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Showing 261 to 280 of 1739 Records

• 2017 (8) TMI 1482
  

  Revision u/s 263 - as per CIT-A deduction u/s 10BA was erroneous and prejudicial to the interest of the Revenue for having been made without proper verification - Held that:- CIT has not recorded a finding that the assessee has not employed 20 or more workers. The Ld.CIT in his order held that the A.O. has allowed the claim of deduction u/s 10BA without proper verification. There is no finding as to what proper verification has not been done. The conditions as mentioned in section 10BA(2) hve been fulfilled and there is no iota of finding by the Ld. CIT that deduction is not allowable. The A.O. has considered all the necessary details and came to a conclusion that deduction u/s 10BA is allowable. The article which the assessee was exporting are covered by eligible article or things. - Decided in favour of assessee.

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• 2017 (8) TMI 1481
  

  CENVAT Credit - input - HR Plates, MS Beam, MSAngles, MS Channels, Beams etc. used for fabrication of storage tanks within the factory - Held that:- The issue has been recently considered by the Principal Bench at Delhi in Singhal Enterprises Pvt. Ltd’s case [2016 (9) TMI 682 - CESTAT NEW DELHI], where it was held that applying the “User Test” to the facts in hand, we have no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of ‘Capital Goods’ as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat Credit.

  Since these items were used as structure to hold the capital goods, supported by Chartered Engineers Certificate, hence, are eligible to CENVAT credit - Appeal allowed - decided in favor of appellant.

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• 2017 (8) TMI 1480
  

  Capital receipt or revenue receipt - assessee is not entitled for the benefit u/s 115JB that appeal deserves to be allowed - Held that:- Oberoi Hotel (P) Ltd. vs. Commissioner of Income Tax [1999 (3) TMI 2 - SUPREME COURT] as principles laid down as per Article XVIII of the Principal Agreement, the amount received by the assessee is for the consideration for giving up his right to purchase and or to operate the property or for getting it on lease before it is transferred or let out to other persons. It is not for settlement of rights under trading contract, but the injury is inflicted on the capital asset of the assessee and giving up the contractual right on the basis of Principal Agreement has resulted in loss of source of assessee's income.

  As decided in Rajasthan Spinning & Weaving Mills vs. Deputy Commissioner of Income Tax [2005 (7) TMI 39 - RAJASTHAN HIGH COURT] the acceptance by the shareholders and statutory authorities to be the result of company's affairs. Such accepted book profit has to be accepted by AO to find whether income computed by him in accordance with IT Act is more than or less than such admitted income. It is only if as a result of company's total taxable income in accordance with IT Act by the AO, it is found to be less than 30 per cent of admitted book profits as discussed above, that resort has to be had to Section 115J and not otherwise. If the computation in accordance with provisions of IT Act gives better tax results, it is not at all required to go to Section 115J. The CIT has obviously exceeded its jurisdiction to find the order of AO to be erroneous, not on the basis of declared book profit, but on the basis of book profit computed by him and the Tribunal too fell in like error in accepting the position. - Decided in favour of the assessee

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• 2017 (8) TMI 1479
  

  Levy of Penalty under Rule 14 (2) of the Karnataka Excise (Sale of Indian and Foreign Liquor) Rules, 1968 - penalty imposed for the short-lifting of the liquor during the period in question.

  Whether it’s “omission” or “repeal” with effect from 01.08.2014 divests the Excise Authorities to invoke the said Rule and demand the penalty/damages for short lifting of the liquor from the State Board Corporation for the period when the said Rule-14(2) on the Statute Book, between 01/04/2003 to 01/08/2014?

  Held that:- The said contention is fallacious and not sustainable.

  Rule 132-A of the Defence of India Rules, 1962, relating to prosecution was omitted and Rule 10 and 10-A in the Central Excise Rules relating to recovery of excess refund or rebate was omitted - such omission of enactment would also amount to ‘repeal’ and Section 6 of the General Clauses Act would apply and save the action taken under the repealed provision.

  Levying of penalty/damages under Rule 14(2) of the State Excise Rules, 1968 in question, as contended by Mr.K.P.Kumar himself is that the said Rule is a charging provision and except the said Rule, there was no other provision for imposing the said penalty/damages for short lifting of liquor quantity. If it is a charging provision, as it appears to be, there is no reason to treat the ‘Rule’ 14(2) as anything different from a ‘Section’ or ‘enactment’ or a ‘provision’ covered by the scope of Section 6 of the General Clauses Act, 1897 - In 1897, when India was not independent and no ‘Rules’ under delegated powers to the State Government were framed at that time therefore absence of word ‘Rule’ in Section 6 of the General Clauses Act, 1897 in the context of situation then obtaining should not allow the levy of Penalty/damages under Rule like Rule 14 (2) of present Excise Rules to lapse by holding that Section 6 of the General Clauses Act does not apply to Rules. It is only after the State Re-organization Act, 1956 that States in India started enacting such Rules under their delegated powers under the relevant Acts.

  Merely because it is a ‘Rule’ enacted by the State Legislature under the delegated powers under Section 71 of the Karnataka State Excise Act, 1965, it does not lose the legislative sanction and sustainability as a charging provision and its omission or repeal cannot deprive the Respondents-Excise Department to invoke and apply this provision by virtue of Section 6 of the General Clauses Act for demanding the penalty/damages for the short lifting of the liquor, for the period during which the said Rule 14 (2) existed on the Statute Book. The same will be clearly saved by virtue of Section 6 of the General Clauses Act, 1897 enacted much prior to independence of India even though the word ‘Rule’ is not separately mentioned in Section 6 of the Act.

  The contention of petitioner is held to be devoid of merit and the action of the Respondents-Excise Department for demand of such penalty/damages for compensating the loss of revenue caused to the State by such short lifting of liquor quantity cannot be held to be without jurisdiction or illegal.

  It would be appropriate here to consider the judgment of the Hon’ble Supreme Court in the case of M/s. Guljag Industries Vs. Commercial Tax Officer and others [2007 (8) TMI 344 - SUPREME COURT] wherein the Hon’ble Supreme Court dealing with the case of levy of Penalty from the Consignors or Consignee or even Transporters for not carrying on Declaration Form prescribed under the provisions of Section 78(2) of the Rajasthan Sales Tax Act for regulating the checking of the Transit movement of goods for sale.

  The premise of Rule 14 (2) for recovering ‘Loss of Revenue” to State caused by short lifting of liquor quantity, is in corollary to ‘Penalty’ recovered under Rule 21 (5) of MMDR (Mine & Mineral Development Regulations), in the case of COMMON CAUSE VERSUS UNION OF INDIA AND ORS. AND PRAFULLA SAMANTRA AND ANR. VERSUS UNION OF INDIA AND ORS [2017 (8) TMI 1446 - SUPREME COURT OF INDIA], relying upon its previous decision in the case of Karnataka Rare Earth case [2004 (1) TMI 686 - SUPREME COURT] held that such compensation to State should be fully recovered even if illegal mining of ore, was done on any land, even if not covered by mining lease or Mining Plan. This judgment is on all fours to the present case.

  This Court is further of the view that the said fiscal liability in the name of Penalty under Rule 14 (2) of the Excise Rules of 1968 is actually the price or the liquidated damages to be paid by the Excise Licencees or vendors of liquor for the breach of contract on their part for short-lifting of the prescribed quantity of liquor from the State Beverage Corporation. That is why there is no need to go into the question of mens rea or opportunity of hearing or raising an objection in that regard - This Court also does not find any merit in the contention No.III that measure of Penalty under Rule 14 (2) cannot be assailed on different price range for different types of liquor. It is for the Legislature to adopt such measure and no illegality or arbitrariness is seen in such a measure adopted in Rule 14(2) in the present case.

  This Court is of the view that while upholding the levy, about its mathematical computation and assessment, the petitioners can be given even now an opportunity of hearing. Therefore, the Respondent authorities are directed to pass speaking adjudication orders, in cases where Objections are now filed about the quantum of penalty and damages under Rule 14 (2) of the Excise Rules of 1968, within a period of one month from today - Petition disposed off.

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• 2017 (8) TMI 1478
  

  Corporate Insolvency Resolution - pendency of winding up petition - Held that:- In the case on hand there is material on record to substantiate that default has occurred. Application filed by corporate debtor is complete in all respects. It is evident from the written communication filed for appointment of Insolvency Resolution Professional that no disciplinary proceedings are pending against him. In view of the aforesaid decision, this adjudicating authority need not look into any other factor.

  In view of clause (a) of sub-section (i) of section 14 of the Code of proceedings against corporate debtor shall stand stayed on the commencement of insolvency resolution process. In view of section 238 of the code the provisions of insolvency code shall have overriding effect over any other law which is inconsistent with the provisions of this code. This adjudicating authority in CP (IB) in case of Alok Industries Ltd. also took the same view.

  The financial debtor is a company. The material placed on record by the applicant clearly show that money was lent to the respondent on interest. Therefore, the amount due from the respondent to the applicant is a financial debt. The applicant is a financial creditor. Respondent is a corporate debtor.

  This application is admitted under section 7(5)(a) of the insolvency code. This adjudicating authority is appointing Mr. Sundaresh Bhat, B-905, National Seaqueen Excellency, Sector 44A, Seawood, Nerul West, Navi Mumbai 400 076 as interim resolution professional. The applicant is directed to make public announcement about initiation of Corporate Insolvency Resolution process as required by Section 13(1)(b) of the Code.

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• 2017 (8) TMI 1477
  

  Whether permission of the Settlement Officer (Consolidation) was required to be obtained in terms of Section 5(c)(ii) of the U.P. Consolidation of Holdings Act before sale of the plot No. 386 (re-numbered as plot No. 348) in consolidation proceedings and hereinafter referred to as the suit property?

  Held that:- The purpose of a consolidation scheme is to provide consolidation of agricultural holdings. Abadi land, groves etc. are kept outside the scope of consolidation scheme. They cannot be re-allocated or re-allotted to any other person. Therefore, strictly speaking, they are not subject matter of the consolidation scheme. The intention of introducing Section 5(c)(ii) of the Act was that if the land holding is subject to consolidation proceedings then permission of the Settlement Officer (Consolidation) is required before the same is transferred. This is so because if the land, which is subject matter of consolidation proceedings, is sold or permitted to be transferred during consolidation proceedings, it could affect the entire consolidation scheme - However, if the land is not subject matter of the consolidation scheme, though it may be part of the holding of the tenure holder, then no permission is required.

  Admittedly, the suit property was “Chakout” and outside the purview of the consolidation scheme inasmuch as its value could not be taken into consideration while framing the scheme and it could not be allocated or allotted to any other person.

  Petition dismissed.

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• 2017 (8) TMI 1476
  

  Corporate Insolvency Resolution Process - Held that:- The contents of Form-6 and the documents attached to Form-6 clearly indicate that the Applicant was unable to discharge the outstanding amounts due to the Financial Creditor as well as the Operational Creditors.

  Moreover, the Applicant furnished the required information as per sub-section (3) of Section 10. Therefore, the Application is complete. The material on record established that the Corporate Debtor has committed default in payment of financial debt as well as operational debts. In view of the above discussion, this Application is admitted under Section 10(4)(a) of the Code.

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• 2017 (8) TMI 1475
  

  Rectification of mistake - Held that:- In view of above corrections carried out in para 38 at page 20 of the order, corrected para 38 be read as under :

  “38. Grounds No. 2 and 3.1 of the CO require no adjudication being academic in nature. Grounds No. 3.2, 3.3 and 5 of the CO were not pressed by Ld. Authorised Representative. Grounds of appeal No. 6 and 7 being general are dismissed. Thus, we are left with only Ground of appeal No. 4 which relates the order of the CIT(A) in confirming the adjustment of ₹ 78,72,507/- to the value of international transactions in respect of export of IC engines by the LHP Division.”

  However, with these corrections there would be no change in the final result of the appeal and the cross objections.

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• 2017 (8) TMI 1474
  

  Nature of expenditure - non-compete fee - revenue or capital - Held that:- Various clauses in the first agreement itself demonstrate that the agreement was initially for a period of 5 years and even the consideration is an annual payment based on the annual turnover. Therefore, it appears to be a payment for loss of revenue to Kapil Chit Funds (P) Ltd and is dependent upon the business carried on by the assessee.

  Therefore, in our opinion, the decision of the jurisdictional High Court in the case of Andhra Fuels (P) Ltd [2016 (6) TMI 103 - ANDHRA PRADESH HIGH COURT] is clearly applicable to the facts of the case before us.

  The restrictive covenant is only for a period of 5 years and is extendable by a further period as mutually agreed to by both the parties. The agreement is also liable to be terminated with prior notice of 10 months. The agreement also includes various other services to be provided by Kapil Chit Funds (P) Ltd to the assessee company and the payment was not just for non competition. The payment made by the assessee to Kapil Chit Funds (P) Ltd is revenue expenditure as without the said payment, the assessee could not have carried on its business more efficiently and profitably. Thus the payment is in the nature of revenue expenditure and is an allowable deduction u/s 37(1)- Decided in favour of assessee

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• 2017 (8) TMI 1473
  

  Adjournment of the adjudication of the SCN - Failure of fulfill the export obligations - Held that:- Any endorsement made by an employee of the petitioner, while seeking for an adjournment of the adjudication of the show cause notice, cannot forfeit the right of the petitioner to plead for extension of time - in all fairness, the second respondent should consider the petitioner's request for extension made vide various representations - Petition allowed.

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• 2017 (8) TMI 1472
  

  Title over the shares certificate between the appellant and the 5th Respondent - Duplicate shares issue - order to release unclaimed dividend on those shares - Held that:- A suit is pending between the parties with regard to same shares certificate since 2016. In such a situation, there being a doubt about the averment made by appellant that the shares were lost or misplaced the Tribunal rightly refused to exercise its power. We find no reason to entertain the same. The prayer made in this appeal is accordingly rejected.

  If suit is decreed in favour of appellant or the other party, holder/owner of the certificates may move before the company for issuance of shares certificate/duplicate shares in view of such fresh cause of action. In such case parties may raise all the contention and the Tribunal may pass appropriate order in accordance with law, uninfluenced by any observations made in the impugned order or order of this Appellate Tribunal. It is also made clear that this order will not come is the way of SEBI in the matter of investigation, if it has initiated. Appeal dismissed.

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• 2017 (8) TMI 1471
  

  Initiating corporate insolvency resolution process - Whether Mr. Meghraj Deshmukh is having specific authorisation to initiate corporate insolvency process against corporate debtor M/S Jalan Intercontinental Hotels Pvt. Ltd under the I & B Code? - Held that:- Mr. Meghraj Deshmukh has been given authority to file winding up petition before any court in India. That authority includes his authority to file insolvency resolution process under the code. Therefore, it appears to us that Mr. Meghraj Deshmukh is a duly constituted attorney to appear and file insolvency resolution process before this Tribunal. Accordingly, we hold that petitioner has got the authority to file a petition of this nature and that this petition is maintainable under law. This issue is answered accordingly.

  Petitioner as an assignee of the original creditor can file a petition of this nature and therefore this petition is maintainable. This issue is answered accordingly.

  Winding up petition was admitted and Official Liquidator was appointed. Being found that the winding up petition was admitted and Official Liquidator was appointed Hon’ble NCLT Special Bench New Delhi dismissed the petition filed by Nowfloats Technologies Pvt. Ltd case. On the other hand, in M/s. Vasan Health Care Pvt. Ltd case the Hon'ble High Court of Madras passed an interim stay of the operation of the order passed by NCLT and referred the question of law raised by it to a Division Bench. Similarly, the corporate debtor in the M/s/ Vasan Health Care Pvt. Ltd case preferred an appeal against the very same order of Hon’ble NCLT, Madras Bench before the Hon'ble National Company Law Appellate Tribunal, New Delhi. In the said decision cited above the Hon’ble Appellate Tribunal observing the applicability of S.238 of the Code in the said case declined to entertain it because the corporate debtor already availed another remedy and with that observation, appellant is permitted to withdraw the appeal. In view of the above-said discussion, it appears to us that this Tribunal has got jurisdiction to entertain this petition under S.7 of the I&B code,2016

  Respondent did not raise any dispute regarding the assignment of debt in favour of the petitioner herein by State Bank of India and showed its willingness to settle the liability. The petitioner succeeded in establishing its entitlement to recover the debt from the respondent. It has come out in evidence that respondent defaulted in repayment of the debt due to the petitioner. Therefore, the existence of default in repayment of loan amount received by the Respondent stand proved in the instant case. The application is found otherwise complete. The petitioner has proposed the name of Mr. Kuldeep Verma, an Insolvency Professional registered with the Indian Institution of Insolvency Professional of ICAI having registration no. IBBI/IPA-00/IP-P00014/2016-17/10038, 3, Jagabandhu Modak Road, Kolkata-700005 as interim resolution professional. His consent letter and written communication are produced along with the petition . The Insolvency Professional has certified that there are no disciplinary proceedings pending against him. Therefore, this petition is liable to be admitted.

  The proposal of appointment of IRP is approved and appointed to proceed as per the provisions to finalize me insolvency resolution process within the prescribed period.

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• 2017 (8) TMI 1470
  

  Extended period of limitation - Business auxiliary service or not - multi level marketing service - penalty - Held that:- There were two views of the department itself and it cannot be inferred that there was any suppression on the part of the assessee. Thus, invokation of longer period was held to be not applicable.

  Penalty - Held that:- Inasmuch as there were number of identical matters pending before the Tribunal, there was confusion in the field and law was not clear, no malafide can be attributed to the appellants so as to invoke penal action against them.

  Appeal allowed - decided in favor of appellant.

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• 2017 (8) TMI 1469
  

  Jurisdiction - power to issue SCN prior to 08.04.2011 - Held that:- When an identical case came up before the Tribunal, a view was taken that inasmuch as, the jurisdiction of the DRI is pending before the Hon’ble Supreme Court, all the matters need to be remanded to the jurisdictional adjudicating authority to first decide the issue of jurisdiction after availability of the Supreme Court’s decision in the case of Mangali Impex Limited - appeal allowed by way of remand.

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• 2017 (8) TMI 1468
  

  Penalty u/s 271AAA - non-payment of all the due of taxes and interest thereupon, till the finalization of penalty proceedings - non-compliance of the contention laid down in clause (iii) of sub-section (2) of section 271AAA - time limit is prescribed for payment of tax and interest thereupon - Held that:- Admittedly, in this case also the assessee had also deposited tax due along with interest. Since no time limit has been prescribed for deposit of such dues and even, as discussed above, there was no overt act on the part of the assessee to avoid taxes, as his request for deposit of taxes through instalments has been accepted and the assessee has already tendered post-dated cheques before the conclusion of the penalty, hence, in the light of the observations of the Hon'ble Supreme Court in the case of Gebilal Kanhialal HUF (2012 (9) TMI 297 - SUPREME COURT), in our view, the third condition of payment of taxes as per provisions of section 271AAA(2)(iii) of the Act stood complied with.

  AO has intended to initiate penalty proceedings u/s 271AAA(1) of the Act, however, the wording written in the body of the letter does not conform to the charges of the provisions of section 271AAA of the Act, rather, the assessee has been show caused on the charge of furnishing of inaccurate particulars of income, which falls under the scope and purview of section 271(1)(c) of the Act. The assessee, therefore, is not show caused for levy of penalty under the provisions of section 271AAA, rather for doing an act inviting penalty u/s 271(1)(c) of the Act, which otherwise is neither arising out of the facts of the case nor established against the assessee. Thus, the penalty proceedings conducted against the assessee u/s 271AAA of the Act were invalid at its very inception because of the defective and invalid show cause notice, rendering the entire penalty proceedings void ab initio. The penalty levied against the assessee is thus not sustainable - Decided in favour of assessee

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• 2017 (8) TMI 1467
  

  CENVAT Credit - input service - Manpower Recruitment or Supply Agency - Held that:- Though several grounds have been raised in the instant Civil Miscellaneous Appeal and reliance made on Maruti Suzuki Ltd., v. CCE, Delhi [2009 (8) TMI 14 - SUPREME COURT], Bombay High Court in the case of CCE, Nagpur vs. Ultratech Cement Ltd [2010 (10) TMI 13 - BOMBAY HIGH COURT] had discussed Maruti Suzuki's case thoroughly and distinguished the said decision. It has also held that for a service, to qualify as ‘Input Service’, the said service should be integrally connected with the business of the manufacture of final product.

  Though it is stated that Ultratech's case is under appeal before the Hon'ble Supreme Court, there are no averments, as to whether, the decision of the Bombay High Court has been stayed or set aside. It is settled law that mere filing of an appeal does not amount to stay. Till a final decision is taken on the said appeal, and when there is no stay against the same, the decision rendered in Ultratech's case is valid.

  The cenvat credit availed by the assessee on catering services is admissible and therefore, no interference is called for - appeal dismissed - decided against Revenue.

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• 2017 (8) TMI 1466
  

  Commercial or Industrial Construction Services / Construction of Residential Complex Services - period involved is from 16.06.2005 to 30.09.2007 - demand of service tax - Penalties - Held that:- The question of levy of service tax on Works Contract Services prior to 01.06.2007 is settled by the judgment of the Hon'ble Apex Court in the case of Larsen & Toubro Ltd [2015 (8) TMI 749 - SUPREME COURT] - Following the same the demand prior to the period 01.06.2007 is unsustainable and requires to be set aside - appellant is liable to pay service tax along with interest for the period after 01.06.2007.

  Penalties u/s 76 and 78 of FA - Held that:- There were several litigation in various courts disputing the liability to pay service tax on Works Contract Services. The appellant was in bonafide dispute on the same issue - penalties not warranted and is set aside.

  Appeal allowed in part.

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• 2017 (8) TMI 1465
  
  The National Company Law Tribunal, Kolkata issued an order in the case with citation 2017 (8) TMI 1465. Hon'ble Members Shri Vijai Pratap Singh and Shri Jinan K.R were presiding. The counsels for both petitioner and respondent were present. The order was pronounced, and an urgent certified copy would be issued upon compliance with formalities.

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• 2017 (8) TMI 1464
  

  Clearance to S.E.Z. developers - whether the clearance to S.E.Z. developers during the period June, 2008 to November, 2008 would be exempted goods in view of Rule 6(6)(i) of the Cenvat Credit Rules, 2004 which substituted the earlier provision on 31st December, 2008, even to clearances prior to 31st December, 2008?

  Held that:- The question arising is essentially a question relating to duty of excise on the goods cleared to developer of S.E.Z. prior to 31st December, 2008 i.e. exempted or not under Rule 6(6)(i) of the Cenvat Credit Rules - there is no jurisdiction to entertain the present appeal in view of Section 35L of the Act.

  The substantial question as formulated is not being answered for want of jurisdiction - appeal dismissed.

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• 2017 (8) TMI 1463
  

  Non-compliance with the conditional order - the conditional order passed by the Tribunal on 21-2-2014 has been complied with, though after a period of three years - whether the same can be taken note of to rejuvenate the appeal filed by the appellant?

  Held that:- The appellant in these cases claimed in the first round of litigation that the services rendered by them cannot be brought within a particular classification. The classification dispute went up to the Hon’ble Supreme Court. When it was pending in the Hon’ble Supreme Court, an amendment came with the retrospective effect, which made the Hon’ble Supreme Court to remand the matter back to the Tribunal. Therefore, this is a case where the question of classification itself was in doubt and the matter was travelling back and forth. In such circumstances, the compliance with the conditional order, though belatedly made, can be taken note of. After all, by giving a new lease of life to the appeal, the appellant would only have an opportunity to argue the main appeal before the Tribunal on merits. No damage will be caused to the respondent-Department, by giving an opportunity to the appellant to argue the matter on main appeal.

  Appeals are disposed of, directing the Tribunal to accept the payment made by the appellant as sufficient compliance with the conditional order, revive the main appeal, and take it up for disposal. The main appeal shall stand revived and the Tribunal may fix a date for hearing and dispose it of, in accordance with law - Appeal dismissed.

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