Try our new portal www.taxtmi.com for a better experience!

Home

Case Laws

Home Case Index All Cases Income Tax Section Wise 2017 2017 (8) This

Law
Court
Citation	- -
Landmark
Order by

Advanced Search Options

Case Laws

Showing 221 to 240 of 1742 Records

2017 (8) TMI 1525

Corporate insolvency process - delay in giving possession of flat by builder - cancel the allotment and refund agreed by builder but not initiated - who can claim to be an 'Operational Creditor' - whether a person who has entered into agreement for purchase of a 'flat' or 'shop' or 'any immovable property' is Operational Creditor or not? - whether appellants are 'Operational Creditor' and are entitled to initiate Corporate Insolvency Resolution Process against Respondents - 'Corporate Debtor' under Section 8 and 9 of the 'I & B Code? - HELD THAT:- The letter of allotment is not an agreement to sell and the terms condition aforesaid is conditional as the question of default will arise, once 'Corporate Debtor' receives the notice of cancellation from the allottee(s) and if the amount is not paid.
Apart from the fact that the appellants are merely an allottee of a flat and does not come within the meaning of 'Operational Creditor,' as held by the Learned Adjudicating Authority, there appears to be a variation in their claim amount, though the notice under Section 8 and 9 or application under Section 9 has not been filed.
The appellants initially claimed that they are entitled for refund of total amount. deposited by them after one year, the flat having not completed within time along with 19% interest. But before the Tribunal the appellants claimed total amount along with 18% interest. On the other hand, as per the Allotment Letter at paragraph 3(b), the allottee is entitled to get refund of amount, subject to deduction of 15% of the total cost on receipt of allottees(s) application for cancellation. At paragraph 3(d) of the letter of allotment has further mentioned that if the amount paid by the allottee(s) is less than the amount deducted under (a) above, the allottee shall pay to the Company, deficient amount to the extent of 15% as mentioned therein. Thus we find there is a variation of claim amount i.e. the amount of debt alleged to have been defaulted by the respondent.
While we hold that the appellants are not 'Operational Creditor', we also hold that there is confusion about the actual amount of default of debt and the date of notice for cancellation forwarded by appellant, the petition under Section 9 is fit to be rejected.
2017 (8) TMI 1524

Corporate Insolvency Resolution Process - existence of admitted debt - Whether the Petitioner complied with requisite provisions of Sec 9 of IBC 2016 to maintain the petition? - HELD THAT:- The record do not show that there is any dispute of debt before issuing demand notice to pay the debt 'in question. All the contentions with regard to dispute/counter claim /arbitration are after thought that too after receiving the demand notice issued by the petitioner. Therefore, the facts prima facie show that there is an admitted debt and the respondent is unable to pay debt in question.
The Respondent, though given sufficient time by this Tribunal to come out with any solution to resolve outstanding dues, have not come with any solution,more over they have raised un-tenable and baseless grounds. In fact, the respondent has admitted that they are unable to clear outstanding due to several difficulties. Though circumstances warrant that the Company is liable to be liquidated, an effort should be made through CIRP to find any possibility of any resolution. Hence, it is a fit case for admission.
In the result the Company Petition is admitted by exercising the powers UIS 9(5)(i) IBC 2016
2017 (8) TMI 1523

Denial of natural justice - Insolvency procedure - no opportunity to file a written objection or a written document disputing or dealing with the claim put forward by the petitioner in the proceedings before the NCLT - HELD THAT:- The respondent no.3 had applied under Section 9 of the Code of 2016. Sree Metaliks Limited (2017 (4) TMI 1248 - CALCUTTA HIGH COURT) is of the view that NCLT has adhere with the principles of natural justice. The respondents before the NCLT is entitled to one opportunity of hearing. Hearing would include an opportunity to file a written objection to the application as a party is heard on the basis of the pleadings before the adjudicating authority.
NCLT ought to have granted the petitioner one opportunity to file written objection. Such opportunity was not extended to the petitioner before me. There is an apparent breach of the principles of natural justice in the conduct of the proceeding by the NCLT. There can be an occasion when the NCLT may be required to admit the petition and pass an ex-parte ad-interim order. It can do so for the reasons recorded in writing. NCLT may deny a respondent the opportunity to file a written objection. Again the NCLT has given reasons for the same. Denial of such opportunity should be limited to rare cases.
The order passed by the NCLT is appealable. The existence of statutory alternative remedy is not an absolute bar to the maintainability of writ petition, if the writ petitioner is able to demonstrate and substantiate that, there is a breach of fundamental right or that there is breach of principles of natural justice or that the authority has acted without jurisdiction. In the present case, it appears that the NCLT has acted in breach of the principles of natural justice. The impugned order does not contain any reason as to why the petitioner was not allowed an opportunity to file its written objection.
In such circumstances, it would be appropriate to set aside the impugned order dated July 31, 2017.
As the petitioner submits that, his client will file the written objection to the application under Section 9 of the Insolvency and Bankruptcy Code, 2016 within seven days from date. In such circumstances, the petitioner is allowed to do so.
2017 (8) TMI 1522

Jurisdiction - power of Commissioner of Customs (Prev.) Jodhpur to issue SCN - Competent authority or not - Held that:- The similar issues have been dealt with in various cases by the Tribunal recently - It is held that the matters have to be remanded back to the original authority for a decision after the legal issue is settled by the Hon’ble Supreme Court in the case of Mangli Impex vs. Union of India [2016 (5) TMI 225 - DELHI HIGH COURT] - matter remanded for fresh consideration.
2017 (8) TMI 1521

SSI Exemption - dummy units - exemption denied on the ground that there was cash flow among the firms - Held that:- The private limited company was not engaged in the manufacturing of the same item but was engaged in only trading. So, its income cannot be clubbed with the appellant.
Regarding the remaining two firms, it appears that their manufacturing premises were separate and separate bills were issued for goods. However, the office is in common building/premises. The cash flow was there among the firms without payment of any interest but the same was properly adjusted in the returns. All the firms have filed independent income tax assessments and as well as indirect taxes returns which were accepted by the Department - It may be mentioned that the Tribunal in the case of Alpha Toyo Ltd. v. CCE, New Delhi, [1994 (3) TMI 203 - CEGAT, NEW DELHI] observed that even though there is a common management control and common Directors and finance of the firm lies with the main unit, SSI exemption cannot be denied - SSI benefit cannot be denied on this ground.
Appeal allowed - decided in favor of appellant.
2017 (8) TMI 1520

Imposition of Penalty u/s 114A of CA, 1962 - case of appellant is that imposition of penalty is not proper and justified inasmuch as Section 28 ibid has not been invoked for confirmation of the duty demand - whether, in absence of determination of the duty liability by the proper officer, which was not levied or short-levied by reason of wilful misstatement or suppression of fact etc., can the provisions of Section 114A ibid be invoked for imposition of penalty?
Held that:- As per section 114A, imposition of penalty is subject to the condition that there must be determination of the duty liability under Section 28 ibid by the proper officer, which according to him, has been short-levied or non-levied, owing to the reason of suppression, etc. - In this case, it is an admitted fact on record that the original authority has not determined the duty liability on account of short-levy or non-levy of duty in terms of Section 28 ibid. Rather, in terms of non-fulfilment of the conditions of the bond executed by the appellant, the penalty has been imposed under Section 114A ibid - Since there is no adjudication or determination of duty in terms of Section 28 by the proper officer, as per the mandates of Section 114A ibid, no penalty can be imposed on the appellant.
Penalty not warranted - appeal allowed - decided in favor of appellant.
2017 (8) TMI 1519

Acquisition of the land and its allotment to IISCO - lease agreement - cancellation of lease as a result of breach of the conditions of lease - the leasehold land was transferred without the knowledge of lessor - renewal of lease - conversion of leasehold property into freehold property.
Held that:- The present case is indeed an illustration of a situation where a public body has acted oblivious to and in disregard of public interest. The land was originally leased out to IISCO, a subsidiary of SAIL (an undertaking of the Government of India). The purpose for allotting such a large tract of land admeasuring 43,407 square meters was to enable IISCO to construct and develop a residential colony for its employees. The land was not being allotted for commercial exploitation to a developer. The terms of the lease clearly evince the manner in which the land was to be utilized and the consequences of breach. When IISCO went into liquidation, the Official Liquidator placed its assets including the leasehold land for sale. Ajar under the deed of assignment acquired the leasehold rights for the remaining term of the lease on 1 September 2005 together with the rights and benefits arising out of the original lease of 16 July 1985. The Calcutta High Court had clearly and expressly observed, while rejecting UDA's claim of forfeiture and re-entry, that the transfer was of the residual term of seven years and that if UDA did not intend to renew the lease, the land would revert to it.
There was no absolute or indefeasible right to renewal either in IISCO or in Ajar, which succeeded to the leasehold interest. As a matter of fact, when UDA decided to renew the lease, it was duty bound to evaluate all aspects bearing upon the public interest which included (i) the purpose for which the land was granted under the original lease agreement; (ii) the extent to which the purpose had been fulfilled; (iii) whether the original purpose underlying the grant of the land would be subserved by the renewal sought by a commercial developer; (iv) the market value of the land; (v) the revenue which would be generated for the activities of UDA if the land would be transferred on commercial terms that would realise the best price. UDA choose to blink at its obligations by conferring a largesse on Ajar. It did so on the hypothesis that after the Calcutta High Court had rejected its objections to the assignment of the leasehold interest, it was precluded from doing anything other than to renew the lease.
Fraud, it is well-settled unravels everything. The subsequent conversion of the land to freehold in September 2013 cannot enure to the benefit of Ajar since the underlying basis of the entire transaction stands vitiated by fraud. There can be no manner of doubt about the principle which accepts the sanctity of contracts. Equally, no court can be a hapless spectator when a public authority forsakes the trust with which valuable resources such as land under its control are impressed. Land is a scarce public resource. When public bodies are vested with control over land-in this case over land which was acquired for facilitating planned development, no authority can claim an immunity from its accountability to matters of public interest.
We will not interfere with the direction of the High Court to the effect that the transfer charges for the deed of assignment of lease shall be determined on the basis of the guidelines prevailing in 2011-2012. The relevant date would have to be 7 June 2011 on which the deed of assignment was executed by UDA.
The rights which have been created in favour of third party purchasers of plots through the execution of registered sale deeds prior to the date of the judgment of the High Court shall not be disturbed - UDA shall through its Chief Officer verify the correctness of the statement submitted by Ajar that it has executed sixty seven registered sale deeds in respect of individual plots prior to the judgment of the High Court. This shall be completed within one month with notice to the individual purchasers and Ajar. The benefit of direction (i) above shall only extend to those cases found to be genuine on verification - in respect of third parties (other than i above) with whom there are no registered sale deeds, Ajar shall refund the consideration paid by the respective purchasers within a period of three months together with interest at the rate of nine percent computed from the date on which payments were received.
Judgement of High Court affirmed - appeal disposed off.
2017 (8) TMI 1518

Valuation - inclusion of trading items which were bought out items by the appellant in the assessable value - Held that:- In the instant case, these items, which were bought out, are totally independent and optional. These are not even the accessories as stated by the Ld. Counsel for the appellant during the course of argument.
In the instant case, it is admitted position that the assessee supplied the bought out items to the buyers only to ask for. In such a situation, the assessee buys the aforesaid components/items from the market and supplied to the buyers on their option - Hon’ble Supreme Court in the case of Commr. of Central Excise, Trichy v. Neycer India Ltd. [2015 (5) TMI 494 - SUPREME COURT], observed that the value of the bought out items cannot be included in the assessable value of own manufactured goods under Section 4 of the Central Excise Act, 1944.
Impugned order do not sustain - appeal allowed - decided in favor of appellant.
2017 (8) TMI 1517

Benefit of N/N. 6/2002-C.E., dated 1-3-2002 - ‘power cables’ manufactured by the appellant - Held that:- It appears that the subject items viz., control cable (which is also called ‘power cable’) which are meant for control application (Supervisory Control and Data Acquisition - SCDA in modern wind power plant); and therefore, would be covered in Column 3 of the Table annexed to the Notification No. 6/2002-C.E., dated 1-3-2002 read with Sl. Nos. 13 and 21 of the List 9 appended thereto - In this regard, the CBEC (Central Board for Excise and Customs, New Delhi) has also issued a Clarification F. No. 201/08/2015-CX.6, dated 20-10-2015 whereunder in its Clause (iii) reference has been made to the clarification given by the Ministry of New and Renewable Energy, which states that wind turbine controller, nacelle controller and control cables are parts of Wind Operated Electricity Generators, which have been mentioned at Sl. No. 13 of List 9 read with Sl. No. 237 of the Table Annexed to the Notification No. 6/2002-C.E., dated 1-3-2002.
When the Ministry of New and Renewable Energy has clarified to CBEC, as mentioned in the CBEC Circular dated 20-10-2015 referred above that control cables are parts of Wind Operated Electricity Generators, there cannot be any doubt that subject items are entitled to the benefit of Notification No. 6/2002-C.E., dated 1-3-2002.
Benefit allowed - appeal allowed - decided in favor of appellant.
2017 (8) TMI 1516

Maintainability of application before Settlement Commission - Security Agency Services - short-payment of service tax during the period of 2010-11 to 2014-15 in spite of collection of Service Tax from their clients - Section 14 of the Central Excise Act, 1944 read with Section 83 of the FA, 1994 - extended period of limitation - Held that:- Bench notes that the application was filed by the applicant on 10-3-2017 and the order-in-original was also dispatched on the same day i.e. 10-3-2017 - As per provisions of Section 32E as made applicable to Service Tax matters vide Section 83 of the Finance Act, 1994, an assessee may make an application in respect of a case to settlement commission before adjudication of case.
An order of adjudication is made on the date on which adjudicating authority dispatched it to the assesse - The SCN in question was adjudicated on 10-3-2017 when the order was dispatched by speed post. The settlement application was also filed on 10-3-2017 when the case is already adjudicated. In this case application filed upto 9-10-2017 can be considered as filed before adjudication.
The application is not maintainable in terms of Section 32E(1) of the Central Excise Act, 1944 and the same is liable to be rejected on this ground alone without going into the merits of the case.
2017 (8) TMI 1515

Vires of Rule 8 (3A) of the Central Excise Rule, 2002 - Default in payment of Central Excise duty - imposition of penalty on the petitioner on the basis of Rule 8(3A) of the Rules, 2002 - Held that:- As held in Indsur Global Ltd. [2014 (12) TMI 585 - GUJARAT HIGH COURT] has held that "without utilising Cenvat credit" used in sub Rule (3A) of Rule 8 of the Central Excise Rule, 2002 is invalid. The revenue cannot take a stand contrary to that obtaining in other High Courts - Rule 8(3A) of the Central Excise Rules to the extent as indicated in Indsur Global Ltd. [2014 (12) TMI 585 - GUJARAT HIGH COURT] is declared to be invalid.
Whether the petitioner can benefit out of the declaration of invalidity of such Rule 8(3A) in the facts and circumstances of the present case? - Held that:- Indsur Global Ltd., on which learned advocate for the petitioner places heavy reliance, notices that, the petitioner before Their Lordships had caused 170 days delay in preferring an appeal though the statutory alternative mechanism was available to it. Their Lordships did not grant any monetary relief flowing out of the declaration of Rule 8(3A) to be invalid. The petitioner is not entitled to any relief in the present proceeding.
Petition disposed off.
2017 (8) TMI 1514

Method of Valuation - Section 4 or Section 4A of CEA - imported goods, Electrical Accumulators - classifiable under 85.07 are to be assessed to CVD on the transaction value, in terms of Section 4 of the Central Excise Act, 1944 or in terms of Section 4A on the basis of MRP declared on the packages containing such batteries - Held that:- Under Section 4A of the Central Excise Act, the Government has notified various commodities which are necessarily to be assessed under MRP after granting abatements as specified in the notification. On perusal of the notification issued during the relevant time, we note that parts, components and assemblies of automobiles, are specified in the notification and are required to be assessed on MRP basis.
C.B.E.C. has clarified the issue vide their Circular No. 167/38/2008-CX-4 dated 16-2-2008 to the effect that batteries used for automobile purposes should be assessed under Section 4A ibid.
In the present case, appellant has cleared such goods by declaring the same for assessment under Section 4 and paid Customs duty at lower rate under Section 4 ibid - the valuation needs to be done u/s 4A - appeal dismissed - decided against appellant.
2017 (8) TMI 1513

Penalty on CHA u/s 112(a) of the Customs Act, 1962 - Misdeclaration of MRP/RSP for the said goods - Held that:- In any case, on the very same set of facts proceedings have been initiated against the appellant under CBLR, 2013. The said proceedings concluded by the order dated 19-4-2016 issued by Commissioner of Customs (General), New Delhi - in view of categorical finding of the Licensing Authority on the activities of the appellant, which are on the same set of facts involving the same importation, penal action under Section 112(a) of the Customs Act is not legally sustainable.
There is no justification for a penal proceedings against the appellant resulting in penalty under Section 112(a) of the Customs Act, 1962 - appeal allowed - decided in favor of appellant.
2017 (8) TMI 1512

Valuation of imported goods - Ethyl Alcohol - rejection of declared value - enhancement of declared value - Rule 10A of the Customs Valuation Rules, 1988 - only basis on which in the present proceedings, such a course of action was taken is that there were certain imports through Mumbai Port which had a value higher by 7.6% - Held that:- The original authority did not elaborate the reasons for resorting to provisions of Rule 6. He has not addressed the submissions of the appellant regarding the contract being entered into in June, 2004 itself. A variation of about 7% spread over a period of over four or five months cannot per se lead to a conclusion that the imported goods are undervalued. Additional corroborative evidences are required in such situation to reject the transaction value and to re-determine the same - In the present case, there is no discussion or finding at all, on this valuation aspects - Appeal allowed - decided in favor of appellant.
2017 (8) TMI 1511

Disallowance of interest expenditure - whether assessee had not even attempted to show that the investments in sister concerns served any business purpose? - Held that:- Issue concluded by the decision passed by this Court in The Pr. Commissioner of Income Tax (Central), Ludhiana v. Shri Satish Bala Malhotra, Legal Heir of Shri Ashok Kumar Malhotra, Prop. M/s Modern Publishers, MBD House, Railway Road, Jalandhar [2017 (4) TMI 1330 - PUNJAB & HARYANA HIGH COURT] whereby the questions have been decided against the revenue.
Disallowance of deduction u/s 80-IC made by the AO on the job work got done outside the specified area, i.e. Himachal Pradesh and on the trading receipt from sale of unused papers - Held that:- The matter is remanded to the Tribunal for fresh adjudication on Question No. (iii) after affording an opportunity of hearing to the parties.
2017 (8) TMI 1510

Reopening of assessment - notice issued after the expiry of the extended period of limitation of six years - whether merely signing of notice on a particular date cannot be equated with the date of issuance of the notice as contemplated u/s 149? - "issue of notice" and "service of notice" - Held that:- As the notice was signed on 31.03.2016 and was handed over the the postal authorities for effecting service upon the petitioner on 01.04.2016 as per the track report of the India Post. There is no evidence otherwise on record to establish that the notice was handed over to the post office for effecting service upon the petitioner on 31.03.2016.
In view of the aforesaid facts and circumstances of the case, we hold that the notice u/s 148 of the Act was issued to the petitioner beyond the last date of limitation prescribed and as such, is barred by time. - Decided in favour of assessee
2017 (8) TMI 1509

Exemption u/s 11 - benefit of carry forward of the deficit for future set-off denied - Held that:- There is no error on the part of the CIT(A) in following the decision of the Hon'ble Bombay High Court in the case of Institute of Banking Personnel Selection [2003 (7) TMI 52 - BOMBAY HIGH COURT] as well as the decision of the Tribunal in assessee’s own case [2013 (9) TMI 1229 - ITAT MUMBAI] and allowing the stand of the assessee.
2017 (8) TMI 1508

Levy of penalty u/s 271(1)(c) - Application of independent mind by the AO on the issue of furnishing of inaccurate particulars or concealment of income - Launching of prosecution against the assessee.
Appeal admitted.
Once we have admitted the Appeal on substantial questions of law, we do not think that there is any justification for the Deputy Commissioner of Income Tax, Central Circle8( 1) to threaten the appellant/applicant with any prosecution. Even if such prosecution is launched, the same shall not proceed till the pendency of this Appeal.
2017 (8) TMI 1507

Constitutional validity - test of Article 14 - scope of medical profession of doctors - vires of West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017 - maintainability of writ petition - scope of relief sought for / prayed for - whether the provisions of the act are arbitrary, unreasonable and irrational - Held that:- The prayer portion of the writ petition is not happily drafted. A member of the public would not be committing sacrilege, if such member was to observe that, the prayers made in the writ petition under consideration, imitates the level of diligence and care, the public have become accustomed to receive from the medical practitioners in the present day. However, it would be harsh to return a finding that, the writ petition is not maintainable as the prayers are not happily drafted.
Even if the Court is to consider the challenges to the various provisions of the Act of 2017, notwithstanding the prayers as it stands in the writ petition, the Court would not be guilty of travelling beyond the pleadings.
A medical consultation clinic will be used solely for the purpose of consultation and advice. The Act of 2017 does not take away the choice of an individual doctor to carry on its profession as a doctor and have a medical clinic or a medical consultation clinic. If a doctor is required to treat a patient in the course of consultation and advice, such a place would be considered as a medical clinic coming within the definition of clinical establishment under Section 2(c) of the Act of 2017 requiring such doctor to take a registration under the Act of 2017.
Requirement to undergo a registration under the Act of 2017 by itself does not infringe or take away the right to carry on one's profession guaranteed under Article 19(1)(g). The right guaranteed under Article 19(1)(g) is not absolute and can be subjected to reasonable restrictions.
The Act of 2017 does not militate against the right of the doctor to recover the reasonable and appropriate cost for the treatment advanced. It has been suggested that, the various provisions of the Act of 2017 which permits a service recipient to receive the service first and pay later will give rise to a situation where a service provider would not be in a position to recover the cost. With respect, such a view is contrary to the oath of a doctor. Moreover, the Act itself provides that, a doctor will be entitled to recover the costs from the service recipient or their representatives. What it essentially seeks to do is, address the malpractices obtaining in the health care sector.
It can be said that the Act of 2017 is within the legislative competence of the State Government to legislate.
2017 (8) TMI 1506

Classification of imported goods - External Hard Disc Drives - benefit of N/N. 12/2012-CE dated 1.3.2012 Sl. No. 225 - Department was of the view that removable or exchangeable disc drives do not fall under the classification of 84717020 and these goods are classifiable under CTH 84717030 and therefore is not eligible for the benefit of the notification - Held that:- The issue whether the imported goods are classifiable under CTH 84717020 has been analyzed and discussed in the case of CESTAT, Delhi in M/s. Supertron Electronics Pvt. Ltd. [2017 (1) TMI 1529 - CESTAT NEW DELHI], where it was held in favor of respondent by classifying the goods under CTH 84717020 and the benefit of the notification was extended to the respondents - appeal dismissed - decided against Revenue.