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Showing 221 to 240 of 2028 Records
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2019 (5) TMI 1808
Sanction of Amalgamation scheme - Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions were issued with respect to calling, convening and holding of the meetings of the Shareholders, Secured and Unsecured Creditors or dispensing with the same - application allowed - decided in favor of appellant.
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2019 (5) TMI 1807
Interpretation of Statute - Whether Section 14 and 238 of IBC 2016 have an overriding effect on the provision of Section 28 of SEBI Act? - HELD THAT:- Appellant states that he has no instructions to pursue the matter and submitted that he may be permitted to withdraw his Vakalatnama. Permission granted. The learned counsel is permitted to withdraw the Vakalatnama.
No one appears to press this appeal. Dismissed for want of prosecution.
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2019 (5) TMI 1806
Rectification of mistake - claim of deduction U/s 54F - Non consideration of the cited decision and the Written Submission etc. AND size of house constructed by the assessee is not relevant part allowing the deduction U/s 54F of the Act, therefore, the observation of the Tribunal in para 5 that the assessee has constructed only 18% of the land is also against the precedent cited by the assessee - HELD THAT:- Copies of the decisions relied upon by assessee are also on record of the appeal file and those decisions have some relevance on the issue of allowing the deduction U/s 54F in respect of more than one plot of land and construction of a house. Since, the Tribunal while passing the impugned order has not considered those decisions and the impugned order is completely silent about the decision relied upon by the assessee. Therefore, in our considered view there is a mistake in the impugned order to the extent of not considering the decisions relied upon by the assessee.
Constructed area - Finding of the Tribunal is not based on the constructed area but only for recording the complete facts the percentage of the construction was mentioned in the impugned order. Even the AO as well as ld. CIT(A) while allowing the deduction in respect of cost of one plot of land and construction of house has not taken the percentage of covered area as ground for disallowance. Since the decision relied upon by the assessee having relevance on the issue are not considered by the Tribunal, therefore, the said mistake is required to be rectified - Miscellaneous application is allowed.
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2019 (5) TMI 1805
The Delhi High Court allowed the exemption application and granted stay in the case. The matter was listed for completion of pleadings on 10th July 2019 and for court appearance on 29th August 2019.
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2019 (5) TMI 1804
Refund of unutilized Cenvat credit - closure of business - rejection on the ground that there is no provision for refund of Cenvat credit lying in their Cenvat credit account unutilized on closure of the business - HELD THAT:- Considering the fact that the similar issue came before this Tribunal in the case of M/S. SHREE KRISHNA PAPER MILLS AND IND. LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE AND ST., GURGAON [2018 (4) TMI 1155 - CESTAT CHANDIGARH] where it was held that At no stage, it has been questioned to the appellant that for denial of Cenvat credit which are not entitled to them. Moreover, the Revenue collected the duty from the appellant. Although the Revenue was of the view that activity undertaken by the appellant does not amount to manufacture. At the stage of filing of refund claim, Revenue cannot correct their wrong doings.
Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1803
Sanction of Composite Scheme of Merger by Absorption - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- Notices of various meetings to be served - the Applicant Companies to file Affidavit of service in the Registry proving dispatch of notices to regulatory authorities, notices to Creditors of the First, Second and Third Applicant Companies and publication of notice in newspapers.
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2019 (5) TMI 1802
The Supreme Court of India dismissed Writ Petition No. 97/2019 as withdrawn upon the petitioner's request. Writ Petition No. 564/2019 was also dismissed.
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2019 (5) TMI 1801
Transfer of a sum by the Promoter in favour of Yajur International Pvt. Ltd. (Operational Creditor) - allegation that the transfer is in violation of Section 14 of the Insolvency and Bankruptcy Code, 2016 (I&B Code) - HELD THAT:- In the present case, the question relating to supply of materials during the Corporate Insolvency Resolution Process is not required to be determined as the transfer of ₹ 1,50,70,000/- were made by Promoter in favour of M/s Yajur International Pvt. Ltd. with respect to the supplies, which were made prior to 13th June, 2018, i.e., date of order of moratorium. Admittedly, the aforesaid amount was transferred after the order of moratorium was passed on 13th June, 2018 and just before the joining of Resolution Professional, who joined on 22nd June, 2018 at 11:54 AM.
The Promoter hurriedly released the payment in favour of M/s. Yajur International Pvt. Ltd. the moment the order of moratorium passed and before the joining of the Resolution Professional - the impugned order having passed by the Adjudicating Authority, no interference is called for.
Appeal dismissed - decided against appellant.
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2019 (5) TMI 1800
Reopening of assessment u/s 147 - loss created by misusing client's code modification - HELD THAT:- AO while invoking his jurisdiction to reopen the completed assessment recorded in the reasons recorded the issue of production/suppression of iron ore by the assessee as the reason for escapement of income was for reopening the completed assessment. AO has not made any addition or disallowance on this specific issue (i.e. for production/suppression of iron ore) on the basis of which reopening was initiated. According to the Ld AR, the AO could not have proceeded to make any other addition, without making any addition/disallowance on the issue for which he based his belief in respect of the escapement of income, and for which he resorted to re-opening.
There is no whisper about the escapement of income i.e. loss created by misusing client's code modification has been mentioned in the reasons for reopening conveyed to the assessee vide letter dated 19.03.2015 no addition in respect of this can be made without making any addition in respect to the item shown to have been escaped assessment in the reasons recorded by ibid letter dated 19.03.2015. During reassessment when the AO finds that the item on the basis of which he reopened does not survive, then the reasons recorded to reopen loses its significance and the fall out is that the AO's jurisdiction to reassess is without jurisdiction and therefore is illegal and fragile in the eyes of law
Thereafter he should have dropped the reassessment proceeding there only as discussed supra. Therefore, after having no jurisdiction to reassess his further action of a new fact finding in the absence of any item specified in the reasons recorded which is the foundation on which he reopens when no longer subsists, the AO's action is hit being 'Quarum non-judice' and, therefore, the impugned addition is non-est in the eyes of law and so it has to necessarily go. Therefore, the appeal of the Revenue is devoid of any merits - Decided in favour of assessee.
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2019 (5) TMI 1799
Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The question arises whether the same claim could be made the basis for filing an application under Section 7 of the Code or it is prohibited. The question is no longer res inteara. In, Dr. Vishnu Kumar Agarwal v. M/S. Piramal Enterprises Ltd. [2019 (2) TMI 316 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], Company Appeal (AT) (Insolvency) No. 346 of 2018 decided on 08.01.2019, the Learned Appellate Tribunal held that once for same set of claim application under Section 7 filed by the 'Financial Creditor' is admitted against one of the 'Corporate Debtor' ('Principal Borrower' or 'Corporate Guarantor(s)'), second application by the same 'Financial Creditor' for same set of claim and default cannot be admitted against the other 'Corporate Debtor'.
A direction stand issued to the RP to admit the said claim as Financial Debt. This is again raised for admission in the present proceeding. Such a course obviously is not permissible in law as laid down in Dr. Vishnu Kumar Agarwal case - Petition dismissed.
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2019 (5) TMI 1798
TP Adjustment - international transaction be presumed to exist due to “excessive” AMP expenses incurred by the assessee distributor - Adjustment on protective basis - arms length calculation resorted to by the TPO on the directions of the DRP by applying the intensity adjustment is opposed in principle by the assessee as it is invalid in law and a mirror image to Bright Line Test which does not have any judicial approval - HELD THAT:- We are of the view that there is nothing in the conduct of the assessee referred to by the Revenue to show that the incurring of AMP was an international transaction and not a function of the assessee as a distributor. There is no reference to any instance of concerted action or design so as to suggest that the advertising, marketing and promotion expenses were not for the benefit of the assessee and were infact for the benefit of the AE.
In the facts as they stand, the expenses incurred for the benefit of the assessee exploiting the brand of the AE cannot be termed as an international taxation on presumptions where at best benefit to the AE may be incidental. The settled legal position as discussed at length is that the supporting facts have to be brought on record by the Revenue to discharge the onus placed on it and presumption alone that expenses are excessive by way of some arbitrary parameters which lack judicial and statutory support cannot be subscribed to. In the absence of any such fact which has been referred to by the Revenue, the presumption drawn has no legal legs to stand on and deserves to fail.
Co-ordinate Bench in the immediately preceding assessment year where Joint Venture Agreement existed between Widex A/S Denmark and Mr. T.S. Anand in the ratio of 78.43% and 21.57% wherein a similar issue was considered and the issue was stated to be covered by the assessee and contested by the Revenue.
We find that the parties were in agreement that change in shareholding pattern in the year under consideration had no impact is a position which has not been varied despite the fact that the change was pointed out by the Bench. In the facts as they stand, we then find that since the said factor is stated to be not a relevant or material fact and when considered in the context of the case laws cited and relied upon, it is seen that the assessee's claim stands addressed.
There is no material referred to whatsoever on record to show that the AMP expenses were “excessive” and thus be presumed to be an international transaction. We have also seen that the reliance placed by the assessee in the order passed by the Co-ordinate Bench in the immediately preceding assessment year is not misplaced. Accordingly, we hold that the claim of the Revenue fails on the primary threshold itself as we hold AMP expenses incurred by the assessee in the facts as they stand is not an international transaction. - Decided in favour of assessee
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2019 (5) TMI 1797
Exemption u/s 11 - denial of exemption on surplus as per Income & Expenditure A/c under the head Income from business & profession - Assessee working solely in the field of education for the deprived and under-privileged children since its inception in 1987 - assessee society has been registered u/s 12A as a charitable society and its objects and activities falls in the last limb of definition under section 2(15) i.e, advancement of any object of general public utility as the assessee society is engaged in ancillary activities which are supporting out of the school children - HELD THAT:- Merely having a surplus is not an indicator of carrying out business activities, rather the real test is the dominant and purposive test which has been satisfied in the instant case where the intention is not to earn such surplus/profits but to carry out educational activities for the benefit of underprivileged children belonging to socially and economic weaker sections of the society and as part of such activities, where such surplus is generated and used for furthence of such educational activities, the assessee society doesn’t loses its character of being charitable society engaged in educational activities.
Objects so envisioned and activities of the assessee society are directed towards education of the socially and economically under-privileged children either directly imparting education through its network of Bodhshalas or by way of collaborating/partnering with the government and other non-governmental organizations/institutions and not to earn any profits.
Incorrect to classify the objects and activities of the assessee society as objects and activities in nature of general public utility. The proviso to section 2(15) which can be invoked in case of objects of general public utility therefore doesn’t apply and thus cannot be invoked in the instant case. The consequent action of the Assessing officer in withdrawing the exemption claimed by the assessee society u/s 11 & 12 is hereby set-aside and the matter is decided in favour of the assessee society.
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2019 (5) TMI 1796
TP Adjustment - Determination of arms’ length price by the Assessing Officer / TPO / DRP for management support services received by the assessee - HELD THAT:- As decided in own case [2018 (4) TMI 503 - ITAT KOLKATA] determination of ALP for Management Support Services at Rs NIL is unwarranted and accordingly the upward adjustment made by the ld TPO
Arm’s length price for advertising , marketing and promotion (AMP) expenses - HELD THAT:- As in assessee’s own case [2018 (4) TMI 503 - ITAT KOLKATA] for assessment year 2013-14, whereby the issue of arm’s length price for advertising , marketing and promotion expenses (AMP) have been discussed and adjudicated in favour of the assessee.
Determination of arm’s length price for information technology (IT services) - HELD THAT:- As decided in own case [2017 (12) TMI 1117 - ITAT KOLKATA] is no change in facts and law and the revenue is unable to produce any material to controvert the above said findings of the Co-ordinate Bench. We find no reason to interfere in the order of the division bench and the same is hereby upheld. Therefore, respectfully following the decision of Co-ordinate Bench we allow ground raised by the assessee.
Adjustments made by the TPO on a without prejudice basis in respect of the other segments namely consumer Lifestyle Distribution, Healthcare distribution and Healthcare contract Manufacturing division - HELD THAT:- As decided in own case [2018 (3) TMI 211 - ITAT KOLKATA] issue is squarely covered in favour of the assessee.
Nature of expenses - lease rent paid in respect of motor cars - revenue or capital expenditure - HELD THAT:- As the issue is squarely covered in favour of the assessee by the decision of Co-ordinate Bench in assessee’s own case [2018 (4) TMI 503 - ITAT KOLKATA] and there is no change in facts and law and the revenue is unable to produce any material to controvert the above said findings of the Co-ordinate Bench. We find no reason to interfere in the said order of the Co-ordinate Bench and the same is hereby upheld.
Excess depreciation to the tune of 15% claimed by the company on moulds - HELD THAT:- As the issue is squarely covered in favour of the assessee by the decision of Co-ordinate Bench in assessee’s own case (2018 (4) TMI 503 - ITAT KOLKATA ( where the ITAT restored this matter back to the file of AO for fresh adjudication and the assessee is at liberty to adduce fresh evidences before the ld AO in support of its contentions ) and there is no change in facts and law and the revenue is unable to produce any material to controvert the above said findings of the Co-ordinate Bench. We find no reason to interfere in the said order of the Coordinate Bench and the same is hereby upheld. Therefore, respectfully following the decision of Co-ordinate Bench we allow ground raised by the assessee for statistical purposes.
Directions to Compute correctly DDT and grant credit for the amount of DDT paid by the assessee after appropriate verification and examination of the facts.
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2019 (5) TMI 1795
Reopening of assessment u/s 147 - Validity of reasons to believe - No sanction granted by the Commissioner u/s 151 - HELD THAT:- AO simply taking note of the ADIT(Inv.) letter has borrowed the satisfaction without independent application of mind to form reason warrant holding a belief that income chargeable to tax has escaped assessment. Just because a letter has been received from the ADIT(Inv.) the AO cannot reopen the assessment even if original assessment was u/s. 143(1) - AO based on the reasons recorded as set out above could not have initiated a fishing enquiry to find out the veracity of the information given by the ADIT(Inv.).
The reasons recorded by AO does not stand the test as laid by plethora of judicial precedence as discussed above which is sine qua non to assume jurisdiction u/s 147 therefore, we find that the reasons recorded by the AO to justify reopening the assessment u/s. 147 fails and, therefore, the very assumption of jurisdiction to reassess the assessee falls. Since the AO failed to validly assume jurisdiction u/s. 147 the assumption of jurisdiction by him to re-open the assessment itself is qorum non judice and, therefore, all subsequent action is null in the eyes of law and therefore, we quash the reopening and consequent reassessment order framed by him.
While challenging the legality of assumption of jurisdiction by the AO for reopening the assessment u/s. 147 of the Act, the assessee has also challenged the legality/validity of the approval granted by the Ld, Commissioner by only writing ‘I am satisfied’, which according to the Ld. AR, does not satisfy the requirement of law as laid in plethora of decisions, and, therefore, the approval of Commissioner since vitiated, the AO could not legally usurp the jurisdiction to reopen the assessment.
We are not satisfied with the reasons recorded by the AO to reopen because it does not satisfy the condition precedent required to usurp jurisdiction under section 147, the approval could not have been given by Commissioner. We are of the opinion that the Commissioner has mechanically accorded permission which does not satisfy due care and circumspection and application of mind supposed to be exercised by a superior authority before according approval to AO. If only he had read the report and applied the mind on the reasons recorded by the AO justifying reopening, he would not have granted the permission.
The safeguard against reopening u/s 151 of the Act has been done by the superior authority very lightly and as held by the Hon’ble Supreme court in Chugamal Rajpal [1971 (1) TMI 9 - SUPREME COURT] the authority substituted form over substance. Thus, we hold that the sanction granted by the Commissioner u/s 151 is invalid and so, the notice of the AO for reopening u/s. 148 is bad in law and has to be necessarily struck down. - Decided in favour of assessee.
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2019 (5) TMI 1794
Suppression of income - shifting of profit - Client code modification - fictitious profits/loss - assessee indulged in transferring fictitious profits/loss to the other clients/beneficiaries by misusing the client code modification facility in the F&O segment - HELD THAT:- AO has disallowed the claim of loss on the basis of the information received from the ADIT (Inv.) Unit-3, Ahmedabad without conducting any independent enquiry or to bring anything on record to show that a particular transaction of client code modification is bogus.
When the entire exercise is done by the broker and assessee is having no control over it, then in the absence of any material or fact to show the involvement of the assessee for shifting the alleged bogus loss/profit, the disallowance made by the AO is not sustainable in law.
AO has just reproduced the report of the Investigation Wing wherein general observations were made based on the investigation that some of the brokers are indulged in transferring fictitious profit/loss from one client to another client in the garb of client code modification. AO has discussed the modus operandi of the broker for doing these activities. Nothing has been brought on record to show that the assessee has done anything wrong in respect of the claim of loss of ₹ 3,12,790/- whereas the assessee has declared a gross profit of more the ₹ 3.41 crores on account of share trading. Accordingly, following the earlier order of this Tribunal in the case of DCIT vs. Gyandeep Khemka [2018 (10) TMI 1626 - ITAT JAIPUR] the disallowance made by the AO is deleted. - Decided in favour of assessee.
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2019 (5) TMI 1793
Transfer pricing adjustment - selecting comparable - HELD THAT:- This Court is of the considered view that the issue of selection of the comparables for the process of the adjustment consequent upon the transfer pricing exercise does not give rise to any substantial question of law unless the entire exercise is shown to be so perverse as to require re-determination. The Court is not satisfied that in either of the appeals any case has been made out that meets this threshold.
Consequently, this Court is not satisfied that the impugned order of the ITAT gives rise to any substantial question of law.
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2019 (5) TMI 1792
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of dues - financial debt or not - Possession of secured properties - time limitation - HELD THAT:- Records available shows that the respondent has not cared to reply the notice issued by the applicant. The amount due to the Financial Creditor from the Corporate Debtor is a financial debt.
In view of the Judgment of the Hon'ble National Company Law Appellate Tribunal, in case of M/S. rnnoventive Industries Ltd. Vs. ICICI Bank & Anr., [2017 (9) TMI 58 - SUPREME COURT], this Adjudicating Authority has to satisfy whether a default has occurred; whether the Application is complete; and whether any disciplinary proceeding is pending against the proposed Insolvency Resolution Professional.
In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the Corporate Debtor committed default in paying the financial debt to the Applicant and the respondent company has acknowledged the debt. As can be seen from the Written Communication of the proposed Insolvency Resolution Process, no disciplinary proceedings are pending against him - In the instant case, the documents produced by the Financial Creditor clearly establish the 'debt' and there is default on the part of the Corporate Debtor in payment of the 'financial debt'.
There is existence of default and that the application under Section 7(2) of the Code is also complete in all respect.
The petitioner/financial creditor having fulfilled all the requirements of Section 7 of the Code, the instant petition deserves to be admitted - Application admitted - moratorium declared.
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2019 (5) TMI 1791
Enhancement made by CIT(A) - Assessment by entering into a new source of income - power of enhancement conferred on the ld. CIT(A) - HELD THAT:- CIT(A) has no power to enhance the assessment by introducing a new source of income which is not mentioned in the return of income by the assessee or considered by the Assessing Officer in an order appealed against and must confine himself only to those items of income which were the subject matter of the original assessment. Applying the propositions of law to the facts of this case, I have to agree with the submissions made by the ld. Counsel for the assessee. CIT(A) proposed to enhance the assessment by entering into a new source of income. Hence the enhancement is hereby cancelled.
Disallowance u/s 14A - HELD THAT:- Following the judgment in the case of Commissioner Of Income Tax vs M/s Ashika Global Securities Ltd [2018 (7) TMI 1425 - CALCUTTA HIGH COURT] hold that no disallowance can be made u/s 14A of the Act, when there is no exempt income earned by the assessee during the year.
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2019 (5) TMI 1790
Classification of manufactured goods - Micronutrient Mixtures, Plant Growth Promoters and Bio-Fertilizers - Area Based Exemption - benefit of N/N. 50/2003-CE dated 10.06.2003 - HELD THAT:- The Revenue is not disputing the fact that the appellants factory is located in Rudrapur where area based exemption notification no.50/2003 is available. The said notification is in respect of all the manufactured products in the factory located in that area except the products specified in the negative list. Inasmuch as, Heading 31.02 to 31.05 fall under the negative list, the revenue by classifying the product under tariff heading 31.04 held that the appellant is not entitled to the said area based exemption notification.
Time Limitation - HELD THAT:- The entire facts were placed by the appellant before their jurisdictional Central Excise Authorities which stands examined, verified and accepted by them. As such, it cannot be said that there was any suppression or misstatement on the part of the appellant with intent to evade payment of duty. In the absence of any evidence to the contrary, the bonafide of appellant cannot be doubted. Consequentially, the extended period could not available to the revenue - As such, the demand falling beyond the normal period of limitation is set aside along with setting aside the penalty imposed upon the appellant.
Appeal allowed by way of remand.
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2019 (5) TMI 1789
Clandestine manufacture and removal - cross-examination of witnesses - Section 9D (1) of Central Excise Act, 1944 - demand on the basis of mere assumptions and without there being any tangible evidence relating to excess consumption of raw material, seizer of unaccounted goods, sale of goods to identified customers or cash related to clandestine removal - HELD THAT:- It is not established beyond doubt that the said 62 loose papers were recovered from the possession and control of the appellant, in view of the deposition during cross examination. It emerged through cross examination that said papers were brought from outside at around 02:00 PM. Further, said 62 pages cannot be relied upon as evidence because as per record they were recovered from the possession of Shri Surendra Prasad and statement of Shri Surendra Prasad is not admissible evidence in terms of Section 9D (1) of Central Excise Act, 1944, because Shri Surendra Prasad was not cross examined.
The evidence which was relied upon for dropping of the demand of around ₹ 31,99,818/- was the evidence relied upon for confirmation of demand of ₹ 3.16 crores and thus there is contradiction in the impugned order - Appeal allowed - decided in favor of appellant.
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