appeal admitted.
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2019 (6) TMI 1518
Approval of Resolution Plan - Section 33(2) of the Insolvency and Bankruptcy Code, 2016 - CIRP process - HELD THAT:- The Liquidator has furnished written consent dated 30.05.2019 attached to IA No. 267/2019, stating that he is eligible to be appointed as Liquidator of the Corporate Debtor in accordance with the provisions of Insolvency and Bankruptcy Board (Liquidation Process) Regulations, 2016. Therefore, Committee of Creditors and Resolution Professional have proposed Liquidation Process under Section 33(2) of the insolvency and Bankruptcy Code, 2016 - thus, there are sufficient grounds to initiate Liquidation Process.
Application disposed off.
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2019 (6) TMI 1517
Maintainability of petition - initiation of CIRP - HELD THAT:- In view of the order passed, admitting the petition against the same Corporate Debtor, the present IB petition becomes infructuous. However, the Operational Creditor is at liberty to file their claim before the RP.
Petition disposed off.
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2019 (6) TMI 1516
Exemption u/s 11 - Assessee registered under section 12A under sixth limb of the definition of ‘charitable purposes’ as given in section 2(15) - HELD THAT:- It is pertinent to note that registration under section 12A was granted to the assessee by the Income Tax Department after considering its objects which, inter alia, included “to assist and encourage the application of science and scientific methods to the manufacture and utilization of leather and allied products by the publication of journal and other literature or by the holding of meeting from time to time, or otherwise to organize exhibitions, symposium etc. for defusing among the technologists knowledge and information relating to leather and allied industries to create public interest in leather science by organizing popular scientific talks and by defusing basic and applied scientific knowledge and in pursuance of these objects, which were considered as charitable while granting registration u/s 12A to the assessee, exhibitions were organized by the assessee known as “LEXPO” during the year under consideration and income from Stalls rent and entry ticket charges was generated.
There was also income generated by the assessee from sale of publication. In the return of income filed for the year under consideration, exemption under section 11 was claimed by the assessee for the said income but the said exemption was denied by the AO in the assessment completed under section 143(3) by relying on the proviso to section 2(15) as amended w.e.f. A.Y. 2009-10 as well as the provisions of section 28(iii) of the Act.
Similar issue was involved in the case of Credai Bengal [2016 (11) TMI 600 - ITAT KOLKATA] it was held by the Tribunal that where assessee’s object of promotion of construction industry in India had been accepted by the Revenue for granting registration under section 12AA, merely because the assessee held fairs in India and abroad which generated surplus fund to the assessee, it being incidental to main object of the assessee could not be said to be commercial activity of the assessee and there was no violation of the provisions of section 2(15).
Ratio of the decision of the Tribunal rendered in the case of Indian Chamber of Commerce [2014 (12) TMI 256 - ITAT KOLKATA] as well as in the case of Credai Bengal [2016 (11) TMI 600 - ITAT KOLKATA] is squarely applicable in the present case and respectfully following the same, I set aside the impugned orders of the ld. CIT(Appeals) on the issue under consideration and direct the Assessing Officer to grant exemption under section 11 to the assessee for both the years under consideration as claimed. - Decided in favour of assessee.
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