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Showing 221 to 240 of 2102 Records
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2019 (2) TMI 1886 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Early Dissolution of Corporate debtor - Section 54 of the Insolvency Code - Resolution Professional has reported that as per the Balance Sheet of the Debtor Company there was no Asset for Liquidation so as to satisfy the outstanding Debt - HELD THAT:- From section 54, it is noticed that the Corporate Debtor do not have assets to be liquidated hence an Application is moved for the "Dissolution of the Corporate Debtor". This Section is to be read along with Regulation 14 of IBBI (Liquidation Process) Regulations 2016 which says that any time after the preparation of a Preliminary Report if it appears to the Liquidator that the realizable properties of the Corporate Debtor are insufficient to cover the cost of Liquidation process, and the affairs of the Debtor do not require further investigation may apply to NCLT for early dissolution of the Corporate Debtor - it is also worth to refer Section 59, Sub-Section 7 of IBC, although this Section is in respect of Voluntary Liquidation of a Corporate Person, however, according to which where the affairs of the Corporate Person have been completely wound up, and its assets completely liquidated, the Liquidator shall make an Application to Adjudicating Authority for the Dissolution of such Corporate person.
Once the affairs of a Company have been completely wound up, the Company Liquidator shall make an Application to the Tribunal for Dissolution of the Company as per Section 303 of the Companies Act, 2013, however, even this Section has not yet been enforced. A procedure is laid down, yet to be make applicable, that a copy of the Dissolution Order shall be forwarded to the Registrar who shall record in the Register of Registration regarding Dissolution of the Company. Although parallel provisions are made in the Insolvency Code as well as in the Companies Act, 2013, but the provisions of the Companies Act have not been notified
Through this Order it is hereby declared that not only it is just and equitable but because of the fact that no asset is available for the purpose of 'Liquidation' as reported by Learned Resolution Professional, this is a fit case of a Corporate Debtor to be dissolved as prescribed u/s. 54 of The Insolvency Code. Ordered accordingly, stood 'Dissolved' from the date of this Order.
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2019 (2) TMI 1885 - NATIONAL COMPANY LAW TRIBUNAL ALLAHABAD BENCH
Compounding of Offence - default in filing Cost Audit Reports in the prescribed Form I-XBRL with the Central Government under the provisions of Section 233 B of the Companies Act, 1956 read with the Companies (Cost Audit Report) Rules, 2011 for the Financial years 2011-12, 2012-13 and 2013-14 - Section 441 of the Companies Act, 2013 - HELD THAT:- By the date of filing of this application before this Tribunal on 19.11.2018 the Companies (Amendment Ordinance, 2018) came into force i.e. on 2.11.2018 - In view of the amendment to the Section 441 of Companies Act which came into force with effect from 9.2.2018 this Tribunal can compound the offence punishable under various provisions of the Companies Act other than the offences punishable with imprisonment only or punishable imprisonment and with fine.
Section 233B (11) provides punishment of fine only to the company which may extend to Five Thousand rupees and provide imprisonment or fine which may extend to Fifty Thousand or with both for every officer of the companies who is in default - Section 441 as amended with effect from 9.2.2018 gives power to this Tribunal to compound the default committed in respect of Section 233 B of the Companies Act i.e. non-filing of Cost Audit Reports by the Applicants within the given time.
Section 441 only puts a restriction on the power of the 'Regional Director' and 'the authorised officers of the Central Government' permitting them to compound the offences wherein the maximum amount of fine does not exceed five lakh rupees and is punishable with 'fine only'. No such fetter has been put on powers of the Tribunal, which is the main forum for such compounding of offences, the other forum of 'Regional Director' and 'Officer of the Central Government' being alternative but restricted by extent of quantum of punishment. The Tribunal has the powers to compound all the offences irrespective of any pecuniary limit as evident from a bare perusal of Section 441.
Coming to the case of the second applicant namely the Managing Director of the first applicant company punishment provided is imprisonment or fine or both. Where imprisonment is provided Regional Director has no jurisdiction to compound irrespective of fine amount - in respect of second applicant this Tribunal has got jurisdiction to compound the offences.
In the case on hand the default is not punishable with imprisonment or with imprisonment and fine. It is only punishable with imprisonment or fine or both. Therefore, even though prosecution is pending without seeking permission from the concerned Court, this Tribunal can compound relying upon the aforesaid two judgments of the Hon'ble NCLT and the amended 441(6) of Companies Act, 2013.
Quantum of compounding fee to be imposed - HELD THAT:- The company has appointed a cost accountant and has got prepared the cost accounting report but could not file them in time due to technical reasons and the default has been made good. But the Company is having a turn over around rupees 211 Crores. Hence no need to take lenient view in imposing compounding fee - The punishment provided for the company for default in non-filing of Cost Audit Report under Section 233B (11) is maximum five thousand rupees and the punishment of fine provided for the Managing Director is fifty thousand rupees maximum.
Application disposed off.
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2019 (2) TMI 1884 - NATIONAL COMPANY LAW TRIBUNAL BENGALURU BENCH
Restoration of name of the Company on the Register of Companies maintained by the Respondent - Section 252(3) of the Companies Act - HELD THAT:- It is not in dispute that the Registrar of Companies has taken impugned action in accordance with law, issued appropriate show cause notice. However, the Petitioner Company failed to avail the opportunity given by the Respondent resulting in striking off name of the Company by publishing notice in STK-7 in the Official Gazette on 24.08.2019 w.e.f 09.08.2019. The Learned Counsel for the Petitioner submitted that he is not disputing the action taken by the ROC but submits that due to absence of Accountant of the Company without proper intimation, without handing over the charge held by him resulted in non-compliance of the statutory requirements. The shareholders of the Company also were not aware of the absence of the Accountant from the Company.
We are convinced with the reasons given by the Petitioner for restoration of the name of the Company. Therefore we are inclined to direct the Respondent to restore name of Company, however, subject to complying with statutory Compliances along with requisite fee as per law within a period of 30 days, and to payment of cost of ₹ 20,000/-.
The Registrar of Companies, Karnataka, the Respondent herein, is ordered to restore the name of the Company in the Register maintained by the Registrar of Companies, Karnataka as if its name had not been struck off from the rolls of the Register with restoration of all consequential action by Registrar of Companies - Application disposed off.
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2019 (2) TMI 1883 - NATIONAL COMPANY LAW TRIBUNAL ALLAHABAD BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - unpaid Operational Debt - existence of debt and dispute or not - HELD THAT:- Petitioner issued demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 read with Rule 5 of the Insolvency Rules in respect of unpaid Operational Debt due to him on 22.10.2018 by speed post and it was received by the Respondent on 25.10.2018. Respondent issued reply notice dated 20.11.2018 stating that provided some reasonable time may be given for payment and he has unable to payment right now. Respondent requested not to initiate proceeding under Section 8 of the I&B Code.
Unpaid amount - HELD THAT:- The amount claimed by the petitioner represents the commission due to him for the services rendered by him in supplying and arranging for dispatch of the products manufactured by the Respondent - Therefore, the amount claimed is within the meaning of Operational Debt. Petitioner filed copies of invoices in proof of Operational Debt due to him. Petitioner also filed Ledger Extract. Moreover, respondent also admitted that Operational Debt remain unpaid.
Therefore, the amount claimed is within the meaning of Operational Debt. Petitioner filed copies of invoices in proof of Operational Debt due to him. Petitioner also filed Ledger Extract. Moreover, respondent also admitted that Operational Debt remain unpaid - this petition deserves to be admitted.
Petition admitted - moratorium declared.
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2019 (2) TMI 1882 - ALLAHABAD HIGH COURT
Validity of reassessment proceeding - Reopening of completed assessment - Harpic and Mortein Coil - rate of tax - UPVAT Act - HELD THAT:- The record reveals that the assessing authority while passing the original assessment order have considered all relevant material and rightly imposed tax at the rate of 4 %, therefore, there is no fresh or tangible material to form a reasonable belief that the turnover has escaped assessment, which could legally be permitted for initiating the reassessment proceeding under Section 29(7) of the Act. At the best it can be said that there is only a change of opinion, which is not permissible under the Act.
This Hon'ble Court, time and again has taken the view that in absence of no new material brought on record, the completed assessment cannot be re-opened merely on the basis of change of opinion.
There is no new material on record to be put forward by the respondents that the goods in question i.e. Harpic and Mortein Coil will be classifiable under Schedule-V of UP VAT Act so as to justify the higher rate of tax, at the rate of 12 % - the goods in question i.e. Harpic and Mortein are squarely covered under Entry 20, Part-A of Schedule-II of UPVAT Act.
Petition allowed.
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2019 (2) TMI 1881 - ITAT MUMBAI
Penalty us 271(1)(c) - addition to the extent of 12.5% of the bogus purchases - AO levied the penalty @ 100% of tax sought to be evaded - CIT(A) directed the Assessing Officer to restrict the levy of penalty to the extent of addition confirmed in the appeal - HELD THAT:- In appeal in quantum assessment, the co-ordinate bench of this Tribunal in cross appeal for Assessment Year 2009-10 & 2011-12 [2017 (10) TMI 523 - ITAT MUMBAI]of both the parties, restricted the disallowance of alleged bogus purchases @ 12.5% of the alleged bogus purchases. It is settled legal position that no penalty under section 271(1)(c) is leviable on adhoc disallowance. Considering the peculiar facts and circumstances of the case, we direct the Assessing Officer to delete the entire penalty levied under section 271(1)(c) of the Act. - Decided in favour of assessee.
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2019 (2) TMI 1880 - CALCUTTA HIGH COURT
Disqualification of Directors - validity of list published by the Registrar of the Companies naming the directors of the companies who have attracted disqualification under Section 164(2)(a) of the Companies Act, 2013 - HELD THAT:- Even a bare perusal of the impugned order reveals that no rights of the parties have been decided by the learned Single Judge and the matter has been directed to be heard finally upon exchange of affidavits. There is no plausible or justifiable reason as to why we should interfere in this matter.
In an Intra-Court Mandamus Appeal, no interference is usually warranted unless palpable infirmities or perversity are noticed on a plain reading of the impugned order. In the facts of the instant case, we do not notice any such palpable infirmity or perversity on a plain reading of the impugned order.
The appeal is thoroughly devoid of any merit and is liable to be dismissed along with the application for stay and stands accordingly dismissed.
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2019 (2) TMI 1879 - ITAT INDORE
Addition u/s 68 for alleged gifts - HELD THAT:- We find that the assessee is a member of same group and the alleged gift of ₹ 5,00,000/- has also been claimed to have been received by the company named Rajat Gems & Jewellers Pvt. Ltd. We are therefore inclined to sustain the addition u/s 68 of the Act for the alleged gifts as the assessee failed to explain its source and thus no interference is called for in the finding of Ld. CIT(A). Ground No.1 of the assessee’s appeal stands dismissed.
Addition u/s 69C - unexplained expenses in marriage - HELD THAT:- On going through the submission made by Ld. Counsel for the assessee before the lower authorities as well as the loose papers impounded during the course of search we observe that and list of tentative invitees were 1589 persons but in the very same set of seized documents at item 15 of BS-1 there was invoice dated 18.2.2004 for printing of 1000 invitation card. Further the proof of payment to the caterers were also part of seized records.
The addition made by Ld. A.O seems to be merely estimated because other than the list of invitees no other material evidence was unearthed by the search team which could prove that 1589 invitees attended the ceremony. Therefore in absence of no other evidence placed before us by the Revenue authorities and in the given facts and circumstances of the case it will not be justified to sustain the estimated addition u/s 69C of the Act merely on the basis of list of invitees. In the result the addition u/s 69C of the Act stands deleted. - Decided in favour of assessee.
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2019 (2) TMI 1878 - SUPREME COURT
Maintainability of plaint - Jurisdiction of Wakf Tribunal - rejection of the plaint on the ground that the Tribunal has no jurisdiction to entertain the suit and the Civil Court alone has jurisdiction to entertain the suit - whether suit filed by the appellant before the Wakf Tribunal praying for decree of possession of suit property was maintainable in Wakf Tribunal or would lie only in a Civil Court?
HELD THAT:- Although, the Wakf Tribunal has held that suit was maintainable before it, the High Court has reversed the order of the Tribunal holding that the suit is not maintainable before the Wakf Tribunal relying on the judgment of this Court in Ramesh Gobindram. Before we notice the judgment of this Court in Ramesh Gobindram [2010 (9) TMI 1267 - SUPREME COURT], the statutory provisions pertaining to Wakf and Wakf property need to be noted.
As per Section 6 sub-section (1) if any question arises as to whether a Wakf property in the list of Wakfs is wakf property or not,a suit can be instituted in a Tribunal for the decision of the question which decision shall be treated as final. Limitation for such suit was also provided in proviso as one year from the date of the publication of the list of Wakfs. Sub-section (5) of Section 6 contained the provision barring a suit in any Court after the commencement of the Act in relation to any question referred to in sub-section (1). In Suit No.250 dated 10.09.2001 (RBT No.84 dated 09.10.2006, Punjab Wakf Board vs. Sham Singh) the question has arisen as to whether suit property is a Wakf property or not. We have noticed pleadings in written statement filed by the defendant in the above suit where it was specifically denied that suit property is a Wakf property. Thus, within the meaning of sub-section (1) of Section 6 question that whether a suit property is a Wakf property or not has arisen. Thus, the suit wherein the above question has arisen ought to be considered by the Tribunal and the High Court clearly erred in allowing the revision filed by the defendant by its order dated 20.09.2010.
The view of the High Court that right, title and interest of a non-Muslim to the Wakf in a property cannot be put in jeopardy is contrary to the statutory scheme as contained in Section 6 of the Act, 1995. Thus, the reason of the High Court to allow the revision petition is wholly unfounded. The defendant in written statement has pleaded that the suit property is not Wakf property. When issue in the suit is as to whether suit property is Wakf property or not it is covered by specific provision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal under Section 83 and bar under Section 85 shall come into existence with regard to jurisdiction of Civil Court - The defendant having pleaded that suit property is not a Wakf property, the question has to be decided by the Tribunal. Thus, the High Court has committed error in allowing the revision petition. Thus, this appeal deserves to be allowed.
Whether a suit within the meaning of Section 6 sub-section (1) or Section 7(1) is to be filed within a period of one year of publication of list of Wakfs under Section 5? - HELD THAT:- The provision contained in proviso to Section 6(1) that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of Wakfs shall be applicable to every person who though not interested in the Wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4 - When Section 6 sub-section (1) provides for raising a dispute regarding Wakf property in a period of one year, it applies to every person who wants to dispute the list except those who have been not served notice under Section 4(1).
Appeal dismissed.
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2019 (2) TMI 1877 - CESTAT CHANDIGARH
Customs House Agent service - It appeared to the Revenue that the respondent have contravened the provisions of Section 67 of the Act, as amended, and Rules made thereunder and made payment of service tax only on a portion of gross amount received for providing the taxable service - HELD THAT:- It is on record that the DGCEI conducted investigation considering the respondent as CHA only but on later point of time when respondent stated the fact about non-registration as CHA which is also admitted in show cause notice itself that the respondent were not registered as a CHA under sub-section (2) under Section 146 of the Customs Act, 1962 and were actually work through registered CHA Pooja Travels and later on categorised the respondent as clearing and Forwarding Agent. Learned Adjudicating Authority is, therefore correct in holding that the show cause notice ambiguous inasmuch as whether the respondent has contravened the value related to CHA service or related to clearing and forwarding agent service or to some other service.
The Commissioner has correctly held that service provider can be called as the Customs House Agent, if they are granted licence temporarily or otherwise, under CHA Regulations made under Section 142(2) of the Customs Act. It is admitted fact that respondent is not CHA which is also mentioned in the impugned order. But we find that the respondent has registered as Customs House Agent by the service tax Department even though the same is contrary to the provisions of the Finance Act as evident from the definition of Customs House Agent under Section 65(35) of the Act and taxable services under the provisions of Section 65(105) of the Act.
The transportation charges etc. had been paid by their client and the Service Tax on the said charges had also been discharged by their client as consignee on reverse charge basis. Therefore, the same cannot be charged to Service Tax on account of the respondent once again - the respondent has erroneously got themselves registered with the Service Tax Department under the category of Customs House Agent and paid Service Tax. The erroneous registration will not rendered them liable to pay the service tax as CHA and service tax cannot be collected from them.
Appeal dismissed - decided against appellant.
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2019 (2) TMI 1876 - CESTAT AHMEDABAD
CENVAT Credit - input services - Erection, Commissioning and Installation services utilized in respect of construction of new shed in their factory premises - HELD THAT:- Both, the original adjudicating authority as well as the first appellate authority have relied on this exclusion clause for denying the credit on the services used by the appellant. It is not disputed that the services received by the appellant is classified as “Erection, Commissioning and Installation service”.
The exclusion clause ‘A’ in Rule 2(l) of the Cenvat Credit Rules, does not cover the service in the nature of “Erection, Commissioning and Installation service”.
Appeal allowed - decided in favor of appellant.
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2019 (2) TMI 1875 - ITAT BANGALORE
Unexplained investment in construction of a property by the assessee u/s. 69A/56(2) (vii) (b) - difference between the actual value and the value for which the assessee purchased the property - As per the provisions of the 69A read with Sec.50C and 56(2)(vii)(b)(ii) the following income shall be charged to tax under the head Income from other sources - HELD THAT:- Pune Bench of the Tribunal rendered in the case of Smt. Ratnakanta B. Agarwal [2017 (9) TMI 176 - ITAT PUNE] is applicable to the facts of the present case. Without going into the objections of the assessee with regard to the report of the DVO, find that the difference in valuation as adopted by the DVO and the price paid for the property by the assessee is less than 5%.
In the given circumstances, as held by the coordinate Bench of Pune Bench in the case of Smt. Ratnakanta B. Agarwal [Supra] valuation is always a matter of estimation and the difference of less than 5% is only a difference which should be construed as a difference in estimation and the value adopted by the assessee should be accepted in such circumstances. Respectfully direct that the addition sustained by the CIT(Appeals) should be deleted. - Decided in favour of assessee.
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2019 (2) TMI 1874 - CENTRAL ELECTRICITY REGULATORY COMMISSION, NEW DELHI
Restraint from terminating the PPA - delay in commissioning of the generating station of the Petitioner - invocation of Contract Performance Guarantee - HELD THAT:- Presently, the Petitioner is subject to the proceedings under the Insolvency and Bankruptcy Code, 2016. Pursuant to the order of the National Company Law Tribunal, Hyderabad Bench dated 29.8.2018, the Resolution Professional has been appointed. Further, the order of NCLT has imposed a moratorium on institution or combination of suits or proceedings under Section 14 of the IBC.
The Petitioner has submitted that this Commission has jurisdiction to adjudicate the dispute under Section 79(1)(f) of the Act as its generating station which is situated in Odisha and is supplying power to the distribution companies of Uttar Pradesh - Since, we have decided that during the period of moratorium under Section 14 of the IBC, no proceeding can lie before this Commission, we are not expressing any view on the issue of the jurisdiction.
Petition disposed off.
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2019 (2) TMI 1873 - ITAT MUMBAI
TP Adjustment - expenses claimed to have reimbursed to its AEs during the year under consideration - disallowance of claim of administrative expenses claimed by the assessee to have been reimbursed to its AE i.e. UTi- USA - HELD THAT:- As the contractual liability of the assessee to reimburse its share of cost and expenses for the intra-group services to its AE i.e UTi-USA was not dependant merely on the availing of the services of the AE, therefore, the determination of the ALP of the administrative expenses reimbursed to the said AE at Nil by the TPO/DRP for the reason that the assessee had failed to satisfy the benefit test as well as failed to justify the quantity of the services utilized and their commensurate cost etc. cannot be sustained and on the said count itself is liable to be vacated.
Alternatively, we are also not impressed with the observations of the lower authorities that as the assessee had failed to satisfy the “benefit test‟ in the course of the transfer pricing proceedings, hence the ALP of the administrative expenses reimbursed by the assessee to its AE i.e UTi-USA was to be taken at Nil.
Whether the assessee was benefited by availing the services of the AE? - the said aspect does not fall with the realm of the TPO. In our considered view as per Chapter X of the IT Act r.w Rule 10A to 10E of the Income-tax Rules, the jurisdiction of the TPO is specific and limited i.e to determine the ALP of an International transaction. It is not for the TPO to consider whether or not the expenditure incurred by the assessee passed the test of Sec. 37 of the IT Act and/or the genuineness of the expenditure. This exercise has to be done, if at all, by the A.O in exercise of his jurisdiction to determine the income of the assessee in accordance with the IT Act - adoption of the ALP of the administrative expenses reimbursed by the assessee to its AE i.e UTiUSA at Nil by the TPO for the reason that the assessee had failed to satisfy the “benefit test‟ also fails on the said ground.
As averred by the ld. A.R the TPO in the assesses own case for the immediately succeeding year i.e. A.Y. 2010-11 had accepted that the reimbursement of the administrative expenses by the assessee to its AE was at ALP. We find ourselves to be in agreement with the contention advanced by the ld. A.R that now when there is no shift in the facts of the case, thus it was not permissible for the TPO to have adopted an inconsistent approach and taken the ALP of the administrative expenses for the year under consideration at Nil. Our aforesaid view that the principle of consistency ought to be followed by the department is fortified by the judgments of Radhasoami Satsang Vs. CIT [1991 (11) TMI 2 - SUPREME COURT] AND M/S EXCEL INDUSTRIES LTD. AND MAFATLAL INDUSTRIES P. LTD. [2013 (10) TMI 324 - SUPREME COURT]
Disallowance on account of delay involved on the part of the assessee in depositing the amount of employees contribution to the Provident fund and the Employees State Insurance Scheme - HELD THAT:- Decided in the case of Commissioner of Income-tax (Central), Pune Vs. Ghatge Patil Transports Ltd. [2014 (10) TMI 402 - BOMBAY HIGH COURT] both the employers and the employees contributions to the various employees welfare funds are covered under Section 43B - as the employees contribution towards the Provident Fund and Employees State Insurance was deposited by the assessee prior to the “due date‟ of filing of its return of income, hence the same was not liable to be disallowed.
Reimbursement of expenses by the assessee to its AE viz. UTi-Network Inc. as being at ALP on the basis of “additional evidence‟ as admitted without affording an opportunity to the TPO to examine the same - HELD THAT:- Power of the DRP to suo motto call upon the eligible assessee to produce any document or examine any witness or file any affidavit is neither qualified by any restriction nor any obligation is cast upon the panel to afford any opportunity to the TPO to examine the same. We thus are of the considered view that in the backdrop of the aforesaid powers vested with the DRP to call upon the eligible assessee to produce any document or examine any witness or file any affidavit to enable it to issue proper directions, no infirmity arises from the order of the DRP in the case before us, who we find had on its own called for and considered certain documents in the course of the proceedings in order to enable it to issue proper directions. As the admission of the documents by the DRP is well in conformity with the powers vested with the panel, hence the appeal of the revenue does not merit acceptance and dismissed.
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2019 (2) TMI 1872 - BOMBAY HIGH COURT
Set off of unabsorbed depreciation of prior against long term capital gain - HELD THAT:- As decided in General Motors India (P) Ltd [2012 (8) TMI 714 - GUJARAT HIGH COURT] any unabsorbed depreciation available to an assessee on 1st April, 2002 (asst. yr. 2002-03) will be dealt with in accordance with the provisions of s. 32(2) as amended by Finance Act, 2001. And once the Circular No. 14 of 2001 clarified that the restriction of 8 years for carry forward and set off of unabsorbed depreciation had been dispensed with, the unabsorbed depreciation from asst, yr. 1997-98 up to the asst. yr. 2001-02 got carried forward to the asst. yr. 2002-03 and became part thereof, it came to be governed by the provisions of s. 32(2) as amended by Finance Act, 2001 and were available for carry forward and set off against the profits and gains of subsequent years, without any limit whatsoever.
Short term capital gain - Whether ITAT is right in deleting the addition on account of short term capital gain an sale of building without appreciating the fact value of building taken by the AO was clearly mentioned in the sale deed? - HELD THAT:- The assessee had sold the land along with the building thereon referred to as SEML property. The assessee had valued the land and the building separately and claimed depreciation on the constructed property. The sale consideration of ₹ 51.18 Lacs attributed to the building was offered to tax, but at the same time the assessee also claimed depreciation on the constructed property. The Tribunal accepted such depreciation, however subject to rider of revaluation of the another property referred as Ambaturr which also forms part of the block of depreciable assets. No error in the order of the Tribunal. No questions of law arises
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2019 (2) TMI 1871 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Territorial Jurisdiction - exclusion of ‘Offshore Group Entities’ from the purview of the interim order passed by this Appellate Tribunal - HELD THAT:- The Board of Directors of ‘IL&FS’ are allowed to permit all “Green Entities” including the entities which may be declared ‘Green’ out of the 100 entities to service their debt obligations as per scheduled repayment, which should be within the ‘Resolution Framework’ as described in the affidavit dated 25th January, 2019 and subject to the supervision of the Hon’ble Justice (Retd.) D.K. Jain.
In so far “10 Amber Entities”, prayer has been made to permit “Amber Group Entities” to make necessary payments only to maintain and preserve them as “Going Concern”.
Post these appeals ‘for orders’ on 12th March, 2019 at 4.00 p.m.
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2019 (2) TMI 1870 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Appointment of retired Hon’ble Supreme Court Judge to supervise the operation of the Resolution Process - HELD THAT:- The Union of India or/and IL & FS are also directed to provide the list of companies incorporated within the territorial jurisdiction of India. A separate list of Companies incorporated in other countries be also provided so as to exclude the Companies outside of India from the purview of our interim order subject to rights of contentions and objection of the Appellant and other parties - The Union of India will also submit lists of companies who are in the group of “green”, second list of the companies who are in the group of “Amber” and third list of Companies who are in the group of “Red” having registered office in India by the next date. Rest of the issues may also be considered on the next date.
Intervention application(s) may be filed by ‘Financial Creditors’ or ‘Operational Creditors’ by 8th February, 2019.
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2019 (2) TMI 1869 - CESTAT CHANDIGARH
Refund of CENVAT Credit - refund sought on the grounds that the duty was paid by them on various imported impugned components and indigenously procured goods without excluding the CVD and SAD portion of the duty and also the transportations cost paid on the imported consignments.
Whether the Cenvat Credit availed by the appellant can be considered as the part of assessable value in terms of section 4 (1) (a) of the Central Excise Act read with the Central Excise Valuation Rules?
HELD THAT:- The issue stands decided in favor of appellant in case of COLLECTOR OF CENTRAL EXCISE, PUNE VERSUS DAI ICHI KARKARIA LTD. [1999 (8) TMI 920 - SUPREME COURT], and SURYA CONDUCTORS P. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI [1999 (5) TMI 576 - CEGAT, MUMBAI]. In the case of Surya Conductor has been Affirmed by the Hon’ble Supreme Court in COMMISSIONER VERSUS SURYA CONDUCTORS (P) LTD. [1999 (10) TMI 750 - SC ORDER] It is held that the duty paid on input which is file as a Cenvat Credit is not to be considered while arriving at a cost of such inputs. Therefore, the appeal is legally wrong on this count.
Also, in this case the appellant has proved beyond the doubt at the strength of Chartered Accounting certificate and certificate from the Indian Railway that no incidence of duty has been passed on to buyers in the case (Indian Railway). In these circumstances, the impugned order is not sustainable and is being set aside.
Appeal allowed - decided in favor of appellant.
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2019 (2) TMI 1868 - GAUHATI HIGH COURT
Benefit of Abatement in terms of N/N. 24/2012-ST dated 06.06.2012 - Works contract - Contract for Changing Old AC Sheet/CGI Sheet Roofing by Profile Sheet in Valley Guttered Godown - scope of work awarded to the petitioner - Repair Work or Original Work.
Whether under the contract terms of the contract between the parties, the contract work in question was a “original works contract” or a “contract work for repair and maintenance” as provided under Clause (A) and (B) of Sub-Rule (ii) of Rule 2-A and Sub- clause (ii) of Clause (a) of Explanation-1 of the Service Tax (Determination of Value) Rules, 2006? - HELD THAT:- The present contract was not a contract that had been bifurcated in two parts, first part being an independent contract for removing existing roofing materials and the second part, being an independent contract for installing fresh roof. Therefore, as the work constituted a consolidated contract for replacing the existing CI/CGI sheet roof with Profile Sheet roof, in the considered opinion of this Court, the present contract work awarded to the petitioner was rightly not treated by the respondents to be a contract for doing “original work” - Thus, the present contract in question was not an “original works contract” and therefore, it could only have been treated as a contract work for maintenance, repairs, and renewal, entailing service tax on 70% of the component of the gross value of the contract. It is clarified herein that this finding is limited to the interpretation of contract between the parties herein, and this finding is not intended to be a conclusive determination for interpretation of taxable entry under Service Tax as the Revenue has not been heard on the point.
Whether as per the Contract Agreement between the parties, the share of service tax payable by the respondents could have been passed on to the petitioner, thereby giving right to the respondents to make the necessary deduction of service tax from the bills, including running account bills, payable to the petitioner? - HELD THAT:- Under clause-36A of the Conditions of Contract, there appears to be a departure from the language used in Clause 36(i)(a) of the said Conditions of Contract on the ground that it envisages that the entire sales tax or any other tax levied on materials was to be borne by the petitioner, which is conspicuously absent in Clause 36A, inter-alia, providing that the tendered rates would be inclusive of all taxes payable under respective statutes. Thus, tax as envisaged under Clause 36A excludes those taxes, levies, etc. which are described in Clause 36 of the Conditions of Contract.
On a competitive reading of the ratio laid down by the Hon’ble Apex Court in the case of Hindustan Lever Limited [2016 (7) TMI 76 - SUPREME COURT] and Dewan Chand Ram Saran [2012 (4) TMI 457 - SUPREME COURT], it is seen that in the later case, the issue related to shifting of the burden service tax liability from statutory assessee to the service recipients and in that context, while interpreting the contract agreement between the parties, Clause 9.3 of the terms and conditions of the said contract was referred to and it was held that the said Clause 9.3 was the contractor’s acceptance of the tax liability arising out of his obligations under the contract. As the tax liabilities in respect of the job mentioned in the contract was the entire responsibility of the contractor, it was held in the said case that all taxes and levies was to be borne by the contractor - The Hon’ble Apex Court further held that there was nothing in law to prevent the appellant therein from entering into an agreement with the respondent therein, being the handing contractor, that the burden of tax arising out of obligations of the respondent under the contract would be borne by the respondent therein.
However, in the present case in hand, on reading Clause 36A leaves no room for doubt that the parties had contracted that ‘all tendered rates shall be inclusive of all taxes and levies payable under the respective statutes’. Therefore, when as per statute, i.e. Notification dated 20.06.2012, the liability of the respondent, as prescribed as 50% in respect of services provided or agreed to be provided in service portion in execution of works contract, being the liability the person receiving the service, there was no clause in the contract agreement by a virtue of which it can be said that there was a binding contract between the parties by virtue of which the burden of the tax liability falling upon the respondents would be borne by the petitioner, this Court is of the considered opinion that there was no contractual agreement between the parties so as to saddle the petitioner with the service tax liability which was statutory levied on the respondent.
Thus, as per the contract agreement between the parties, the share of service tax payable by the respondents could not have been passed on to the petitioner and therefore, the respondents did not get any right to make deduction of service tax (liability of the respondents’ 50% share of service tax) from the bills payable to the petitioner.
Thus, the respondents are restrained from deducting service tax (liability of the respondents’ 50% share of service tax) from the bills of the petitioner - the respondents are directed to refund the amount of service tax (liability of the respondents’ 50% share of service tax) already deducted from the running account bills of the petitioner within a period of 3 (three) months from the date of receipt of certified copy of this order - petition allowed in part.
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2019 (2) TMI 1867 - ITAT PUNE
Addition under the head ‘income from house property’ on the four unsold flats/ godowns by the assessee - HELD THAT:- It is an undisputed fact that assessee is in the business of Civil Engineers, Builders and Developers and had in the closing stock the four unsold flats. It is also an undisputed fact that these four flats were vacant throughout the year under consideration and no rental income was derived by the assessee during the year.
We find that on identical issue, the Co-ordinate Bench of Mumbai Tribunal in the case of Runwal Constructions [2018 (2) TMI 1707 - ITAT MUMBAI] after considering the decision of Neha Builders (P) Ltd. [2006 (8) TMI 105 - GUJARAT HIGH COURT] the decision of Mumbai Tribunal in the case of C.R. Developments Pvt. Ltd., [2015 (5) TMI 1161 - ITAT MUMBAI] the decision in the case of CIT Vs. Ansal Housing and Construction [2012 (11) TMI 323 - DELHI HIGH COURT]and other decisions cited in the order has held that when the unsold flats which are held as stockin- trade and when the income from such unsold flats on its sale is treated as “income from business”, then no notional annual letting value in respect of unsold flats can be taxed under the head of “income from house property”.
Revenue has not brought any material on record to demonstrate that the aforesaid decision of Mumbai Tribunal in thecase of M/s. Runwal Construction (supra) has been set aside / stayed by higher Judicial Forum.
In the present case AO was not correct in bringing to tax notional annual letting value of four unsold flats under the head “income from house property”. We therefore set aside the addition made by AO. Thus, the ground of the assessee is allowed.
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