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Showing 261 to 280 of 2028 Records

• 2019 (5) TMI 1768
  

  Reopening of assessment u/s 147 - non dealing with the objections of the assessee as argued by assessee - Disallowance of expenditure claimed for issuance of FCCBs - HELD THAT:- In the course of re–assessment proceedings, though, the assessee had raised objections challenging the validity of re–opening of assessments under section 147 of the Act, however, the Assessing Officer has not disposed of the objections independently by way of separate orders before completion of assessment proceedings under section 143(3) r/w 147 of the Act. The Hon'ble Supreme Court in GKN Driveshafts India Ltd. [2002 (11) TMI 7 - SUPREME COURT] has held that before completion of the assessment, the Assessing Officer is duty bound to dispose of the objections of the assessee separately. Therefore, the Assessing Officer in the instant appeal has not followed the due judicial process while dealing with the objections of the assessee. For that reason, the impugned assessment orders are legally unsustainable.

  Whether in such circumstances, the re–assessment orders passed have to be quashed as void ab initio or they are to be restored back to the Assessing Officer for enabling him to dispose of the objections of the assessee and pass fresh assessment orders? - In our view, the issue is no more res integra in view of the decision of the Hon'ble Jurisdictional High Court in KSS Petron Pvt. Ltd. [2016 (10) TMI 1112 - BOMBAY HIGH COURT] High Court has held that if the re–assessment order is passed without disposing of the objections raised by the assessee, they have to be quashed and no second opportunity can be given to the Assessing Officer to pass fresh assessment orders after disposing of the objections of the assessee. No infirmity in the orders passed by learned Commissioner (Appeals) in holding the assessment orders passed to be legally unsustainable. -Decided against revenue.

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• 2019 (5) TMI 1767
  

  Suppression of closing stock - difference in the value of closing stock shown in the books of accounts as on 31st March 2009 viz a viz value of the stock furnished to the bank as on 31st March 2009 - Sole basis of making the impugned addition was the stock statement furnished to the bank - HELD THAT:- The stock shown by the assessee in its books of accounts is the result of purchases and sales made during the year under consideration. As such, we are of the view that the value of the closing stock cannot be disturbed without pointing out any defect in purchases and sales. There was no whisper about any defect/infirmity in the books of accounts of the assessee by the AO. Therefore we are of the considered opinion that no addition on account of such difference to the total income of the assessee is warranted. Hence we uphold the finding of the learned CIT-A. Thus the ground of appeal of the Revenue is dismissed.

  Inflated current liabilities in the books of account - excessive sundry creditors in the books of accounts - HELD THAT:- AO in respect of the above items of the current liabilities has not pointed out any defect during the assessment proceedings. In our considered view the AO before making any reliance on the statement furnished to the bank was to point out the defects/infirmities in the current liabilities and the provisions shown by the assessee in its balance sheet. We also note that the learned CIT (A) has given a finding that the creditors shown by the assessee in its books of accounts exist in the books of accounts. The learned DR for the Revenue has not disputed this finding of the learned CIT (A). In view of the above, we do not find any reason to disturb the finding of the learned CIT (A). Hence the ground of appeal of the Revenue is dismissed.

  Cession of liability u/s 41(1) - AO during the assessment proceedings noticed that the assessee has not entered into a transaction with certain sundry creditors in the last three years - HELD THAT:- Liabilities as discussed above were not written off in the books of accounts of the assessee. Accordingly, in our considered view, the same cannot be treated as income under the provisions of section 41(1) of the Act on account of the cessation of liabilities.. In the present case also, the liabilities were not written off by the assessee in its books of accounts. Therefore we are of the considered opinion that no addition on account of the cessation of liabilities to the total income of the assessee is warranted. Hence we uphold the finding of the learned CIT-A. Thus the ground of appeal of the Revenue is dismissed.

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• 2019 (5) TMI 1766
  

  Valuation of imported goods - undervaluation - mis-declaration of description of goods - the consignment was found mainly of rags, though some part of the consignment was found to be of worn clothing, which was not ordered by the appellant importer - HELD THAT:- The goods which are declared for less than ₹ 1 lakhs, have been valued more than ₹ 10 lakhs, i.e. the value has been increased 10 times approximately. In this view of the matter, it is found that the appellant has already suffered differential duty of ₹ 1,18,000/- and also suffered demurrage charges of ₹ 2,26,000/- (approximately), including the warehousing charges, as the goods were subject to 100% checking on first check basis after destuffing the container - in the interest of justice, redemption fine of ₹ 2,50,000/- is reduced to ₹ 1,00,000/- and penalty under Section 112 (a)(i) is reduced from ₹ 1 lakh to ₹ 25,000/-.

  Appeal allowed in part.

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• 2019 (5) TMI 1765
  

  Conclusion of proceedings - Seizure of goods - clandestine removal - pursuant to search and inquiry made at the premises of the appellant, the appellant accepted to pay the tax as calculated by Revenue alongwith interest and penalty in terms of Section 11AC (1)(d) of Central Excise Act - HELD THAT:- The dispute with regard to seizure portion and alleged clandestine clearance stands settled on 23.08.2018, as intimated by Revenue, pursuant to payment of duty, interest and penalty, both for the alleged clearances and also for the goods found and seized. In this view of the matter the impugned order is non est in the eyes of law.

  Appeal allowed - decided in favor of appellant.

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• 2019 (5) TMI 1764
  

  Levy of Service Tax - Commercial and Industrial Construction service - appellants are receiving advances in respect of sale of property, prior to 01/072010 - HELD THAT:- Identical case decided in the case of Sun Builders [1772520] where it was held that Such works contracts involving transfer of immovable property were brought within the purview of taxable service by adding explanation to Section 65(105)(zzzh) w.e.f. 1-7-2010, and therefore, it has to be held that such contracts were not covered by Section 65(105)(zzzh) during the period prior to 1-7-2010.

  In the instant case, the period involved for demanding is from 2004-2005 to 2007-2008 which is prior to the amendment made in the Finance Act, 2010 with effect from 01/07/2010 - demand do not sustain - appeal allowed - decided in favor of appellant.

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• 2019 (5) TMI 1763
  

  Levy of Service tax - Construction of Complex service - receipt of certain amounts from the prospective buyers of the shops, during the period of construction - period involved is prior to 01.07.2010 - HELD THAT:- The issue involved is identical to the issue involved in the case of M/S KRISHNA HOMES VERSUS CCE, BHOPAL AND CCE, BHOPAL VERSUS M/S RAJ HOMES [2014 (3) TMI 694 - CESTAT AHMEDABAD]. In the said decision, the Tribunal examined the amendment made to the Finance Act and also the decision of the Hon'ble Apex Court in the case of M/S. LARSEN & TOUBRO LIMITED & ANOTHER VERSUS STATE OF KARNATAKA & ANOTHER [2013 (9) TMI 853 - SUPREME COURT] where it was held that Such works contracts involving transfer of immovable property were brought within the purview of taxable service by adding explanation to Section 65(105)(zzzh) w.e.f. 1-7-2010, and therefore, it has to be held that such contracts were not covered by Section 65(105)(zzzh) during the period prior to 1-7-2010.

  In the instant case, the entire period involved is prior to 01.07.2010 and thus, following the ratio laid-down by the Tribunal in the case of Krishan Homes, the impugned order is set aside - appeal allowed - decided in favor of appellant.

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• 2019 (5) TMI 1762
  

  Violation of Takeover Regulations - sale of the shares of the target Company exceeded two percent of the share capital of the target Company and target Company failed to make the disclosure to the stock exchange as contemplated under Regulation 7(1A) of the Takeover Regulations - inter-se transfer of shares from Appellant no.6 for violating Regulation 3(3) read with Regulation 3(4) - HELD THAT:- Sale made by the appellants which aggregated two percent or more of the share capital of the target Company was required to be disclosed by the acquirer/appellants of the target Company within two days under Regulation 7(1A). Thus, for non-disclosure of the sale of shares the appellants have violated the provisions of Regulation 7(1A).

  Appellants cannot be faulted and penalised on this score at this stage. They have a decision in their favour in the case of Ravi Mohan [2016 (3) TMI 93 - SECURITIES APPELLATE TRIBUNAL MUMBAI]which is still valid till date and has not been set aside by a superior forum. Further, the respondent SEBI has accepted the decision of this Tribunal in the case of Ravi Mohan (supra) which can be seen from the fact that a similar provision, namely, Regulation 29 of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 was amended after Ravi Mohan’s decision was given by this Tribunal in 2015.

  Even though we do not agree with the ratio of the decision in Ravi Mohan’s case, nonetheless, the said decision having been accepted by SEBI, the appellant in the instant case cannot be penalized for violation of Regulation 7(1A) read with Regulation 7(2). The imposition of penalty by the Adjudicating Officer on this score cannot be sustained.

  Even though there is no increase in the percentage of shares or voting power amongst the promoter groups, nonetheless, the percentage of shareholding of individual shareholder is required to be intimated under Regulations 3(3) and 3(4). Not intimating the authorities under Regulations 3(3) and 3(4) leads to a violation of the said provisions. Thus, the imposition of penalty by the Adjudicating Officer on this score needs no interference. In the light of the aforesaid, since Appellant no.6 also failed to disclose the sale of its shares to Appellant no.7, the imposition of penalty is justified and needs no interference.

  A sum of ₹ 2 lakhs was imposed upon the Appellant no.8 for failure to disclose the promoters holding in the annual return for the financial year 2010-11 for apparent violation of Regulation 8(3) - every Company is required to make yearly disclosures in respect of the promoters holding of the Company. The said disclosure is required to be made within thirty days from the financial year ending 31st March. In the instant case, there was a delay of 11 days and, on account of the delay, a penalty of ₹ 2 lakhs has been imposed. The contention of the appellant that they had furnished the disclosure before 31st March but since the information furnished was incorrect the rectified information was submitted within 11 days thereafter and, therefore, there was no concealment of furnishing of information. The contention of the appellant cannot be accepted in as much as the penalty has been imposed not for furnishing incorrect information but the penalty has been imposed for the delay in furnishing the information. Consequently, we do not find any error in the imposition of penalty upon Appellant no.8 for violation of Regulation 8(3).

  Appeal is partly allowed. The imposition of penalty of ₹ 15 lakhs for violation of Regulation 7(1) and 7(2) is quashed. The imposition of penalty of ₹ 3 lakhs upon Appellant no.1, ₹ 2 lakhs upon the Appellant no.2 and ₹ 6 lakhs on Appellant no.6 and ₹ 8 lakhs upon Appellant no.1, 5 and 7 for violation of Regulation 7(1A) read with Regulation 7(2) are also quashed. The imposition of penalty of ₹ 7 lakhs for violation of Regulation 3(3) read with Regulation 3(4) upon Appellant no.7, the imposition of penalty of ₹ 2 lakhs for violation of Regulation 7(3) upon Appellant no.8 and imposition of penalty of ₹ 2 lakhs for violation of Reg.8(3) upon Appellant no.8 is affirmed. The said amount shall be deposited by the appellants jointly and severally within six weeks from today.

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• 2019 (5) TMI 1761
  

  Imposition of penalty u/s 78 of FA - appellant was providing services to the bank at specified rate, and further provided that the bank at its discretion will intimate the amount payable in writing - non-payment of service tax - malafide intent present or not - case of Revenue is that appellant should have taken steps for discharge of their tax obligation and should not have imagined that the bank is taking care of the service tax liability - HELD THAT:- There is no contumacious conduct or deliberate contravention of the provisions of law by the appellant, as it appears from the facts on record - In similar circumstances in the case of M/S. KHANDWALA SECURITIES LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-I [2015 (6) TMI 783 - CESTAT MUMBAI], the Tribunal has held that the penalty under Section 78 is not imposable.

  Penalty under Section 78 of the Finance Act is set aside - appeal allowed in part.

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• 2019 (5) TMI 1760
  

  CENVAT Credit - input services - telephone service - insurance services - canteen services - courier services - Air travel services and - rent-a-cab services - period April, 2011 to March, 2016 - HELD THAT:- In sofar as insurance and canteen services are concerned, the same are disallowable only when provided to a particular employee. Under the admitted facts, these services are provided to group of employees. The same is allowable as input service.

  Air Travel Service - HELD THAT:- There is no allegation that such services are provided to any employee on vacation or for home travel. Under the undisputed fact that the Air Travel is received in respect to travel purposes for business, the same is held to be allowable under Rule 2 (l) of CCR.

  Rent-a-cab - HELD THAT:- The same is allowable as input service.

  Appeal allowed - decided in favor of appellant.

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• 2019 (5) TMI 1759
  

  Illegal import of car - co-noticee to the SCN viz. Shri Rishabh R. Goswami and Shri Ravi S. Bhandari approached the Settlement Commission in settlement application no.3877/2013 dated 27.09.2013 and 4080 dated 22.02.2014 respectively and the said dispute was finally settled - HELD THAT:- The facts are more and less similar with respect to the present appellant, who is also the co-noticee. Admittedly, the co-noticee have approached the Settlement Commission and got the dispute settled finally. In this view of the matter, it is held that the dispute also stands settled against the present appellant, who is the co-noticee in the common show cause notice issued - appeal is allowed - decided in favor of appellant.

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• 2019 (5) TMI 1758
  

  Release of detained goods - Section 129 of CGST Act - HELD THAT:- The writ petition is disposed off directing the competent authority to complete the adjudication under Section 129 of the CGST Act, within a week from the date of production of a copy of the judgment.

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• 2019 (5) TMI 1757
  

  Disallowing of benefit of brought forward unabsorbed depreciation while calculating the income under section 115 JB - adjustment of the brought forward loss/ unabsorbed depreciation against the reduction of share capital treated as set off against the reduction in the share capital - whether the assessee can claim the set off unabsorbed depreciation which has already been adjusted against the capital reduction of the company in a scheme approved by the Hon’ble Gujarat High Court? - set off of the unabsorbed depreciation, which already adjusted against the reduction of share capital, against the business profit of the current year - HELD THAT:- As decided in case of Surat Textile Ltd [2016 (6) TMI 525 - ITAT AHMEDABAD] restructuring credits brought by the assessee to the profit & loss account against accumulated profit and loss/debit balance, while giving effect to the scheme sanctioned by the BIFR would not extinguish alleged loss and depreciation from the accounts of the assessee in actual terms. Such loss would be available to the assessee as per the accounts prepared under Part-II and III of Schedule-VI, and the assessee will be entitled to claim reduction of loss/unabsorbed depreciation, whichever is lower, from the book profit under clause (iii) of Explanation to Section 115JB, while making such computation for the purpose of section 115JB. We allow the appeal of the assessee and set aside the orders of the Revenue authorities on this issue. We direct the ld.AO to grant deduction of unabsorbed depreciation from the book profit under clause (iii) of Explanation to Section 115JB(2) of the Income Tax Act, 1961. - Decided in favour of assessee

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• 2019 (5) TMI 1756
  

  Bail application - allegation of creating bogus firms/companies solely for the purpose of generating fraudulent credit and issuance of GST invoices without any sale/purchase and actual movement of goods - offence(s) punishable under Section(s) 132(1)(B) & (C) and Sections 16(1)(2) and 31 (1) of the Central Goods & Service Tax Act, 2017 - HELD THAT:- In view the fact that charge-sheet has been filed in the matter, without expressing any opinion on the merits of the case, it is deemed just and proper to grant bail to the petitioner(s) under Section 439 Cr.P.C. - bail application allowed.

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• 2019 (5) TMI 1755
  

  Liquidation of business of Corporate Debtor - section 33 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is stated that the resolution professional has not received any viable and feasible resolution plan from the resolution applicants in respect of the corporate debtor and therefore, the CoC has decided to recommend for liquidation of the corporate debtor.

  The CoC vide electronic voting conducted between February 22, 2019 10.30 a.m. and February 23, 2019 10.30 a.m., decided to liquidate the business of the corporate debtor with a vote of 95.90 per cent - Authority orders the liquidation of the corporate debtor, viz., M/s. BKR Hotels and Resorts P. Ltd., which shall be conducted in the man ner as laid down in Chapter III of Part II of the I and B Code, 2016.

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• 2019 (5) TMI 1754
  

  Reopening of assessment - as alleged assessee's business activities is to provide accommodating entries - petitioner has been denied an opportunity of fair hearing by providing copy of the statement and related details - HELD THAT:- As decided in case of Chandra Devi Kothari [2015 (2) TMI 1313 - KARNATAKA HIGH COURT] as held that since the petitioner has been denied an opportunity of fair hearing by providing copy of the statement and related details, the matter is required to be reconsidered by the AO by providing fair and reasonable opportunity of hearing to the assessee after furnishing details / copy of the statement based on which the impugned assessment order has been passed.

  From the above Para from the judgment of Hon’ble Karnataka High Court, it is seen that matter was restored back to the file of the AO for fresh decision after providing copy of the statement of Shri Mukesh Choksi and other related details. - Assessee’s appeal is allowed for statistical purposes.

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• 2019 (5) TMI 1753
  

  Dishonor of Cheque - insufficiency of funds - Section 138 of Negotiable Instruments Act, 1881 - petitioner contended that no demand for payment of the amount of the cheque was made by the complainant as per the notice (Annexure-I) sent by him under clause (b) of the proviso to Section 138 of the Act and therefore, the notice is defective and the proceedings initiated against the petitioner pursuant to such notice cannot be sustained.

  HELD THAT:- Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. The complainant is entitled to take advantage of this statutory presumption. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. At this stage, the Court could not go into the merits and come to a conclusion that there was no existing debt or liability. At the initial stage of the proceedings, the High Court is not justified in entertaining and accepting a plea that there was no debt or liability.

  In the instant case, the complaint contains averments with regard to all the aspects mentioned in section 138. It has also been found that Annexure-I notice meets the requirement under Clause (b) of the proviso to Section 138 of the Act.

  Petition dismissed.

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• 2019 (5) TMI 1752
  

  Jurisdiction - power of commissioner to consider application filed under Section 5 of Limitation Act - Whether the Commissioner while hearing the appeal under Section 69 of Act, 1959, is a Court? - HELD THAT:- When an appeal is provided against the order of the Commissioner under Section 69 to the Court which is defined under Section 6(7), there is no question of treating the Commissioner as a Court under the statutory scheme of Act, 1959 - thus, Commissioner is not a Court within the meaning of Act, 1959.

  Whether applicability of Section 29(2) of Limitation Act is with regard to different limitation prescribed for any suit, appeal or application to be filed only in a Court or Section 29(2) can be pressed in service with regard to filing of a suit, appeal or application before statutory authorities and tribunals provided in Special or Local Laws? - Whether the Commissioner while hearing the appeal under Section 69 of Act 1959 is entitled to condone a delay in filing an appeal applying the provisions of Section 5 of the Limitation Act, 1963? - HELD THAT:- The applicability of Section 29(2) of the Limitation Act is with regard to different limitations prescribed for any suit, appeal or application when to be filed in a Court - Section 29(2) cannot be pressed in service with regard to filing of suits, appeals and applications before the statutory authorities and tribunals provided in a special or local law. The Commissioner while hearing of the appeal under Section 69 of the Act, 1959 is not entitled to condone the delay in filing appeal, since, provision of Section 5 shall not be attracted by strength of Section 29(2) of the Act.

  Whether the statutory scheme of Act 1959 indicate that Section 5 of Limitation Act is applicable to proceedings before its authorities? - HELD THAT:- A special or local law can very well provide for applicability of any provision of Limitation Act or exclude applicability of any provision of Limitation Act. The provisions of Limitation Act including Section 5 can very well be applied in deciding an appeal by statutory authority which is not a Court by the statutory scheme of special or local law - We, thus, need to notice the provisions of Act, 1959 as to whether the scheme under Act, 1959 shows that enactment intended to apply Section 5 of the Limitation Act.

  The mere fact that a statutory authority is empowered to follow the procedure as nearly may be in accordance with procedure under C.P.C. to the trial of suits or hearing of appeals, the statutory authority shall not become a Court. There is nothing under Section 110 which indicates that Limitation Act is also made applicable in hearing of the appeal - Section 115 deals with limitation. It only provides that in computing the period of limitation prescribed under Act, 1959 for any proceeding, suit, appeal or application for revision against any order or decree passed under this Act, the time requisite for obtaining a certified copy of such order or decree shall be excluded.

  The suo motu power has been given to the Commissioner to correct the orders of Joint Commissioner or the Deputy Commissioner even if no appeal has been filed within 60 days. Giving of suo motu power to the Commissioner is with object to ensure that an order passed by the Joint Commissioner or the Deputy Commissioner may be corrected when appeal is not filed within time under Section 69(1). The scheme of Section 69 especially sub-section (2) also re-enforces our conclusion that Legislature never contemplated applicability of Section 5 in Section 69(1) for condoning the delay in filing an appeal by applying Section 5 of the Limitation Act.

  The Application and Appeal Rules provide for procedures and details of filing application, affidavits, memorandum of appeal, application for revision, etc. The said Rules, in no manner, support the contention of the learned counsel for the respondent that Section 5 of the Limitation Act is applicable. Similarly, Holding of Inquiries Rules provide for procedure of holding of inquiries, issue of notice, etc. The above Rules also do not throw any light on the applicability of Section 5 of the Limitation Act.

  The impugned judgment of the High Court is set aside.

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• 2019 (5) TMI 1751
  

  Release of detained goods alongwith the conveyance - HELD THAT:- By way of an interim measure, the respondents are directed to release the detained goods together with the conveyance, subject to the petitioner paying the tax and penalty as computed by the respondent authorities and also subject to filing a solemn undertaking before this court to the effect that the petitioner shall make good the deficit liability, if any, as may be determined finally by the authorities for the goods as well as for the vehicle/s subject to the petitioner's right to challenge the same in accordance with law.

  Stand over to 19th June, 2019.

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• 2019 (5) TMI 1750
  

  TP Adjustment - excluding certain comparables and also remanding certain comparables to the TPO for the purpose of determination of Arm's Length Price of international transactions involving the Respondent-Assessee. In the considered view of the Court the above orders of the ITAT do not give rise to any substantial question of law.

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• 2019 (5) TMI 1749
  

  Recovery of dues - charge over the properties - liquidator submits that the applicant is the sole first charge holder of the immovable property of the corporate debtor at Mysore and the movable fixed assets of the corporate debtor - Whether the applicant is entitled to realize their security interest in the manner specified under section 52(1)(b) read with regulation 37 of the IBBI (Liquidation process) Regulations, 2016? - HELD THAT:- The most important aspect of the realization of security interest by the secured creditor who is having the first charge is to be verified and vetted by the liquidator who in this particular case had verified the same in terms of section 52(3) of the Insolvency and Bankruptcy Code, 2016 and in all categorical terms ascertained that the applicant is the first charge holder of the fixed assets of the corporate debtor - the applicant is entitled to realize their security interest under section 52(1)(b) read with regulation 37 of the IBBI (Liquidation Process) Regulations, 2016.

  The issue is decided in favour of the applicant - As regards the current assets, it is held that the applicant does not have the first charge.

  Whether this Tribunal has jurisdiction to determine on the issue of disputed question of fact as to who the first charge holder is? - HELD THAT:- There is not a single document which raises even an iota of doubt as to the question who the first charge holder is. When the entire documents are in favour of the applicant, excepting a frivolous/untenable claim by the Edelweiss on the issue of first charge does not create a bar on this Tribunal to decide the issue as to who is the first charge holder on the basis of uncontradictable/undisputable documentation. First of all there is no tenable dispute as regards the facts in question for the reason all the documents are uncontradictable and the genuine of the same is not in question. Even otherwise, it is held that it is the exclusive prerogative of this Tribunal which is exclusively vested with the power to adjudicate the matters relating to and connected with the insolvency and bankruptcy law particularly the process of liquidation and the related measures to be adopted in the said process of liquidation. This is just not a substantive law but also a procedural law.

  Thus, this Tribunal can decide on the issues of disputed question of fact when the documents unequivocally prove the point that is sought to be decided. The so-called dispute raised by the Edelweiss is just frivolous and is hereby rejected.

  The applicant is entitled to realize their security interest as provided under section 52(1)(b) read with regulation 37 of the IBBI (Liquidation Process) Regulations, 2016 - Decided in favor of applicant.

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