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Showing 301 to 320 of 2056 Records
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2019 (7) TMI 1757
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - HELD THAT:- The creditor bank counsel has mentioned that it is not the case of the corporate debtor that it has not defaulted in making repayment to the bank. It is also not the case of it that debt and default are not in existence. Indeed, the bank has also initiated proceedings against the debtor under the SARFAESI Act as well as under the RDB Act. In this backdrop, I do not believe this inconsistency regarding occurrence of default, especially in a case like this, will not have any bearing either on limitation or existence of debt and default.
Time Limitation - HELD THAT:- The bank has declared it as a NPA on June 30, 2015. Thereafter, since the corporate debtor itself sent a letter admitting the liability pending against the corporate debtor on April 13, 2017 as reflected above, it will become an acknowledgment falling under section 18 of the Limitation Act, 1963. If at all any difference in computation is there, the corporate debtor is entitled to place its grievance before the resolution professional. As to limitation point is concerned, this Bench hereby holds that the claim is within limitation.
In the present case, it is not the case of the corporate debtor counsel that this admission of debt making an offer for one-time settlement in the letter dated July 3, 2017 is not related to the present claim and it is also not the case of the corporate debtor that there is some other claim against this corporate debtor and this letter of acknowledgment dated July 3, 2017 is not related to this claim - there are no merit in the defence raised by the corporate debtor counsel stating that an offer for one-time settlement dated July 3, 2017 does not amount to acknowledgment.
Petition admitted - moratorium declared.
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2019 (7) TMI 1756
Liability on short payment of tax - Huge difference between purchases and sales turnover - Annual Scrutiny cross verification of the buyer and seller as per Annexure& I Web report - Verification of purchase details from other dealer Annexure II and purchase details from this dealers annexure I - Check post Movement Details - Levy of tax on deletion of assets - Short payment of tax - Other income.
Huge difference between purchases and sales turnover - Verification of purchase details from other dealer Annexure II and purchase details from this dealers annexure I - HELD THAT:- Difference between purchase and sales turnover, pertains to difference between purchases and sales turnover. According to the respondent, as articulated in the impugned order, from verification of books of accounts, it was noticed that the dealers had reported that their purchases during the year is normally low when compared to the sales and on this basis, tax was levied after examining the records furnished by the writ petitioner whereas Verification of purchase details from other dealer Annexure II and purchase details from this dealers annexure I pertains to claim of Input Tax Credit [ITC]. Here, the pivotal question is whether the purchases were made from unregistered dealers had to be considered. For examining this, the Assessing Authority had to necessarily look at Annexure& II of the sellers - though it appears that the heads are not severable, on a closer scrutiny, it comes out clearly that head nos.2 and 4 are clearly severable and therefore, the submission made by learned Senior counsel that the Assessing officer cannot dissect the heads, does not carry the writ petitioner any further in this case. In other words, this submission is negatived by this Court for the reasons that have been set out thus far.
Short payment of tax - HELD THAT:- With regard to this head which is the other head under which tax has been levied, that pertains to short payment of tax and it is nobody s case that it is dovetailed with any of the other issues. Therefore, this head is a stand apart issue.
Another aspect of the matter, which has been noticed by this Court is that there is no disputation or disagreement about the obtaining legal position that any number of assessment orders can be passed by an Assessing officer in exercise of revisional powers under Section 27 of TNVAT Act. When this is the obtaining legal position, this Court finds no infirmity or illegality in the respondent severing 2 out of 8 heads, deferring the same, levying tax on two other heads and dropping four other heads in favour of the writ petitioner dealer.
With regard to alternate remedy rule itself, as already mentioned, it is clearly a self & imposed restraint by Courts exercising writ jurisdiction. In other words, alternate remedy rule is not a rule of compulsion, but it is a rule of discretion. Though the alternate remedy rule is not an absolute rule, Hon ble Supreme Court, in UNITED BANK OF INDIA VERSUS SATYAWATI TONDON AND OTHERS [2010 (7) TMI 829 - SUPREME COURT], held that in cases pertaining to tax, cess etc., alternate remedy rule has to be applied with utmost rigour.
Petition dismissed.
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2019 (7) TMI 1755
Interpretation of Statute - Clause 21 of the Constitution and Bye Laws of the second Respondent - whether a private agreement entered into between the Appellant and the second Respondent in the form of the Constitution and Bye Laws of the latter can, by conferring exclusive jurisdiction on the courts at Chennai, oust the writ jurisdiction of the Bombay High Court Under Article 226 of the Constitution?
HELD THAT:- The Constitution and Bye Laws of the second Respondent are a private agreement between the Appellant and the second Respondent. The decision of the Bombay High Court relied solely on Clause 21 to hold that its own writ jurisdiction, and the jurisdiction of all other courts, is ousted. Whether a private agreement can oust the writ jurisdiction of a High Court merits further enquiry - It is a well settled principle of contract law that parties cannot by contract exclude the jurisdiction of all courts. Such a contract would constitute an agreement in restraint of legal proceedings and contravene Section 28 of the Indian Contract Act 1872.
Parties cannot by agreement confer jurisdiction on a court which lacks the jurisdiction to adjudicate. But where several courts would have jurisdiction to try the subject matter of the dispute, they can stipulate that a suit be brought exclusively before one of the several courts, to the exclusion of the others. Clause 21 does not oust the jurisdiction of all courts. Rather, the Appellant and the second Respondent have agreed to submit suits or legal actions to the courts at Chennai - Article 226 (1) of the Constitution confers on High Courts the power to issue writs, and consequently, the jurisdiction to entertain actions for the issuance of writs. Article 226. (1) Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including [writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose].
The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. Thus, the mere fact that the High Court at Madras is capable of granting adequate relief to the Appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter - In exercising its discretion to entertain a particular case Under Article 226, a High Court may take into consideration various factors including the nature of the injustice that is alleged by the Petitioner, whether or not an alternate remedy exists, or whether the facts raise a question of constitutional interpretation. These factors are not exhaustive and we do not propose to enumerate what factors should or should not be taken into consideration. It is sufficient for the present purposes to say that the High Court must take a holistic view of the facts as submitted in the writ petition and make a determination on the facts and circumstances of each unique case.
The court examined the facts holistically, noting that the contract was executed and to be performed in Aligarh, and the arbitrator was to function at Aligarh. It did consider that the contract conferred jurisdiction on the courts at Aligarh, but this was one factor amongst several considered by the court in determining that the High Court of Calcutta did not have jurisdiction - In the present case, the Bombay High Court has relied solely on Clause 21 of the Constitution and Bye Laws to hold that its own writ jurisdiction is ousted. The Bombay High Court has failed to examine the case holistically and make a considered determination as to whether or not it should, in its discretion, exercise its powers Under Article 226. The scrutiny to be applied to every writ petition Under Article 226 by the High Court is a crucial safeguard of the Rule of law under the Constitution in the relevant territorial jurisdiction. It is not open to a High Court to abdicate this responsibility merely due to the existence of a privately negotiated document ousting its jurisdiction.
It is certainly open to the High Court to take into consideration the fact that the Appellant and the second Respondent consented to resolve all their legal disputes before the courts at Chennai. However, this can be a factor within the broader factual matrix of the case. The High Court may decline to exercise jurisdiction Under Article 226 invoking the principle of forum non conveniens in an appropriate case. The High Court must look at the case of the Appellant holistically and make a determination as to whether it would be proper to exercise its writ jurisdiction - Appeal allowed - decided in favor of appellant.
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2019 (7) TMI 1754
Undisclosed payment - Addition based on seized material - assessee never provided the details of the transaction either during the course of assessment proceedings or thereafter and the assessee was in the exclusive knowledge - close business relationship between the assessee and PA - HELD THAT:- Tribunal has formed opinion that there was no payment of USD 16 Lacs which was added by the Assessment Officer to the income of the assessee. The Tribunal held that the said amount may be demanded by the assessee but there was no evidence of the same having been paid. The entire issue is thus based on appreciation of evidence on record. No question of law arises. In that view of the matter, Income-tax Appeal is dismissed.
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2019 (7) TMI 1753
Determination of rental income - Income from house property - AO treating two properties as deemed let out and determining on an adhoc basis notional rental income for both the properties - HELD THAT:- As submitted that a decision of ITAT in the case of co-owner Smt. Vidyaben Bhagwan Kotak [2017 (9) TMI 1917 - ITAT MUMBAI] in respect of the same flats in which she had half shareholding in Flat No. 16 & 18 at Kalpana, in which said order has accepted that these flats are duplex flats used by the assessee having common staircase and hence it was held that they can be considered as one house which is adjacent to each other.
We find that since there is an ITAT order in the case of co-owner, which has not been set aside by Hon'ble Hon'ble Jurisdictional High Court, we deem it appropriate to remit this issue to the file of the Assessing Officer. The Assessing Officer shall consider this additional evidence and decide accordingly. We further hold that there is no estoppel against the assessee in now offering self occupied property and deemed let out property in a different manner than that offered initially. Assessee is very much entitled to plan its taxation so as to minimize the burden so long as the method is not colourable. Here the approach of the assessee can by no stretch of imagination be said to be a colourable device.
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2019 (7) TMI 1752
Interpretation of statute - Manpower recruitment or supply agency service - dispute straddles the pre-‘negative list’ and ‘negative list’ regimes with different meanings assigned to ‘taxable service’ under the two schemes - HELD THAT:- The issue of taxability stands covered by the decision of the Tribunal in Volkswagen India Pvt Ltd v. Commissioner of Central Excise, Pune-I [2013 (11) TMI 298 - CESTAT MUMBAI] and that this plea before the original authority had been discarded on the ground that the issue had not attained finality.
The only ground cited in the impugned order for discarding the applicability of decision of the Tribunal in re Volkswagen India Pvt Ltd is the apparent lack of finality of the issue decided therein. Even if such justification was offered at that stage, the dismissal of appeal of Revenue would require it to be followed without fail as it has been rendered in identical circumstances - The decision of the Tribunal in re INA Bearings India Pvt Ltd, [2017 (12) TMI 1143 - CESTAT MUMBAI] relied upon by Learned Authorised Representative, though having taken note of the submission of relevance of the decision in re Volkswagen India Pvt Ltd, did not take the findings therein into consideration. Accordingly, the later decision does not bind us.
In the impugned order, there is no finding on taxability for the period thereafter which should have been determined for conformity with section 65B(44) of Finance Act, 1994 - Furthermore, the very reimbursability of the payments made to the overseas entity has been the basis for discarding the coverage under ‘manpower recruitment or supply agency service’ and, in the context of the decision of the Hon’ble Supreme Court in re Intercontinental Consultants and Technocrats Pvt Ltd [2018 (3) TMI 357 - SUPREME COURT] declaring the provisions of rule 5(1) of Service Tax (Determination of Value) Rules, 2006, for addition of ‘reimbursable expenses’ within ‘gross value’, to be ultra vires, the coverage of such remittance within ‘service’ is not tenable.
The demand for the period after 1st July 2012 is also set aside - Appeal allowed - decided in favor of appellant.
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2019 (7) TMI 1751
Deduction u/s 80HHC - not to exclude the Sample Design and Development charges receipt amounting to ₹ 1352700/- for the calculation of deduction - assessee failed to file documentary evidence to justify its claim and as per provisions of explanation (baa) of section 80HHC, for computing “profits of business” 90% of sums referred to in clauses (iiia) to (iiie) of section 28 or any receipt by way of brokerage, commission, interest, rent, charges of any receipt of similar nature included in such profits have to be deducted from the profits and gains of business or profession - HELD THAT:- We find an identical issue had come up before the Tribunal in the assessee’s own case in the preceding assessment year. We find the Tribunal, in assessee’s own case [2017 (5) TMI 1639 - ITAT DELHI] held that the receipts on account of sample design and development charges are export turnover and represents the business income of the assessee and, thus, cannot be excluded from the receipt under Explanation (baa) of section 80HHC of the Act. In view of the consistent decision of the Tribunal, we hold that receipts on account of sample design and development charges are export turnover and represents the business income of the assessee and this cannot be excluded from the receipts under Explanation (baa) of section 80HHC.
DEPB receipts - CIT(A) directed the Assessing Officer to exclude the DEPB receipts for the calculation of deduction u/s 80HHC by accepting the contention of the assessee and without examining the actual profit component or loss. Since the computation along with evidence was not submitted by the assessee either before the Assessing Officer or before the CIT(A) and since no such details are available in the audited accounts of the assessee as in the P&L Account, there is only one entry i.e., receipt on account of DEPB, therefore, we agree with the argument of the ld. DR that this matter should be restored to the file of the Assessing Officer with a direction to examine the profit element in the sale of DEPB licence and to recompute the deduction u/s 80HHC in the light of the decision of the Hon'ble Supreme Court in the case of Topman Exports [2012 (2) TMI 100 - SUPREME COURT]. The Assessing Officer shall decide the issue as per fact and law.
Interest income on fixed deposits for the computation of deduction u/s 80HHC - The assessee fairly conceded that this issue has been decided against the assessee by the Hon'ble High Court in the case of Ram Honda Power Equipment [2007 (1) TMI 86 - HIGH COURT, DELHI]. In view of the above submission of the ld. counsel for the assessee, this issue is decided against the assessee.
Denial of deduction being contribution to Group Gratuity Policy of LIC of India - HELD THAT:- We find an identical issue had come up before the Visakhapatnam Bench of the Tribunal in the case of District Cooperative Central Bank vs. ITO [2018 (4) TMI 553 - ITAT VISAKHAPATNAM]. We find the Tribunal relying on various decisions held that the assessee is entitled for deduction for payment of group gratuity to LIC of India towards group gratuity scheme - Thus we hold the assessee is entitled to the deduction for contribution to Group Gratuity Policy of LIC of India.
Addition on account of ALP of the international transaction - royalty payment on various services - TPO disallowed the royalty paid by the assessee to its AE on the ground that the assessee is a contract manufacturer of its AE and is not deriving any benefit from payment of royalty and, therefore, he should not have paid any royalty - HELD THAT:- A perusal of the royalty agreement w.e.f. 1st April, 2003 shows that the terms and conditions of the agreement are same as that of royalty agreement applicable during assessment years 2002-03 and 2003-04. The agreement effective as on 01.04.2001 as applicable during assessment years 2002-03 and 2003-04 was a single agreement which dealt with both technical know-how and assistance and trade mark whereas in the current year the assessee had split the royalty agreement into two separate agreements i.e., technical know-how and assistance agreement and use of trade mark made under the label of corporate agreement.
We find the Tribunal in assessee’s own case for assessment year 2003-04. [2017 (5) TMI 1639 - ITAT DELHI] held royalty expenditure by the assessee was fully and exclusively incurred in the regular course of business and after incurring this expenditure the assessee declared profit @19% which was better than the GP rate of 12 & 16% declared by the comparables. Therefore, it was at arm’s length and the addition made by the AO was not justified which has rightly been deleted by the ld. CIT(A). We, therefore, considering the totality of the facts, do not see any valid ground to interfere with the findings given by the ld. CIT(A).
We further find some force in the argument of the ld. counsel for the assessee that the transaction is revenue neutral as the royalty expenses are embedded in the sale price from the AEs to whom goods are sold and pays to other AE i.e., PRC, USA. The price to be charged to buyer is determined on the basis of cost plus mark up. Further, the assessee is consciously recovering royalty from AEs by including it in the price quoted to the buyer and royalty is also part of cost of production and, therefore, arm’s length nature of expenses is established while benchmarking the international transaction of export of sales. We also find force in the argument of the ld. counsel for the assessee that the agreements with PRC, USA are for providing technical know-how and allowing use of trade names and trade marks by PRC, USA to the assessee and not a contract manufacturing agreement and, therefore, the action of the TPO in re-writing the agreement is not permissible in law. Further, for the purpose of computing the ALP on export garments, the assessee has compared itself with companies which are full-fledged risk bearing manufacturers, a comparison which has been accepted by the TPO.
TPO has himself acknowledged that for the purpose of manufacture and export of garments, the assessee is a full-fledged manufacturer and not a contract manufacturer. The TPO has also accepted the functional, assets and risk profile of the assessee given in the TP documentation which is that of full-fledged risk bearing manufacturer - We further find the assessee during the impugned assessment year has exported to non-AEs as well as AEs and, therefore, it is factually incorrect on the part of the TPO that the sale of the entire finished product is to the AE.
In view of the above discussion and considering the fact that the Tribunal in assessee’s own case in the immediately preceding assessment year has deleted the adjustment made by the A.O./TPO on account of payment of royalty, therefore, we uphold the order of the CIT(A) on this issue and the ground raised by the Revenue on this issue is dismissed.
Depreciation @ 60% on computer accessories and peripherals, namely, UPS and printers - HELD THAT:- We find the issue relating to depreciation on computer peripherals, namely, printers and UPS at 60% stands decided in favour of the assessee by the coordinate Benches of the Tribunal where it is being consistently held that printers and UPSs are integral part of the computer system and are entitled to depreciation @ 60%. We, therefore, uphold the order of the CIT(A) in allowing depreciation @ 60% on computer peripherals and reverse the order of the CIT(A) in allowing 25% depreciation on UPSs as against 60% claimed by the assessee. Thus, the ground raised by the Revenue on this issue is dismissed and the additional ground raised by the assessee in Cross Objections is allowed.
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2019 (7) TMI 1750
Advance ruling - Fees for technical services or business income taxable in India - Payment receivable for various services in terms of the services agreement - chargeable to tax under the Act read with India-UK DTAA? - interpreting the term ‘make available’ - Services rendered are included in the "fees for technical services" (FTS) or not? - rendering the services as per agreement did not make available the technical knowledge and the experience possessed by it - HELD THAT:- The nature of services rendered in this case were 'corporate head office services'; 'divisional global services'; and 'divisional regional services' which related to financial, executive, marketing and administrative matters. In view of the decision as given in this case, this does not support the cause of the revenue.
When we examine the facts of the present case on the above yardstick of ‘make available’ as decided in the case of Intertek [2008 (11) TMI 9 - AUTHORITY FOR ADVANCE RULINGS], it is found that the nature of services in this case are such that the technical knowledge, skills, etc., was not passed on and did not remain with the recipient of the service.
Nature of services rendered in this case is found to be identical with the services rendered in the case of Ernst & Young (P). Ltd. [2010 (3) TMI 108 - AUTHORITY FOR ADVANCE RULINGS], relied upon by the Applicant. Applicant while rendering the services as per agreement did not make available the technical knowledge and the experience possessed by it.
Thus we hold that the consideration paid for services rendered by the applicant is not covered by fee for technical services in terms of Article 13.4 of Indo-UK Tax Td.
Ruling:-
Ques.1 The payment receivable by the Applicant from DTZ International Property Advisers Private Limited (hereinafter referred to as “DTZ India”) for various services in terms of the services agreement dated 17th February 2011 is not in the nature of “Fee for Technical Services” under Article-13.4 of India-UK Tax Treaty as the services rendered by the non-resident company do not meet the requirement of ‘make available’ under the Treaty. The payment will also not be treated as business income taxable in India in terms of India-UK Tax Treaty as the non-resident company does not have any PE in India.
Que.2 As the answer to question No.1 is in negative, DTZ India is not liable to deduct tax at source under section 195 of the Act on the amount payable to DTZ UK in terms of the services agreement dated 17th February 2011.
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2019 (7) TMI 1749
Levy of Entry Tax - no returns of entry tax have been filed - determination of purchase turnover of the vehicles to the best of his judgment - Section 15(1) of the Entry Tax Act - HELD THAT:- Admittedly, though an opportunity was granted to the petitioner to file objections, the petitioner had not filed any, which has resulted in the impugned order being passed confirming the proposals made.
Though the order of assessment is impugned before me, learned counsel for the petitioner restricts his plea to the set off of Value Added Tax [VAT] against the entry tax liable to be paid in terms of Section 4 of the Entry Tax Act. That is so. However, the petitioner has not filed his objections to the assessment proposal when it could have raised the question of set off - the assessing authority has also granted no opportunity of personal hearing. Balancing the interests of justice, I am thus inclined to remand the matter and set aside the impugned order. Mr.A.Thiyagarajan, appearing for the respondents does not have any serious objection to such remand.
The petitioner will appear before the assessing officer on 09.08.2019 [Friday] at 10.30 a.m., and produce all particulars in support of its stand, including the question of set off of VAT as against entry tax liability - petition allowed.
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2019 (7) TMI 1748
Enforceability of a foreign award - jurisdiction of the Delhi High Court to enforce the same - HELD THAT:- Firstly, the High Court is required to decide the issue about the territorial jurisdiction to enforce the award under Section 47 of the Act. In case the High Court comes to a conclusion that it has the jurisdiction to enforce the award, obviously the High Court has to proceed under Section 48 and at that stage, the requisite information in Form 16A has to be filed. Thus, we are only deferring the stage at which information under Form 16A is to be filed. We request the High Court to address the question of jurisdiction first. However, the impugned order passed by the High Court restraining the appellant from creating any third party interest or parting with the possession of Westin Hotel, Rajarhat, Kolkata is affirmed.
The restraint order passed by the High Court shall continue till the decision is taken by the High Court - Appeal disposed off.
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2019 (7) TMI 1747
Dishonor of Cheque - application of the petitioners for keeping the proceedings of the trial in abeyance has been dismissed - HELD THAT:- This Court finds that even before the trial Court started adjourning the case on joint request, the opportunity was granted to the petitioners to lead their evidence in defence. The order dated 08th January, 2019 would show that even the last opportunity was granted to the petitioners to produce their evidence in defence. Therefore, this Court does not find any illegality or perversity with the order on the face of it, warranting any interference with the same, so far as the merits of the case are concerned.
However, since the petitioners are accused of an offence for which they can suffer even imprisonment, therefore, lest the petitioners should have any grievance, though mistaken, that they have not been granted fair opportunity to defence themselves against the charge, it would not be unjustified to grant them one more opportunity to lead their evidence in defence, though by putting them to some financial burden - the present petition is disposed of with a direction to the trial Court to provide one effective opportunity to the petitioners to lead their defence evidence, however, subject to payment of ₹ 25,000/- as costs.
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2019 (7) TMI 1746
Rectification of mistake - HELD THAT:- The order is rectified as under:
“At para 8 of the order at the third, the AY should be read as 2010-11 instead of AY 2009-10.”
Para 10 of the order is replaced as under:
“We notice that AY 2011-12 was pending assessment u/s 143(3) and, therefore, it is abated. With regard to AY 2010-11, it was reopened u/s 153A and this issue was raised for the first time before the AO. With regard to AY 2012-13, 2013-14, 2014-15 and 2015-16, returns of income for these AYs were filed subsequent to search conducted on 22/02/2012. Since facts in these AYs are similar to AY 2010-11, following the decision in AY 2010-11 (supra), we dismiss all the appeals filed by the revenue for the AYs under consideration.”
MAs filed by the assessee are allowed.
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2019 (7) TMI 1745
Principles of Natural Justice - extension of period of limitation for filing appeal - statutory remedy or appeal provided under Section 35 of the Central Excise Act, 1944 - HELD THAT:- It is clear that in view of the fact that the order-in-original was passed without considering the objections and in violation of the principles of natural justice and as it resulted in failure of justice, the petitioner herein can, in the facts and circumstances of the case, assail the order-in-original passed by the 3rd respondent and it is not necessary for the petitioner to assail the orders dismissing the appeal as time-barred. Hence, we are inclined to dispose of the writ petition with appropriate directions.
The matter is remitted to the 3rd respondent for consideration - Petition allowed by way of remand.
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2019 (7) TMI 1744
Jurisdiction - power of DRI to issue SCN - non adjudication of SCN - scope of amended Sub-section (9) and newly inserted (9A) of Section 28 w.e.f. 28.03.2018 - retrospective or retroactive - HELD THAT:- For detailed orders, see order of even date passed in M/S HARKARAN DASS VEDPAL VERSUS UNION OF INDIA AND ORS [2019 (7) TMI 1307 - PUNJAB AND HARYANA HIGH COURT].
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2019 (7) TMI 1743
Addition on account of motor accident claims of earlier years - HELD THAT:- As decided in own case [2018 (1) TMI 1622 - ITAT AHMEDABAD] merely because the MACT awards are booked by the assessee at a later point of time than the date of the award cannot be reason enough to decline the claim for deduction in respect of these awards. It is sometimes possible, rather its inherent mechanism of the system as it exists, that sometimes there is considerable delay in communicating the awards granted by MACT - quantification of claims is verified by the statutory auditors as also the CAG audit teams, and the same method of accounted is being followed by the assessee for last 50 years. As there is no change in method of accounting, as there is no duplication of claims, and, as assessee does not anyway gain anything from delaying accounting for these claims, we see no reasons to reject the claims merely because these claims are accounting for, in the books of accounts, at a point of time later than awards being granted i.e. when the assessee gets to know about the same.CIT(A) has given a categorical direction to the Assessing Officer for verification of claim on account of the liability having been crystallized in the relevant previous year. Grievance of the Assessing Officer, regarding crystallization of liability, does not, therefore, survive any longer. - Decided against revenue.
Addition on account of capitalization of reconditioning of Buses & assemblies etc. - HELD THAT:- The issue is squarely covered in favour of the assessee by and under an order dated 24.01.2013 passed by the Co-ordinate bench [2013 (1) TMI 758 - ITAT AHMEDABAD] in assessee’s own case for A.Y. 2005-06 in appeal preferred by the Revenue. We have carefully considered the order passed by the Co-ordinate Bench as mentioned hereinabove. We find that identical issue has been decided in favour of the assessee
Income from license fees of canteen - as business income OR income from house property - HELD THAT:- As decided in own case [2018 (1) TMI 1622 - ITAT AHMEDABAD]Admittedly, the major part of the income for the licence fee of canteen not from staff, but from outsiders and hence judgment is not applicable to this receipt at all, and even for the receipt of rent on account of staff quarter, the judgment is not applicable because it could not be shown by the learned AR of the assessee that the facts are identical. Regarding the argument that this income was taxed under the head income from business in earlier years, we find that on the plea of consistency, it cannot be held that if a mistake is committed by the AO in earlier years, the same should be perpetuated. This is not case of the assessee that the rental income is not in respect of house property owned by the assessee, and hence in our considered opinion, this rental income is taxable under the head income from house property, as has been held by the authorities below, and hence, we do not find any reason to interfere with order of the learned CIT(A) on this issue, and this ground of the appeal of the assessee is dismissed.
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2019 (7) TMI 1742
Penalty u/s 116 of CA - Inordinate delay in adjudication process - quantity mentioned in the Bills of Lading is not prima facie evidence for the quantity loaded on board the vessel - HELD THAT:- In an identical situation raised by a Steamer Agent before this Court in M/S. TRANSWORLD SHIPPING SERVICES PVT. LTD. VERSUS THE GOVERNMENT OF INDIA, THE COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEALS) , THE JOINT COMMISSIONER OF CUSTOMS [2018 (3) TMI 283 - MADRAS HIGH COURT], this Court had considered these grounds of lapses by following various decisions and held that the authorities, while exercising their powers under Section 116 of the Customs Act, should complete the adjudication proceedings within a reasonable time, inspite of the fact that the Act does not provide for limitation and thereby held that the adjudication proceedings is unreasonable and the penalty imposed is set aside.
The decision in the mentioned order is followed - petition allowed.
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2019 (7) TMI 1741
Setting up of GST Tribunals in various states - HELD THAT:- On previous occasions the Court had asked for submission of the status report from the Central as well as the State Government as to what progress has been made by them in setting up of the GST State Tribunal at Allahabad, which is a Principal Seat of the Allahabad High Court. The report has as yet not submitted - All the respondents pray for and are allowed two weeks' further and no more time to submit a compliance report.
List this matter on 19.07.2019.
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2019 (7) TMI 1740
Accrual of income - Addition being interest accrued on non-performing assets, even though the assessee is following a mercantile system of accounting - Whether the assessee is entitled to follow a hybrid system of accounting by showing the interest on non-performing assets only on receipt basis, while otherwise following a mercantile system of accounting contrary to the provisions of Section 145 of the Income Tax Act? - HELD THAT:- Following the ratio laid down by the Hon'ble Supreme Court in Vasisth Chay Vyapar Ltd. [2018 (3) TMI 56 - SUPREME COURT] substantial questions of law are decided in favour of the appellant – assessee.
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2019 (7) TMI 1739
Seeking approval of the Resolution Plan - section 30(6) of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Resolution Professional has certified that the approved Resolution plan provides for payment of insolvency resolution process cost on priority in accordance with the Regulations and IBC, 2016. As per regulation 38(1)(a) of the CIRP regulations, the source of payment of CIRP cost and repayments of all unrelated Financial Creditors on priority basis has been identified and Resolution Applicant will sell one of his own properties and pay the entire CIRP cost and repayment of Unrelated Financial Creditors worth ₹ 21 Crores from that funds on priority basis - the Resolution Plan meets the requirements of section 30(2) of the Code and that the resolution plan has provisions for its effective implementation.
Moreover, the Resolution Plan has been unanimously approved by the CoC and has been submitted in compliance of Section 30 of the Code for approval. Resolution Professional has confirmed that the Resolution Plan is compliant to sub-sections (a) to (f) of Section 30(2) of the Code and also comply Regulation 38 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. He has further certified that it has dealt with the interests of all stakeholders.
The resolution plan approved by the CoC, is in accordance with the sub-section (2) of Section 30 read with Section 31 of the Code and as the Resolution Applicant is not disqualified under section 29A of the Code and as no infirmity seems to have brought out upon screening of the Resolution Plan - Resolution Plan approved.
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2019 (7) TMI 1738
Nature of expenditure - expenditure as license fee payment to M/s. Remfry and Sagar Consultants Pvt. Ltd. (RSCPL) for use of goodwill of ‘Remfry & Sagar’ and to practice in this name - revenue or capital expenditure - HELD THAT:- We find that this issue is permeating from the earlier years and the Tribunal after noting the entire facts and rival contentions made by the parties as well as relevant provision of law has held that the license fee paid to M/s. RSCPL is allowable as Revenue expenditure - thus we hold that the said deduction claimed by the assesse on account of license fee paid to M/s. RSCPL is allowable as Revenue expenditure u/s.37. Consequently, ground no.1 of the Revenue is dismissed.
Disallowance on account of TDS payable - case of the AO was that this was a part of expenditure and has been claimed as expenditure in P&L account and since assessee is following cash system of accounting, therefore, same cannot be allowed as it remain payable on 31st March, 2011 - HELD THAT:- Before us, learned counsel has submitted the details of challan of TDS deposited on 24.07.2011 and if the TDS deducted has been deposited within due date prescribed under the rules then credit of the same has to be allowed. Thus, this issue is decided in favour of the assessee.
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