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Showing 281 to 300 of 2121 Records
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2019 (2) TMI 1849
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is on record that the Corporate Debtor/Respondent was to handover the possession of the apartment within 60 months, i.e. 42 months (commitment period) + 6 months grace period + 12 months extended period from the date of approval of building plan and on fulfilment of the pre-conditions imposed thereunder as per clause 13.3 to 13.5 of the Agreement.
Despite the approval of building plan on 23rd July 2013 project could not be started due to the certain pre imposed conditions, including but not limited to obtaining the grant of approval by Ministry of Environment and Fire Safety approval, before the commencement of construction. The Respondent obtained the environmental approval on 12th December 2013 and the said approval reiterated the requirement of approval by the Fire Department. Therefore, the Respondent applied for the Fire safety Approval on 23rd October 2013, and before starting any construction, approval from the Fire Department, in terms of Section 15 of the Haryana Fire Safety Act, 2009 was material for the fulfilment of the obligations of the Respondent and commencement of construction. Accordingly, the date of handover of possession is to be computed from the date of grant of Fire Safety Approval, i.e. dated 27th November 2014. Before that, the letter for handing over possession was already issued to the Appellant.
If the intention of the allottees is only for recovery of the money and not for resolution for possession by apartment, then the Corporate Debtor may bring to the notice of the Adjudicating Authority.
Appeal dismissed.
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2019 (2) TMI 1848
Assessment u/s 153A - additions u/s 68 on account of share application money, special deposits against the issue of preferential equity shares treating the same as accommodation entries - HELD THAT:- Addition made by the A.O. u/s 153A of the Act is not sustainable and liable to be deleted when the assessment for the A.Y. 2010-11 was completed u/s 143(3) of the Act and was not pending as on the date of search on 02/7/2015. This ground of the assessee’s appeal stands allowed.
Violation of principles of natural justice due to non-allowing the cross examination of the witness, whose statement was relied upon by the assessee - HELD THAT:- Where the assessee has repeatedly requested and demanded the cross examination of the witnesses whose statements were relied upon by the AO in the assessment order and further the report of the DDIT Investigation Kolkata is also based on the statement of such person then the denial of cross examination by the AO as well as ld. CIT (A) despite the fact that the assessee was ready to bear the cost of the cross examination of the witnesses is a gross violation of principles of natural justice. Thus the additions made by the AO on the basis of such statement without any tangible material is not sustainable in law and liable to be deleted.
Addition u/s 68 in respect of the share capital received - HELD THAT:- Once the assessee has produced the relevant documentary evidence in support of the claim as well as repayment of the loan including the payment of interest, which were not disallowed or disturbed by the A.O. in any of the years then in absence of any contrary material brought by the A.O. to controvert or dispute the correctness of the evidence filed by the assessee, the addition made by the A.O. and confirmed by the ld. CIT(A) are not sustainable. Further the statement relied upon by the A.O. no where states that he has provided any accommodation entry to the assessee but reference in the statement is only to the extent that he has provided accommodation entries through another company. Further the A.O. has not pointed out any discrepancy in the record to show that the assessee’s own money has been routed back in the garb of unsecured loans. Accordingly we delete the addition made by the A.O. in respect of unsecured loan
Disallowance u/s 14A - HELD THAT:- The fact recorded by the ld. CIT(A) that the assessee has not earned any exempt income during the year under consideration has not been disputed by the department and therefore, in view of the settled proposition of law on this point and particularly the decision of Chemvest Ltd. Vs CIT [2015 (9) TMI 238 - DELHI HIGH COURT] we do not find any error or illegality in the order of the ld. CIT(A) qua this issue. Hence, we uphold the same.
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2019 (2) TMI 1847
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - proper authority to Institute an application.
Whether Mr. B. Parvateeswara Rao, the applicant has proper authority to Institute an application of this nature? - HELD THAT:- The power of attorney though was executed in the year 1990, it, inter alia specific powers given to move an application to file insolvency proceedings. In this regard, the Hon'ble Supreme Court in MACQUARIE BANK LIMITED VERSUS SHILPI CABLE TECHNOLOGIES LTD. [2017 (12) TMI 850 - SUPREME COURT], has cleared the position by holding that, "authorized agent of the Financial Creditor or Operational Creditor can file application to start CIRP against the Corporate Debtor." Hence, the applicant has succeeds in proving his authority in moving an application of this nature, there are no justifiable reason to hold that the aforesaid authority given to Mr. Parvateeswara Rao is invalid and in- operative as per the provisions of the Code. The objection in this regard found devoid of any merit.
Whether the application is maintainable in view of the Interim order passed by the Hon'ble High Court of Chattisgarh, Bilaspur in Writ Petition (C) No. 1686 of 2017? - HELD THAT:- The applicant herein this case is not bared in filing the application under section 7 of the 18B Code. Though the proceedings initiated by the applicant before DRT is under challenge in civil court as well as before the High Court, the applicant being not prevented from exercising its option to file proceedings under the Code, the passing an order of admission in this case not at all amount to conflict of judgement as submitted on the side of CD. So it appears to me that ordering admission of this application does not violate any of the directions passed by the Hon'ble High Court Of Chattisgarh, Bilaspur - the objections raised on the side of the Corporate Debtor is found unsustainable under law.
Necessary Relief - HELD THAT:- As per Section 7(3) of the Code the Financial Creditor shall, along with the application furnish record of the default recorded with the information utility or such other record or evidence of default. It is one among the requirement which would be meted out by the Financial Creditor and that requirement has been meted out though a Certificate from Information Utility Organization has not been produced.
Application admitted - moratorium declared.
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2019 (2) TMI 1846
Validity of Reopening of assessment u/s 147 - non- application of mind by all the authorities involved in the process of recording reasons and providing satisfaction u/s 151 - addition u/s. 68 on account of unexplained cash credit - HELD THAT:- Conditions laid down in proviso to section 147 need be strictly full filled as this power is an exceptional power and in the absence of strict compliance of conditions of proviso, the exercise of power held to be unsustainable in law.
The order is bad in law because the reason recorded are vague and without application of mind and are based on the information of the Enforcement Directorate with no incriminating material which is coming to the possession of the AO for the first time and which was not there with him at the time of original proceedings.
In the reasons recorded in instant case the AO has not referred to any specific adversarial material (statement etc.) and also has not described exact nature of transaction in the reasons and has used share application / share capital / unsecured loans etc. In the reasons and has miserably failed to bring during entire reopening proceedings any specific tangible material which established assessee is beneficiary of accommodation entries, which all are sufficient to nullify the extant reopening action. Even there is no annexure/enclosure to reasons to corroborate the same. No reference and details of investigation wing information is available. There is no live nexus / rational connection between Investigation Wing information and belief that assessee's certain income has escaped assessment.
The date of recording reason is also not mention and also the date of sanction u/s 151 and these material facts indicate that the sanction provided by the authorities is mechanical as recording of reason. approval granted by the competent authority is a mechanical approval and action has been taken mechanically because on perusing the reasons recorded, it demonstrates that Pr. CIT has written "Yes, it is a fit case for the issue of notice u/s. 148." which establishes that the competent authority has not recorded proper satisfaction / approval, before issue of notice u/s. 148 of the I.T. Act. Thereafter, the AO has mechanically issued notice u/s. 148 of the Act, on the basis of information allegedly received by him from the Directorate of Enforcement.
We also note that the action of the AO has been taken mechanically on the basis of alleged report of Enforcement Department. The mere recording/ formulation of reasons on the basis of reproduction of information from Investigation Wing and, issuing notice for initiation of re-assessment proceedings does not constitute application of mind much less independent application of mind. Hence, the proceedings are without jurisdiction.
Thus proceedings initiated by invoking the provisions of section 147 of the Act by the AO and upheld by the Ld. CIT(A) are nonest in law and without jurisdiction, hence, the re-assessment is quashed. - Decided in favour of assessee.
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2019 (2) TMI 1845
Dishonor of Cheque - Non-Grant of compensation by the Trial Court - the accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act - HELD THAT:- Sending the accused in jail for dishonour of cheque will not serve the purpose of the Act. The Court has to keep in mind the provisions of Section 357 of the Code of Criminal Procedure. As per Section 357, the Court has to award compensation in a suitable case. Once it is proved by the side of complainant that cheque was dishonoured, then it was for the trial Court to award compensation to the complainant. Learned trial Court as well as first appellate Court not taken into consideration the provisions of Section 357 of the Code of Criminal Procedure.
Accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. He shall pay compensation of ₹ 80,000/- to the complainants/applicants within a period of 15 days from the date of this order - Petition allowed in part.
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2019 (2) TMI 1844
Refund of CENVAT Credit - export of services - time limitation - rejection of refund on the ground that the refund applications were beyond a period of limitation from the date of filing of ST3 returns - whether refund claim filed by the respondent is within period of one year from the date of filing of revised returns has to be considered as hit by limitation or otherwise? - HELD THAT:- It can be seen from the findings of First Appellate Authority that they are in consonance with the law, as Notification No. 12/2014 CE (NT) clause 2 specifically talks about the refund claim should be filed within one year from the due date of filing of half yearly return. As can be seen from the provisions of Rule 7B, the due date of filing the service tax returns has been extended by 90 days if there is mistake or ommission. In the case, undisputedly due date has to be considered from the date of filing of revised returns as correctly held by the First Appellate Authority.
The impugned order to the extent it is challenged in this appeal is unacceptable and liable to be rejected - Appeal dismissed.
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2019 (2) TMI 1843
Cash refund of unutilized CENVAT credit - closure of factory - denial of credit on the ground that the refund of unutilised credit is not admissible to the appellant by way of granting cash refund under the provisions of Rule 17 of Chewing Tobacco and Unmanufactured Tobacco Packing Machine Rules 2010 - HELD THAT:- Issue decided in appellant own case M/S SHREE FLAVOURS LLP VERSUS CCE, DELHI [2019 (1) TMI 968 - CESTAT NEW DELHI] where it was held that the appellant is entitled to refund of the Cenvat credit lying unutilised at the time of closure of their factory.
The appellants are entitled to cash refund of the Cenvat credit lying unutilised at the time of closure of their factory - Appeal allowed - decided in favor of appellant.
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2019 (2) TMI 1842
Ascertaining the taxable income of the assessee in absence of registration u/s.12A - Revenue taxing the entire amount of receipts without allowing claim of expenditure - determining the income by not giving the credit of the application of funds for charitable purposes - HELD THAT:- In view the principles laid down by the Hyderabad Benches of the Tribunal in the case of Nirmal Agricultural Society [1998 (12) TMI 106 - ITAT HYDERABAD-B] no hesitation to hold that even in absence of registration u/s.12A of the Act, the Assessing Officer could assess only net income of the assessee and not the entire receipts because in absence of registration u/s.12A the assessee should be assessed in the capacity of AOP on the commercial principles, wherein, the total gross receipts/income cannot be treated as income of the assessee without allowing revenue expenditure incurred by the assessee during the relevant same period and thus, I am inclined to hold that the authorities below were not right in disallowing the claim of expenditure of the assessee.
However, AO has framed assessment u/s.143(1) without verifying the quantum of expenditure claimed by the assessee and the CIT(A) has not verified the same during the relevant appellate proceedings. Therefore, direct the Assessing Officer to allow the claim of expenditure of the assessee pertaining to the relevant financial period after due verification of purpose and quantum of expenditure. Hence, the case is restored to the file of the Jurisdictional Assessing Officer - Decided in favour of assessee for statistical purposes.
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2019 (2) TMI 1841
Imposition of penalties - mismatch between the ST-3 returns figures and the amounts recorded in the accounts manual - HELD THAT:- Appellant deposited an amount of ₹ 4,99,377/- with interest with the authorities before the issuance of the show cause notice but has not discharged an amount of ₹ 43,191/- till date. Both the lower authorities have confirmed the demands raised and also appropriated the amounts deposited and imposed penalties under Section 78 which is equivalent to 50% of the tax liability confirmed.
Tax liability of ₹ 43,191/- and consequential interest and penalties - HELD THAT:- There is no case for the assessee as they have not paid any amount on this account in order to claim leniency.
Demand of tax liability of an amount of ₹ 4,99,377/- - demand already paid alongwith interest - time limitation - HELD THAT:- This amount has been paid by the appellant on 29.02.2016 along with interest. Show-cause notice is dated 03.03.2017 and the said show-cause notice is invoking only the demand within the period of limitation i.e. 30 months as per the provisions of Section 73(3). If that be so, in my considered view, provisions of Section 73(1) of the Finance Act 1994 will directly apply and lower authorities should not have issued any show-cause notice for this amount, seeking to impose penalty. Since in respect of an amount of ₹ 4,99,377/.- appellant has already paid the amount before issuance of show-cause notice and the show-cause notice also is not invoking any extended period for this amount, the impugned order to the extent it upheld the penalties on this account is unsustainable and liable to be set aside - tax liability with interest upheld - penalty set aside.
Appeal disposed off.
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2019 (2) TMI 1840
Exemption u/s 11 - assessee was granted registration u/s 12A - voluntary contributions received for a specific purpose - whether cannot be regarded as income u/s 2(24)(iia) since they are capital receipts to be utilised for specific purpose? - assessee has pleaded that the amount received by the assessee was a tied up grant or an amount received for a specific purpose as being capital in nature - HELD THAT:- Voluntary contributions received for a specific purpose cannot be regarded as income under section 2(24)(iia) of the Act since they are capital receipts to be utilised for specific purpose.
Respectfully following the decision of ITO Vs. Vokkaligara Sangha [2015 (8) TMI 920 - ITAT BANGALORE] where we find the factual matrix therein to be similar to that of the case on hand and the decision therein squarely applicable to the instant case, we hold that the voluntary corpus donations / contributions received by the assessee in the periods under consideration (i.e., Assessment Years 2011-12 and 2012-13) for the specific purpose of purchase of lands for furtherance of the assessee’s objects cannot be regarded as income under section 2(24)(iia) of the Act since they are capital receipts for specific purpose. - Assessee’s appeals are allowed.
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2019 (2) TMI 1839
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - time limitation - HELD THAT:- It is an admitted fact that the delay occurred from the side of the operational creditor, against which, the operational creditor of course says it has happened because requisite documents were not supplied. Today the ground position is, it is a fact that there is pre-existing dispute between the operational creditor and the corporate debtor before section 8 notice was issued about the operational creditor providing services to the corporate debtor, notwithstanding the merit of the contentions of either side.
The corporate debtor on 20.07.2018 has replied to the section 8 notice within 10 days from the date of receipt the notice stating that operational creditor failed to provide services as agreed between them by saying that this was informed to the creditor long before section 8 notice was issued.
This claim is hit by pre-existing dispute - petition is dismissed.
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2019 (2) TMI 1838
Valuation - Supply of man power services - inclusion of components like, reimbursement of actual wages payable, PF contribution, EPF contribution and contract liaison charges in assessable value - HELD THAT:- The Ld. Consultant is correct in his assertion that both the lower authorities have not considered the plea of reimbursable expenses only because necessary documentary evidence has not been produced. This being so and also considering the request of the Ld. Consultant, in the interest of justice, we remand the matter back for de novo consideration. In such de novo consideration, appellant shall produce all the documentary evidence before the original authority who shall also give them sufficient opportunity to present their case.
Penalty - HELD THAT:- The amount of ₹ 20,16,669/- had been paid by them proximate to the investigation by D.R.I. vide challan dt. 31.3.2010 relating to the period 30.06.2005 to 30.11.2009. It is also pertinent to note that the issue concerning reimbursable expenses was very much in dispute during the impugned period. This being so, there is a case for invocation of Section 80 ibid.
Appeal is partly allowed on above terms by way of remand.
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2019 (2) TMI 1837
Revision u/s 263 - Subsidy given under the Package Scheme of Incentives, 2007 - HELD THAT:- We find that the subsidy received by the assessee under PSI, 2007 Scheme in the form of refund of sales tax, is of capital receipt and the same is not liable to tax. For this proposition, we rely on the decision of the coordinate bench decision of the Tribunal in the case of Rasiklal M. Dhariwal (HUF) Vs. DCIT [2011 (3) TMI 1619 - ITAT PUNE].
Similar claim was allowed by the Revenue in the assessment year 2012-2013 also, in which case, the examination of the issue for establishment of true nature of subsidy shall only breed the multiplication of the proceedings. The same issue need not be examined every year, wherever subsidy is received by the assessee. Further, there is an amendment to the provisions of section 2(24) clause (xviii) of the Act by the Finance Act, 2015. The subsidy is an income after the amendment. The said clause was further amended in 2017. After the amendment, the subsidy segment, which is capitalized to the actual cost is not the income and the assessee is allowed to claim the depreciation u/s 32 of the Act. These amendments do not apply to the assessment year 2013- 14 under consideration as the amendments apply prospectively only. Infact, the Assessing Officer examined all these issues before treating the subsidy as capital receipt. From this point of view merely based on the ground of verification of the issue by the Assessing Officer, invoking of the provisions of Section 263 of the Act is uncalled for and unsustainable under law. We find merit in the same and uphold the view taken by the Assessing Officer in regular assessment order. Accordingly, the ground no.1 and 2 raised in the appeal on this issue are allowed.
Share Premium & Application of Section 56(2)(viib) - treatment of Share premium u/s 68 of the Act – cum the applicability of the provisions of section 56(2)(viib) of the Act read with Rule 11UA of the I.T. Rules - HELD THAT:- We find that the Pr. CIT failed to issue show cause notice undisputedly. Therefore, in our opinion, the order of the Pr.CIT requires to be reversed on this issue. As such, ld.DR could not make out a case that the issue of share premium and the share capital relate in the assessment year 2013-2014 under consideration. The assessee’s claim of receiving share capital/share premium in the assessment year 2011-2012 stand undisputed. Therefore, the assessee wins on this ground too. Accordingly, the ground no.3 stands allowed.
Levy of Penalty u/s 271B r.w.s. 44AB - HELD THAT:- We find that the order of the Tribunal in case of Shri Nandkumar Bhalchandra Bhondve [2016 (10) TMI 216 - ITAT PUNE] was decided in the context of the Assessing Officer’s failure to initiate penalty proceedings u/s.271(1)(c) of the Act. The Pr.CIT assumed jurisdiction u/s.263 of the Act for making good of the said lapses of the Assessing Officer. On these facts in para 8 & 9 the Tribunal held that the Pr. CIT cannot initiate the penalty proceedings - matters relating to initiation of penalty proceedings u/s.271B of the Act is not approved. - Decided in favour of assessee.
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2019 (2) TMI 1836
Addition of commission - assessee submitted that the amount paid to Sh. Surendera Agarwal and Sh. Narendra Agarwal (referred to as `the Agarwal Brothers’) was wrongly depicted as “Commission”, whereas it was, in fact, in the nature of their share in the sale consideration - HELD THAT:- When we note the contents of both the MOUs, it becomes vivid that there is no difference in any of the relevant clauses except for providing a token amount of ₹ 1,001/- in the latter MOU, veracity of which we have discussed and rejected hereinabove. These MOUs were admittedly not registered as well and further no reason has been adduced as to why second MOU was executed when the first MOU was already in existence. It is, therefore, held that the first MOU dated 21-08-2007 has no sanctity and the same was executed just in furtherance of the motive of diverting income to Sh. Agarwal.
We are not inclined to accept the version given by the assessee that he genuinely transferred 33168 sq. ft. of the developed land to Sh. Agarwal at ₹ 335/- per sq.ft. It is, therefore, held that the entire sale consideration of ₹ 3.64 crore belongs to the assessee and the alleged amount shown as `commission’ or part of sale consideration to Sh. Agarwal, pertains to the assessee himself.
`Business income’ shown by the Agarwal Brothers at ₹ 3.34 lakh and ₹ 3.76 lakh respectively is no match to the income of ₹ 1.05 crore which should have been taxed in the hands of the assessee but was sought to be transferred to them. The amount of income transferred by the assessee through these dubious transactions to the Agarwal brothers, was adjusted by them, thereby denying the rightful taxability of ₹ 1.05 crore and odd in the hands of the assessee.
Assessee claimed to have transferred his 50% share in both the pieces of the developed lands to the Agarwal brothers at the uniform rate of ₹ 335/- per sq. ft. However, the interesting point is that the MOU for the first transaction was claimed to have been entered into on 21.8.2007 and for the second transaction on 18.10.20008. Albeit rate of consideration is static at ₹ 335/- per sq. ft., but there is a difference of more than one year in the two MOUs, meaning thereby, that despite a gap of more than one year, the price negotiated with the Agarwal brothers remained fixed at ₹ 335/- per sq. ft., even though the land under the second transaction was more commercial, as ultimately sold to Patel brothers at ₹ 620.76 per sq.ft. against the land under the first transaction at ₹ 548.72 per sq.ft.
In a normal commercial parlance, the price of the second transaction should have been higher than the first one, which is actually not the case here because of the simple façade of the genuine nature of both the transactions of sale of right in the developed land to the Agarwal brothers, which are actually not genuine transactions. This factor also jeopardizes the bona fides of the MOUs and the resultant genuine involvement of Agarwal brothers in the transactions.
We are satisfied that the authorities below were justified in making and sustaining addition.
Disallowance of commission expense paid by the assessee to his wife Smt. Chhaya Mane - HELD THAT:- Assessee claimed to have paid a sum of ₹ 8,80,000/- to his wife as commission. On a pertinent query for adducing specific evidence of services rendered by her, the ld. AR failed to draw our attention towards any such evidence. He made general submissions that Ms. Chhaya Mane convinced the lady members of the family of the sellers and brought them to the registration office for agreement. In view of the fact that the assessee failed to lead even a shred of evidence proving the rendition of actual services by Ms. Chhaya Mane, we have no option but to uphold the addition sustained in the first appeal.
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2019 (2) TMI 1835
Initiation of CIRP Process - Section 33(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In exercise of powers conferred under Sub-Clauses (i), (ii) and (iii) of Clause (a) of Sub-section (1) of Section 33 of the I&B Code, 2016, this Authority proceeds to pass Liquidation Order as follows:- This Authority orders for liquidation of the Corporate Debtor viz., M/s. Praiseworth Infra Private Limited. - This Authority appoints the Resolution Professional viz., Mr. C. Ramasubramaniam as Company Liquidator, who shall issue a public announcement stating therein that the Corporate Debtor is in liquidation - The moratorium declared under Section 14 of the I&B Code, 2016, shall cease to have effect from the date of passing of this order of liquidation.
The petition filed by the Resolution Professional under Section 33(2) of the I&B Code, 2016, for initiation of the Liquidation Proceedings against the Corporate Debtor viz., M/s. Praiseworth Infra Private Limited, stands disposed of.
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2019 (2) TMI 1834
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of dues - existence of debt and dispute or not - HELD THAT:- As it is apparent that there is debt due payable by the Corporate Debtor in fact and they have not disputed it and the records being complete, the Adjudicating Authority rightly admitted the application under Section 7 of I&B Code - Appeal dismissed.
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2019 (2) TMI 1833
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- The notice was sent to the Corporate Debtor vide its order dated 23.10.2018 which is directed by the Tribunal to the Operational Creditor. The Demand Notice issued to the Corporate Debtor. There was no reply to the Demand Notice. Corporate Debtor did not raise any dispute - The Operational Creditor filed Form-3 and 4. It is clear from the record that Operational Creditor issued Demand Notice/ Invoices. The operational creditor also filed order dated 23.05.2018 passed by Micro and Small Enterprises Facilitation Council. The Operational Creditor also filed postal receipts evidencing the dispatch of demand notice. The Operational Creditor also filed copy of Bank Account statement (State Bank of India) Thus, Operational Creditor filed documentary proof in support of the claim and also placed evidence that Corporate Debtor committed default. Therefore, petition is liable to be admitted.
The Adjudicating Authority is satisfied that the Corporate Debtor failed to discharge its liability mentioned in the Petition filed by the Operational Creditor under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC), resulting occurrence of default for an amount of ₹ 32,02,543/-.
Petition is admitted - Moratorium declared.
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2019 (2) TMI 1832
Undisclosed investment of the assessee in the mines - HELD THAT:- During the course of search, an original Ikarnama dated 17.09.2010 has been found which has been executed by Shri Jagdish Panjwani with the assessee, his brother Shri Vijay Makhija, and Kapil Marwah wherein the latter three persons have joined hands as partners in running of the mine owned by Shri Jagdish Panjwani and share of their respective profits and losses have been stated therein.
The existence and contents of the said agreement found at the premises of the assessee during the course of search remain undisputed. Shri Jagdish Panjwani in his statement recorded u/s 131on 09.11.2011 has also admitted that he was only the name lender and actually the investment was made by his relatives i.e. Shri Prakash Makhija and Shri Vijay Makhija.
The said statement also remains unrebutted before us. Retraction so made during the course of assessment proceedings after a considerable lapse of time is clearly an afterthought and there is nothing which support such retraction so made by the assessee. No justifiable reasons to disturb the detailed and well-reasoned findings so given by the AO and the ld CIT(A). Ground of appeal is dismissed.
Undisclosed investment of the assessee in the house - HELD THAT:- The statement of the assessee, Vijay Kumar Makhija was also recorded during post-search investigation u/s 131 wherein he has confirmed the purchase of the house and also confirmed the surrender of ₹ 6 lacs so made by his brother Prakash Makhija on his behalf. Shri Ramesh Chand Jain in his statement recorded u/s 131 on 09.11.2011 has also admitted that he managed the sale of the property to the assessee for a consideration of ₹ 20.75 lacs. The existence and contents of the said agreement found at the premises of the assessee during the course of search therefore remain undisputed. The retraction so made during the course of assessment proceedings after a considerable lapse of time is clearly an afterthought and there is nothing which support such retraction so made by the assessee. We see no justifiable reasons to disturb the detailed and well-reasoned findings so given by the AO and the ld CIT(A). In the result, the ground of appeal is dismissed.
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2019 (2) TMI 1831
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- The application in Form 5 is complete in all respects - The petitioner-operational creditor has filed this petition in prescribed form after expiry of 10 days of service of demand notice and thereby, complying with the requirement of sub-sections (1) and (2) of Section 9 of the Code. The petitioner has also complied with various requirements of sub-clauses of sub-section (3) of Section 9 of the Code. The bank statement issued by Union Bank of India, where the petitioner is maintaining its account is also filed and there is also a certificate from the bank, Annexure A-7, to the effect that no credits have been received from the respondent in the account of the petitioner from March 2014 till 20.11.2017.
All the ingredients of clause (i) of sub-section (5) of Section 9 of the Code stand fulfilled as the application is found to be complete in all respects - Petition admitted.
The matter be now posted on 22.02.2019 for passing of formal order of declaration of moratorium and appointment of Interim Resolution Professional.
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2019 (2) TMI 1830
Penalty u/s 271(1)(c) - absence of any specific mention in the show-cause notice - Defective notice - HELD THAT:- As relying on the decision of CIT & Another –vs.- Manjunatha Cotton & Ginning Factory
[2013 (7) TMI 620 - KARNATAKA HIGH COURT] is squarely applicable in the present case and respectfully following the same, we hold that the show-cause notice issued by the Assessing Officer under section 274 for the year under consideration not being in accordance with law, the penalty order passed by the Assessing Officer in pursuance thereof is liable to be cancelled being invalid. We accordingly cancel the penalty imposed by the Assessing Officer under section 271(1)(c) and confirmed by the ld. CIT(Appeals) and allow the appeal of the assessee.
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9911796707
