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Showing 261 to 280 of 2152 Records
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2018 (9) TMI 1895
Admissibility of petition - initiation of CIRP - Corporate Debtor - Section 10 of the Insolvency and Bankruptcy Code 2016 - HELD THAT:- During the course of hearing no objections have been raised by the members of COC to the resolution plan. The decision taken by the members of the COC is based on their commercial and banking wisdom. We are therefore, not interfering with the decision taken by the COC in the approval of the resolution plan. We may add here that the liquidation value for operational creditors, other creditors and shareholders is NIL and the Resolution Plan only provides for payment to the financial creditors, workmen dues and some Government dues.
Whether the resolution plan has provisions for its effective implementation? - HELD THAT:- The resolution plan (page 344 of the application) provides for appointing Monitoring Agency, cost to be borne by the corporate debtor from its cash flows and Agency to be identified in consultation with COC. Para No.C.3 of the minutes of 8th meeting of COC states that it was decided that Mr. Anil Goel, RP will continue to be the supervisor as per Regulation 38(2)(c) of the Regulations and will continue to submit monthly reports to the stakeholders for providing the status on the implementation of the resolution plan - We are therefore, of the view that the resolution plan has provisions for its effective implementation.
The resolution plan as approved by the COC in its 8th meeting held on 23.03.2018 is approved (subject to comments as above) under the provisions of Section 31(1) of the Code and the resolution plan shall be binding on the corporate debtor and its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan - moratorium shall cease to have effect - the resolution professional shall forward all records relating to the conduct of the corporate insolvency resolution process and the resolution plan to the Board to be recorded on its database.
Application disposed off.
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2018 (9) TMI 1894
Monetary limit - HELD THAT:- Tax effect involved in this appeal is below ₹ 50,00,000/- and hence, in terms of circular No.3/2018 dated 11.7.2018, the appeal may be disposed of, without examining/deciding the issue/question raised.
Recording the aforesaid, the appeal is disposed of, without examining the issue/question raised. We also clarify that the issue/question is left open. All the pending applications are also disposed of as infructuous.
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2018 (9) TMI 1893
Maintainability of appeal - Classification of services - Business auxiliary services or not - amounts received on purchase and sale of cargo space on ships - HELD THAT:- The issue is of valuation and the remedy in terms of Section 83 of the Finance Act, 1994 r/w Section 35G(1) and 35L(1)(b) of the Act would not be maintainable before this Court - The appeal in respect of the same would be to the Hon'ble Supreme Court as it is an issue dealing with the valuation of services.
Appeal dismissed being not maintainable.
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2018 (9) TMI 1892
Maintainability of application - Initiation of CIRP - Validity of demand notice under Section 8(1), issued by an advocate - existence of dispute or not - HELD THAT:- Insofar as the supply made during the year 2015, there is no dispute with regard to quality of goods supplied, from May, 2015 onwards, except one or other invoice, which is not the subject matter of the claim. Therefore, we hold that there is no dispute in existence with regard to goods supplied between 16th April, 2013 to 8th May, 2014 and the majority of goods supplied during the year 2015, except for one of which report dated 13th August, 2015 enclosed, which is not subject matter. Thereby, we hold that the Appellant has made out a case for admission of application under Section 9.
Issuance of demand notice by advocate - HELD THAT:- The case being covered by decision of the Hon'ble Supreme Court in Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd. [2017 (12) TMI 850 - SUPREME COURT] cannot be a ground to reject the application.
Appeal allowed.
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2018 (9) TMI 1891
Exemption u/s 11 - allowing of depreciation to a trust and accumulation of income under section 11(2) - HELD THAT:- Issues stand settled by the decision of the hon'ble Supreme Court reported in CIT v. Rajasthan and Gujarati Charitable Foundation [2017 (12) TMI 1067 - SUPREME COURT] and Principal CIT (Exemptions) v. Manipal Academy of Higher Education [2018 (8) TMI 1865 - KARNATAKA HIGH COURT]
Income of a charitable trust derived from building, plant and machinery and furniture was liable to be computed in a normal commercial manner although the trust may not be carrying on any business and the assets in respect whereof depreciation is claimed may not be business assets. In all such cases, section 32 of the Income-tax Act providing for depreciation for computation of income derived from business or profession is not applicable. However, the income of the trust is required to be computed under section 11 on commercial principles after providing for allowance for normal depreciation and deduction thereof from gross income of the trust
Carry forward of income or loss of charitable trust - HELD THAT:- Allowing any expenditure of the earlier year which has been brought forward and set off in the year under consideration, is a justified finding of fact based on the correct interpretation of law and the judgment relied upon by it rendered by the cognate Bench. Therefore, the same does not call for interference. A similar view was also taken by the Division Bench of the Bombay High Court in CIT v. Institute of Banking [2003 (7) TMI 52 - BOMBAY HIGH COURT] wherein held that the income derived from the trust property has also got to be computed on commercial principles and if commercial principles are applied, then adjustment of expenses incurred by the trust for charitable and religious purposes in the earlier years against the income earned by the trust in the subsequent year will have to be regarded as application of income of the trust for charitable and religious purposes in the subsequent year.
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2018 (9) TMI 1890
Reopening of assessment u/s 147 - HELD THAT:- With respect to the scope and ambit of reassessment proceedings u/s.148 of the Act, we deem it appropriate to remand the matter to the file of the CIT (A), as the CIT(A) had not decided these issues, with a direction to decide the ground no.1 and 2 raised before him on the basis of the legal proposition mentioned hereinabove by the assessee as well as the Revenue, as also any other judgment which comes to his notice and decide the issue in accordance with law.
Needless to say it is for the assessee to establish that there is no live connection with the reasons for reopen and with the additions made by the AO. We are in agreement with the Ld. AR that if the foundation (reasons to believe/ grounds referred therein ) on which the whole structure of additions were made is itself not sustainable in the eyes of law or it (reasons to believe/ grounds referred therein ) does not have any live connection with the additions made, in that eventuality no such additions is sustainable. However if the CIT (A) comes to the conclusion that there is a live connection and the reasons to reopen is interdependent and interwoven with the addition made then said additions are sustainable in the eyes of law.
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2018 (9) TMI 1889
Rectification of mistake u/s 254 - Claim of deduction u/s 80-IA(4)(ii) - nature of the business of the assessee - HELD THAT:- The claim of the assessee is based upon the meaning for description of internet service providers (ISP). The assessee also relied upon the meaning of the service interpreted by Wikipedia website. The internet services are generally by intermediaries by (a) acquiring the right to use of bandwidth, acquiring/setting up the necessary hardware/infrastructure and making the bandwith acquired as per point (a) to outsiders/ customers by using equipments as per point. In brief, the controversy has been decided by the AO as well as the CIT and even Hon’ble ITAT on the basis of said letter dated 25.11.2009 which nowhere leads correct definition of the nature of the business. The assessee has mentioned in its form no. 3CA and 3CD about the nature of business of internet service provider and network and support service. The assessee has charged the service tax from its client which nowhere falls within the ambit of trade. The assessee also issued TDS certificate to the applicant wherein the tax deducted at source u/s 194J of the Act on fees in profession of taken services to its customer which cannot be treated as trade of bandwidth. On appraisal of the documents on record and considering of the contention of the assessee, we are of the view that the nature of the business of the assessee has not been properly interpreted and it requires proper interpretation.
Whether in the circumstances the issue is liable to be recalled or not? - If an order has been passed by the Tribunal on the basis of misconception and misapprehension, therefore, the order does not fall within the ambit of review so undoubtedly it can be recalled, in view of the provision of Section 254(2) of the Act. We also find support of law settled in the case of H. H. Maharaja Martant Singh Vs. CIT [1987 (10) TMI 383 - MADHYA PRADESH HIGH COURT] & SHAKUNTALA RAJESHWAR [1986 (3) TMI 74 - DELHI HIGH COURT] therefore, in view of the said circumstances, we recall the order dated 22.07.2017 vis-à-vis issue of claim of deduction u/s 80IA of the Act of deciding afresh in accordance with law. Miscellaneous application filed by the assessee is hereby allowed.
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2018 (9) TMI 1888
Bogus purchases - information received from Maharashtra VAT Department - HELD THAT:- Sales made by the assessee were never disbelieved. Assessee could not have effected the sales without corresponding purchases. If the Revenue disbelieved the purchases the corresponding quantity ought have been reduced from the sales also. AO fell in error in disbelieving the purchases while accepting the quantity of plastic granules sold by the assessee, that too without rejecting the books of the assessee.
It is not disputed that assessee had produced the bills for all purchases and these were paid through banking channel. Just because the notices to vendors of the assessee came back unservd, the purchases could not have been disbelieved. A businessman who purchases goods in the normal course of his business is not expected to keep a track of the address of all the vendors who supplied goods to him. There is nothing on record to substantiate the inference drawn by the lower authorities that part of the sales accounted by the assessee was only to bring in his unaccounted income to the main stream. The existence of unaccounted income was not evidenced by any record.
We are of the opinion that purchases could not have been considered as bogus. Disallowances made for the impugned assessment years stand deleted - Decided in favour of assessee.
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2018 (9) TMI 1887
Valuation - related party transaction - case of the department is that since the appellant sold the goods to brother of the proprietor, therefore, they are related persons - Rule 8 of CER - HELD THAT:- The lower authorities have demanded the duty on the ground that the appellant supplier and buyers of the goods are proprietorship of brothers. However, no investigation was carried out to bring evidence on record, there is no mutuality such as flowback of funds, mutual interest in the business of each other, etc. Therefore, merely because the appellant’s supplier and buyer are proprietorship of brothers, this alone cannot be the reason for holding that both are related persons.
Moreover, the Adjudicating authority has applied 110% on the value of goods in terms of rule 8 of Central Excise Valuation Rules, 2000. However, no basis for such calculation was relied upon in the show cause notice. Therefore, on that account also, the demand is not correct.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1886
Maintainability of application - initiation of CIRP - Section 7 of Insolvency & Bankruptcy Code, 2016 - HELD THAT:- As the parties could not settle the matter and no other order required to be passed, the appeal is dismissed.
No cost.
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2018 (9) TMI 1885
Addition u/s 40A - assessee given subcontract to persons specified - HELD THAT:- As decided in own case [2018 (4) TMI 1747 - ITAT DELHI] disallowance under this section is made in respect of the expenses incurred or payments made which are not deductible. This section has no application to income aspect of the assessee. As the AO has made disallowance u/s 40A(2)(b) in respect of income which the assessee in his opinion ought to have earned rather than certain expenses incurred, the provisions of this section are not attracted. Therefore, uphold the impugned order on this score deleting the disallowance.- Decided in favour of assessee.
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2018 (9) TMI 1884
Unexplained cash deposits - undisclosed income of the assessee - CIT(A) relied upon the judgement of Mahesh B. Shah vs. CIT [1998 (12) TMI 62 - KERALA HIGH COURT] and Ramesh Chandra & Co. vs. CIT [1987 (1) TMI 39 - BOMBAY HIGH COURT] wherein it was held that once the appellant has agreed for some addition before the Ld. AO, then the appellant does not have any right to prefer any appeal before higher forum against agreed addition unless he proves that the addition was made under threat or coercion. In the instant case, since no such statement towards agreement for addition by the assessee was under any threat or coercion is on record, the Ld. CIT(A) dismissed the same.
HELD THAT:- Considering the submissions made by the Ld. AR and the judgement passed by the Coordinate Bench in assessee’s own case for the AYs 2011-12 & 2012-13 in similar set of facts, we respectfully following the same, modify the Ld. CIT(A)’s order and direct the AO to treat 50% of cash deposited as undisclosed income of the assessee. - Decided partly in favour of assessee
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2018 (9) TMI 1883
Penalty u/s. 271(1)(c) - Addition u/s 68 - HELD THAT:- We hold that the notice issued u/s 271 r.w.s. 274 of the Act is not valid and consequential penalty proceedings are not sustainable.
Assessee has furnished all the relevant material before the AO both during the assessment proceedings as well as during the penalty proceedings to prove the identity, creditworthiness and genuineness of the transaction of payment of share application money, but, the AO had failed to carry out proper investigation to verify the documents such as PAN, etc. Further, he also brought out that the AO has not recorded satisfaction about concealment of income or furnishing of inaccurate particulars of income by the assessee. Assessee has produced relevant material, but, since AO was not satisfied with the same, he made addition. Assessee, in order to avoid further litigation, has not appealed, but, that does not mean that the addition will automatically attract penalty provisions. - Decided in favour of assessee.
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2018 (9) TMI 1882
Liquidation of assets of Corporate Debtor - CIRP under process - expiry of period of 180 days - Section 33(2) of the I&B Code, 2016 - HELD THAT:- It is stated by the Resolution Professional that despite consistent efforts being taken by him, no Resolution Plan was forthcoming in respect of the Corporate Debtor and the period of CIRP expired on 08.08.2018, therefore, the Resolution Professional informed the CoCs that there are two agendas for voting; one for extension of time for 90 days or liquidation. The resolution is put to the vote and ARCIL having 70.11 per cent vote share have voted against the extension of time and voted in favour of liquidation of the Corporate Debtor. The L&T Finance having 29.89 per cent vote have voted in favour of extension of time and voted against liquidation of Corporate Debtor. Hence, resolution for liquidation of Corporate Debtor is approved by 70.11 per cent vote.
This Authority orders for liquidation of the Corporate Debtor viz., M/s. Meka Dredging Company Private Limited, which shall be conducted in the manner as laid down in Chapter III of Part II of the I&B Code, 2016 - This Authority appoints the Resolution Professional viz., Mr. Dhiren Shantilal Shah Company Liquidator, who shall issue a public announcement stating therein that the Corporate Debtor is in liquidation - moratorium declared.
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2018 (9) TMI 1881
Change of Investigating agency - High-handed action of the Maharashtra Police in raiding the homes and arresting five well known human rights activists, journalists, advocates and political worker, with a view to kill independent voices differing in ideology from the party in power and to stifle the honest voice of dissent.
Should the Investigating Agency be changed at the behest of the named five Accused?
HELD THAT:- In the present case, except pointing out some circumstances to question the manner of arrest of the five named Accused sans any legal evidence to link them with the crime under investigation, no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer. A vague and unsubstantiated assertion in that regard is not enough. Rather, averment in the petition as filed was to buttress the reliefs initially prayed (mentioned in para 7 above)-regarding the manner in which arrest was made.
It is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named Accused, but concerning their link with the members of the banned organisation and its activities. This is not the stage where the efficacy of the material or sufficiency thereof can be evaluated nor it is possible to enquire into whether the same is genuine or fabricated. We do not wish to dilate on this matter any further lest it would cause prejudice to the named Accused and including the co-accused who are not before the Court. Admittedly, the named Accused have already resorted to legal remedies before the jurisdictional Court and the same are pending.
This Court has a constitutional obligation, where its attention has been drawn, in a case such as the present, to a real likelihood of the derailment of a fair investigative process to issue appropriate directions Under Article 142 of the Constitution.
While the investigation should not be thwarted, this is a proper case for the appointment of a Special Investigating Team. Circumstances have been drawn to our notice to cast a cloud on whether the Maharashtra police has in the present case acted as fair and impartial investigating agency. Sufficient material has been placed before the Court bearing on the need to have an independent investigation.
Thus, a Special Investigating Team must be appointed - the investigation shall be monitored by this Court. The Special Investigating Team shall submit periodical status reports to this Court, initially on a monthly basis.
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2018 (9) TMI 1880
TP adjustment - arm’s length price adjustments in respect of management fees - HELD THAT:- Expenditure to the extent of 60% was held to be capitalized on the ground that during that year the expenses of Asia Pacific headquarters were also aimed at increasing the installed capacity from 6 lakhs units p.a. to 10 lakhs units p.a. That aspect of the matter, however, is no longer relevant, and that is not even revenue’s case before us.
There is no dispute about the rendition of services, but, as in the last year, the dispute is about the services being in the nature of shareholder services. That plea, in our considered view, is wholly unsustainable in law. A core management support service, under a cost contribution arrangement, is inherently outside the limited scope of shareholder services.
These services are required for effective administration and management of the assessee company on day-to-day basis. Whether assessee needs these services or not or whether assessee derives “substantial benefit” from these services or not is not really relevant.
That should be best left to the commercial wisdom of the assessee. What is material is whether the services were rendered or not, and whether or not the cost allocation was on a fair and reasonable, even if not wholly precise and accurate, basis and both of these tests are clearly satisfied on the facts of this case. It is also not a case in which benefits are so trivial or illusory that it can be said that the assessee did not derive any benefit from these services at all.
The emails, correspondence and other corroborative details clearly show rendition of services, and the allocation being on approximate time basis show reasonableness in allocation of costs. As for the fact that the date of agreement is a date subsequent to commencement of work under the agreement, nothing really turns on it inasmuch as the existence of a formal agreement is not even a sine qua non for a cost contribution arrangement.
It is not the case of the revenue that the agreement is not a sham agreement. The agreement may have been formally entered into on a later date but it covers the entire period and there is no dispute about rendition of services. In our considered view, in the light of these discussions and respectfully following the co-ordinate bench decision in assessee’s own case for the assessment year 2008-09, we are unable to see any legally sustainable merits in the impugned arm’s length price adjustments in respect of management fees
Arm’s length price adjustment in respect of insurance premium share - HELD THAT:- We find that this issue is also covered by the co-ordinate bench decision in assessee’s own case for the assessment year 2008-09 wherein held there was no error on the part of assessee claim the allocation of insurance cost and further there was no duplication of insurance expenditure because they were meant to cover up two types of insurances namely public liability insurance and product liability insurance.
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2018 (9) TMI 1879
Imposition of ADD - Styrene Butadiene Rubber (SBR) of 1500 series and 1700 series - import from EU, Korea RP or Thailand - whether or not the DA has erred in examining the scope of DI and in analyzing the injury to the DI as claimed by the submissions made by the appellants? - It was held in the case that appellants have not made out any case against the final finding and the customs notification imposing AD duty on the impugned goods.
HELD THAT:- There are no merit in these appeals - Admission is refused - appeal dismissed.
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2018 (9) TMI 1878
Manufacture - process of mixing base paint with the colourants to obtain the pain of a desired shade known as “Tinting” - it was held in the case that the activity carried out by the appellant is indeed manufacture.
HELD THAT:- There is no ground to interfere - Admission is refused and the civil appeals are, accordingly, dismissed.
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2018 (9) TMI 1877
Imposition of CV duty and AD duty - injury margin - HELD THAT:- It is seen that the CV duty and AD duty put together did not exceed the injury margin though the dumping margin is higher. The same principle of Lesser Duty Rule is followed in India also. As such, there is no infirmity in the final findings of the DA and Customs Notification imposing CV duty with reference to subsidy on the subject goods - appeal dismissed.
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2018 (9) TMI 1876
Refund of service tax paid - service tax was paid for the services which were exempt - time limitation - refund rejected on the sole ground that the application is filed beyond the stipulated time frame and accordingly, is barred by limitation of time as per Section 11B of the Act - HELD THAT:- Learned Commissioner (Appeals) in the impugned order, though has upheld rejection of refund application, but has relied upon the provisions of Section 109 of the Finance Act, 2013, which was not the stand taken by the original authority in the adjudication order. Thus, I am of the view that rejection of refund application under Section 109 of the Act, 2013 is not legal and proper.
Time limitation - HELD THAT:- The application for refund was filed by the appellant on 13.06.2014, which was within the limitation period of one year from the date of payment of service tax amount. Thus, rejection of refund application on the ground of limitation is not sustainable.
Further, the Finance Act, 2013 dealing with the VCES Scheme does not impose any restriction for non-filing of refund application under Section 11B of the Act. Since, the Central Excise statute in Section 11B permits the assessee to file the refund application, claiming refund of duty/service tax, the provisions of Section 109 of the Act, 2013 cannot be relied upon to deny the refund benefit to the appellant.
Appeal allowed - decided in favor of appellant.
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