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Showing 321 to 340 of 1183 Records
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2021 (6) TMI 863
Undisclosed investment in land - income in the hands of the partners - assessee submitted before us that the Ld. AO failed to appreciate the fact that the partners of the appellant firm has invested in the said land for and on behalf of the assessee firm out of the unaccounted income earned from the scheme “Savvy Serene” belonging to the partnership firm Savvy Infrastructure Company - HELD THAT:- The case of the assessee is this that the partners of the firm have invested in the land for and on behalf of the firm out of undisclosed receipt of Savvy Infrastructure.
It is also the further case of the assessee that the firm was incorporated on 23.02.2007 and majority payments in respect of such purchase of land was made prior to the date of incorporation and therefore, the same is not out of the undisclosed income of the firm. It is an admitted position that the appellant firm was incorporated on 23.02.2007. As appears from the Audited Annual Accounts of the appellant firm relevant portion whereof has been reproduced in the order passed by the CIT(A) evidencing that there was no working capital funds available in the first year of incorporation i.e. 2007-08.
The particular facts that the assessee firm was incorporated only on 23.02.2007 and gained the legal status as a firm only on that particular date upon such incorporation and, thus, the assessee company did not exist when the impugned income was earned. Thus, the assessee cannot be made responsible for evasion of tax on the ground of alleged payment made prior to such incorporation and/or registration of the partnership firm.
The present addition has been made in the case of the appellant also states that one payment is made on 01.04.2007 which falls in A.Y. 2008-09 and not in A.Y. 2007-08 and therefore, even balance payment cannot be considered as undisclosed payment in the hands of the appellant for the current Assessment Year.
Since the AO has not been able to establish that the appellant had any source of making for such huge unaccounted payment particularly with the payment towards on-money of land purchase were prior to the incorporation of the appellant firm and part payment was in subsequent Assessment Year, the condition of addition is not satisfied. Addition made by the Ld. AO to the tune on the ground that on-money payment towards land is made by the appellate firm has been rightly decided against the Revenue by the CIT(A).
Admittedly before making such a direction upon the Ld. AO the aggrieved party being the partners of the farm have not been given an opportunity of being heard which is sine qua non in terms of Explanation 2 of Section 153 - respectfully relying upon the judgment we observe that the direction given by the Ld. CIT(A) upon the Ld. AO to initiate proceedings to assess this income in the hands of the partners, if deemed fit be expunged. Finally the appeal preferred by the Revenue is found to be devoid of any merit and hence dismissed. Appeal filed by the Revenue is dismissed.
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2021 (6) TMI 862
Exemption u/s 11 - denying the benefits of registration u/s 12A - assessee has spent the amount as per the direction of the Director Marketing, thus, the claim of the assessee was allowed - HELD THAT:- From the order of the AO, there is no dispute that the AO had accepted the claim of the assessee with regard to spending the sum and the same was allowed. On perusal of the statement of receipts and payments, it is seen that the total receipts of the assessee for the year under consideration and the total payments and the AO had accepted the claim of the assessee.
Thus, the assessee has spent more than the actual receipts, accordingly, it is seen that the AO has not made out a case of violation of provisions of section 11(2). Once it is accepted that the expenditure is allowable against the total receipts of the year for charitable purpose it is established that the assessee has spent more than 85% of the receipts and thus there is no case for making further addition.
We set aside the order of the Ld.CIT(A) and delete the addition made by the AO. The appeal of the assessee is allowed.
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2021 (6) TMI 861
Levy of penalty u/s 112 (b) of the Customs Act - appellant did not file the IGMs in question - fake items of leading brands were being imported into India - HELD THAT:- It is not the case of the Revenue that it was the appellant who filed the Bill-of-Lading. From the documents placed on record, this aspect also becomes clear since the appellant has maintained all along that it did not file the IGMs in question which fact not denied by the Revenue.
Section 112 of Customs Act has wide amplitude to cover any person dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 ibid. This implies that the requirement of mens rea is sine qua non to fasten the impugned penalty. Admittedly, the appellant is only a shipping liner who not only did not file the IGMs in question, but also did not file even the Bill-of-Lading. Facts borne on record reveal that the appellant has maintained all along that it never had the possession of the impugned goods nor was in any way concerned with the carrying, removing, etc., of the consignments in question and hence, it was beyond their comprehension that the goods in question were per se liable for confiscation under Section 111 (d) ibid.
Undisputed peculiar facts of the case are that the appellant is neither the importer nor the owner who had acquired possession nor in any way concerned with the carrying, removing, etc., of the goods in question, and Revenue has nowhere ascribed knowledge of the appellant as to the confiscation - the Revenue has also nowhere offered redemption in lieu of the confiscation in so far as the appellant is concerned, which establishes that the appellant is in no way concerned nor was it responsible in any way for carrying, removing, etc., of the goods in question.
The penalties, as levied under Section 112 (b) of the Customs Act, 1962, are not justified - Appeal allowed - decided in favor of appellant.
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2021 (6) TMI 860
Refund of the Service Tax - Tax was paid under mistake of law - change in tax regime - freight services received from foreign shipping line - Reverse Charge Mechanism - N/N. 15/2017-ST and 16/2017-ST, both dated 13.04.2017 - HELD THAT:- The Revenue having collected per force the Service Tax along with interest, the appellant is pushed into a situation where its refund claim is denied and even the credit of Service Tax so paid is also not allowed to be availed, with the introduction of the CGST Act in 2017. It is the settled position of law that a tax payer cannot be a victim of the change in law.
The reliance placed on the decision of the Hon’ble High Court of Madras in the case of M/S. 3E INFOTECH VERSUS CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, COMMISSIONER OF CENTRAL EXCISE (APPEALS-I) [2018 (7) TMI 276 - MADRAS HIGH COURT] is very apt, wherein it has been categorically held that the Service Tax paid under mistake of law has to be refunded irrespective of the period covered as refusal thereof would be contrary to the mandate of Article 265 of the Constitution of India.
The denial of refund is contrary to the settled position of law - the rejection of refund are set aside - Appeal allowed - decided in favor of appellant.
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2021 (6) TMI 859
Re-assessment/amendment of its Bills-of-Entry - Section 149 of the Customs Act, 1962 - correct classification of Laptops - HELD THAT:- Any amendment/re-assessment has to be in terms of Section 149 of the Customs Act, 1962 and by the Proper Officer. Hence, it serves no purpose if the case is remanded to the Commissioner (Appeals) since it is the Proper Officer who could call for any documents and then exercise his discretion to order amendment or reject, subject to the provisions of Section 149 ibid.
Therefore, the matter is remanded to the file of the Adjudicating Authority/Proper Officer to verify the claim of the appellant strictly in terms of Section 149 ibid. and thereafter, pass an appropriate speaking order after giving reasonable opportunities to the appellant. All the contentions are left open.
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2021 (6) TMI 858
Absolute Confiscation - smuggling - Gold Jewellery - ‘eligible passenger’ in terms of N/N. 12/2012 - personal baggage - prohibited goods or not - onus of proof - penalty u/s 112 and 114 AA of the Customs Act - HELD THAT:- The appellant was a passenger in transit from Bangkok to Kathmandu. The appellant was admittedly found in the transit lounge at IGI Airport, T-3, Delhi, meant for international passengers, where they can wait for the purpose of changing flight without entering into India, as such they are not required to go though any formality of immigration as well as under the provision of Customs Law. It is also found that it is admitted fact that the appellant was waiting for his next flight in the transit lounge of Terminal No. 3 of IGI Airport, Delhi, and he was not intermixing with any other person or trying to deliver any goods or any packet or jewellery for the purpose of smuggling. It is further found that the appellant have not violated any of the provisions under the Customs Act, 1962 read with the Foreign Trade Policy.
The whole case of Revenue is misconceived and has no legs to stand. Also, the source of gold jewellery he was wearing is cogently explained, which has not been found to be untrue.
Penalty set aside - appeal allowed - decided in favor of appellant.
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2021 (6) TMI 857
Refund of excess cost recovery charges - adjustment of cost recovery charges against amount dues - speaking order sought, was declined on the ground that adjustment of cost recovery charges is administrative in nature - HELD THAT:- The order of Hon’ble High Court dated 06.10.2017 has to be read with the earlier Final Order of the Hon’ble High Court dated 04.05.2017. The Hon’ble High Court granted liberty to the appellant to apply for review or restoration of the writ application in case of difficulty, while disposing of the writ application on 04.05.2017. Thereafter, when the appellant approached the Hon’ble High Court in review on Miscellaneous application for revival of the application, the Hon’ble High Court directed the appellant to pursue the appellate remedy in view of the subsequent Order-in-original dated 19.06.2017, (allowing truncated amount of refund). Thus, in the facts and circumstances of the present case, limitation has to be computed on and from 06.10.2017 (plus the time taken in obtaining certified copy of the miscellaneous order) - thus, the appeal filed before the Commissioner (Appeals) was within time.
This appeal is allowed by way of remand to the Commissioner (Appeals) with the direction to hear the appeal on merits.
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2021 (6) TMI 856
Clandestine Removal - M.S. Ingot - TMT bars - shortage in the stock of ingots due to high burning loss - uncorroborative seizure of the finished goods - defective stock verification - corroborative evidence or not - HELD THAT:- The burning loss in this type of industry varies from time to time depending upon the quality of inputs, the condition of furnace, climatic condition, etc. Further, the Director of the appellant company at the time of recording of his statement under Section 14 gave a plausible explanation, that shortage is attributable to high burning loss depending upon the various factors and failure by them to record the actual burning loss, as the production is recorded on the estimate basis, whereas the sale of finished goods is recorded on actual weight basis.
The appellant also manufactures M.S. Billets, for which M.S. Ingots is the raw materials, in such process also there is burning loss. Thus, the explanation given by the appellants for the apparent shortage is held to be plausible, as the same has been rejected summarily by the Department without reference to the books of accounts and other records maintained by the appellant - further, there is no other corroborative evidence brought on record with respect to the allegation of clandestine removal, which is a serious charge and has to be proved beyond doubt.
Appeal allowed - decided in favor of appellant.
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2021 (6) TMI 855
Tax payable u/s 115-O - dividend distribution tax rate being restricted by the treaty provision dealing with taxation of dividends in the hands of the shareholders (i.e. Article 11 of the Indo French tax treaty, as in this case) - tax at the rate prescribed in the DTAA between India and France in respect of dividend paid by the assessee to the non-resident shareholders i.e. Total Marketing Services and Total Holdings Asie, a tax resident of France - HELD THAT:- A tax treaty protects taxation of income in the hands of residents of the treaty partner jurisdictions in the other treaty partner jurisdiction. In order to seek treaty protection of an income in India under the Indo French tax treaty, the person seeking such treaty protection has to be a resident of France. The expression ‘resident’ is defined, under article 4(1) of the Indo French tax treaty, as “any person who, under the laws of that Contracting State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature”.
Obviously, the company incorporated in India, i.e. the assessee before us, cannot seek treaty protection in India- except for the purpose of, in deserving cases, where the cases are covered by the nationality non-discrimination under article 26(1), deductibility non-discrimination under article 26(4), and ownership nondiscrimination under article 24(5) as, for example, article 26(5) specifically extends the scope of tax treaty protection to the “enterprises of one of the Contracting States, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State”. The same is the position with respect of the other non-discrimination provisions. No such extension of the scope of treaty protection is envisaged, or demonstrated, in the present case. When the taxes are paid by the resident of India, in respect of its own liability in India, such taxation in India, in our considered view, cannot be protected or influenced by a tax treaty provision, unless a specific provision exists in the related tax treaty enabling extension of the treaty protection.
Taxation is a sovereign power of the State- collection and imposition of taxes are sovereign functions. Double Taxation Avoidance Agreement is in the nature of self-imposed limitations of a State’s inherent right to tax, and these DTAAs divide tax sources, taxable objects amongst themselves. Inherent in the self-imposed restrictions imposed by the DTAA is the fact that outside of the limitations imposed by the DTAA, the State is free to levy taxes as per its own policy choices. The dividend distribution tax, not being a tax paid by or on behalf of a resident of treaty partner jurisdiction, cannot thus be curtailed by a tax treaty provision.
For all these reasons independently, as also taken together, we are of the considered view that it is a fit case for the constitution of a special bench, consisting of three or more Members, so that all the aspects relating to this issue can be considered in a holistic and comprehensive manner. In any case, it is a macro issue that touches upon the tax liability of virtually every company which has residents of a tax treaty partner jurisdiction as shareholders, and has substantial revenue implications. The question which may be referred for the consideration of special bench consisting of three or more Members, subject to the approval of, and modifications by, Hon’ble President, is as follows:-
Whether the protection granted by the tax treaties, under section 90 of the Income Tax Act, 1961, in respect of taxation of dividend in the source jurisdiction, can be extended, even in the absence of a specific treaty provision to that effect, to the dividend distribution tax under section 115 ‘O’ in the hands of a domestic company?
The registry is directed to place the matter before the Hon’ble President for his kind consideration and for the appropriate orders.
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2021 (6) TMI 854
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice - time limitation - HELD THAT:- Notice with respect to the application was issued to the Corporate Debtor vide order dated 03.03.2020 of the Adjudicating Authority. Further, it has been observed that neither a reply to the Demand Notice nor to Section 9 application was filed by the Corporate Debtor. The Corporate Debtor has never appeared before the Adjudicating Authority hence vide order dated 12.01.2021 the Corporate Debtor was proceeded ex-parte.
The date of default is 21.01.2019 which is the date of the last invoice issued which was unpaid, and the present application is filed on 24.02.2020. Hence the application is not time barred and filed within the period of limitation - The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application.
The Application filed by the Operational Creditor is complete in all respect. This authority is satisfied that an amount of ₹ 31,32,820/- towards unpaid invoices for the goods supplied by the Operational Creditor, is due and payable by the Corporate Debtor to the Operational Creditor, which it failed to pay. Therefore, the Application is admitted and the commencement of the CIRP is ordered - Application allowed.
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2021 (6) TMI 853
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - issuance of demand notice - HELD THAT:- The demand notice was sent to the registered address of the corporate debtor as per the master data at Page No. 46 of the petition in which registered office is shown as Second Floor, Block No. 40, B-3, Sector-6, Parwanoo, Solan, HP-173220. Copy of postal receipt and tracking report showing duly service of notice are part of Annexure -VI(Colly) at Page Nos. 34 to 36.
Whether the operational debt was disputed by the corporate debtor? - HELD THAT:- The respondent-corporate debtor has filed reply and admitted the occurrence of default towards operational creditor. Thus, there is no dispute as to the liability between the corporate debtor and the operational creditor.
Time Limitation - HELD THAT:- As a statutory requirement under Section 9(3)(b) of the Code, an affidavit dated 18.11.2019 has been placed by the operational creditor stating that despite the service of notice dated 02.11.2019, corporate debtor did not raise any dispute qua the outstanding payment. The bank statement for the period from 01.04.2018 to 31.10.2019 has been annexed as Annexure-V of the petition. It has been shown that the corporate debtor has failed to make payment of the aforesaid amount due as mentioned in the statutory notice till date. It is also observed that the conditions under Section 9 of the Code stand satisfied. Accordingly, the petitioner proved the debt and the default, which is more than ₹ 1 lakh by the respondent-corporate debtor.
The present petition being complete and having established the default in payment of the Operational Debt for the default amount being above ₹ 1,00,000/-, the petition is admitted in terms of Section 9 of the IBC - Petition admitted - moratorium declared.
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2021 (6) TMI 852
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- The registered office of the Respondent Corporate Debtor is situated in Jaipur and therefore this Adjudicating Authority has jurisdiction to entertain and try this Application - The first default had occurred on 23.12.2017 which continued till 18.11.2019, hence the debt is not time barred and the Application is filed within the period of limitation.
The application in Form 5 is complete; no payment of the unpaid operational debt of ₹ 2,32,02,842/-has been made and demand notice in Form No. 3 was duly served on the Corporate Debtor through registered post and the amount due has been acknowledged by the Respondent. The Applicant has filed an affidavit under Section 9(3)(b) of the Code to the effect that there is no notice given by the Respondent relating to dispute of the unpaid operational debt. In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, the Application is admitted and the initiation of CIRP of M/s. ADIG Jemtex Pvt. Ltd. is directed.
Application admitted - moratorium declared.
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2021 (6) TMI 851
Liquidation of Company - appointment of Resolution professional as Liquidator of the Corporate Debtor - Section 33(2) of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Interim Resolution Professional has produced the 6th and 7th CoC resolutions. In the 6th meeting of the COC it was resolved with 100% voting right to liquidate the Corporate Debtor M/s. Moonriver Resorts Private Limited and in the 7th CoC it was resolved to appoint the Interim Resolution Professional Shri K.T. Mathew as the Liquidator.
From Section 33(2) of the Insolvency and Bankruptcy Code, it is clear that when a Resolution Professional at any time during the CIRP but before confirmation of Resolution Plan approaches the Adjudicating Authority with the decision of the COC approved by not less than sixty six percent of the voting share, the Adjudicating Authority shall pass a liquidation order. In this case the CoC with 100% voting right approved the resolution for liquidation of the Corporate Debtor. Hence this is a fit case to order liquidation under Section 33(2) of the IBC, 2016.
The Corporate Debtor M/s. Moonriver Resorts Private Limited is hereby put under liquidation with immediate effect under Section 33(2) of IBC, 2016 - application allowed.
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2021 (6) TMI 850
CENVAT Credit - duty paying documents - denial on the ground that the document on the strength of which credit has been availed is not proper - HELD THAT:- There is no finding in the adjudication order and the appeal order that the input service has neither been received by the appellant nor tax has not been paid on said service - The certificate dated 09.02.2018 issued by the Federal Bank, which duly mentions the service tax amount recovered from the appellant and the service tax registration number of the bank branch.
Since there is no dispute with regard to the nature of input services, the appellant should not be deprived of the Cenvat Credit which is available under the CENVAT Credit Rules framed as a beneficial scheme of the Central Excise statute - justice would be served if the appellant is accorded an opportunity to produce the said certificate before the adjudicating authority, who would examine the same and satisfy itself in so far credit amount is involved in the present dispute.
Appeal allowed by way of remand.
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2021 (6) TMI 849
Unexplained cash deposited in the bank account - source of receipt from sale of agriculture produce or not - sale of agriculture produce to non-existing firm - HELD THAT:- Assessee has failed to prove the source of the cash deposits and explanation offered towards cash deposit does not pass the test of human probabilities and surrounding circumstances.
On weighing the rival contentions, we find considerable merits in the plea raised on behalf of the assessee. It is noticed that assessee is having sufficient land alongwith other family members to support the case of cultivation of potato sold. CIT(A) has accepted the fact of production of potato and has taken the receipt of cash from one of the parties (Noor Traders) as explained. The CIT(A) has rejected the source of cash from other party (Dariyalal Aloo Bhandar) primarily on the ground of lack of confirmation.
The assessee has supported the closure of the business of Dariyalal Aloo Bhandar by way of affidavit from the surrounding farmers who were having the personal knowledge of the fact of the closure of the shop since 2016. The agricultural land of 46 Bigha appears sufficient to support the production of potato as claimed - the benefit of doubt, in our mind, must go to the assessee who happens to be a farmer and from whom the due diligence of highest level for storage of evidence is not necessarily expected - existing in the case to enable us to agree with the contention raised on behalf of the assessee. We thus set aside the order of the CIT(A) and direct the AO to delete the addition in question - Decided in favour of assessee.
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2021 (6) TMI 848
Bogus purchases - HELD THAT:- We find that the assessee, vide letter dated 26/09/2018 has filed confirmation of accounts from 4 parties under consideration. The ledger extracts as placed on record would reveal that the assessee has made the payment to these parties though banking channels. Going by the factual matrix, it is evident that assessee's sales turnover was not in doubt. There could be no sale without actual purchase of material keeping in view the assessee's nature of business.
The facts of the case made it a fit case to estimate the profit element embedded in these transactions. Therefore, as pleaded by Ld. AR and to put an end to litigation, we estimate the additions against these purchases @8% which comes to ₹ 1,83,266/-. The balance additions stand deleted. AO is directed to recomputed assessee's income in terms of our above order.
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2021 (6) TMI 847
Reopening of assessment u/s 148 - commission to doctors in cash for the use of stents supplied to various hospitals - as argued cash was actually given to some other person who may be the partner of the firm M/s. Cardio Technovention and for siphoning of profits of the form, the hospital; National Heart Institute as discount on purchases; the purchase manager at the hospital for placing the order, the accounts personnel at the hospital for releasing payments, in a trustee of the hospital, a new employee at the hospital, the patient who was operated upon, the vendor from home stands were purchased, any other facilitator or mediator so on and so forth - HELD THAT:- As submitted by the Revenue, in the diaries the relevant notings read in a cryptic form like "NHI/PS/CO/548 15000" and the Revenue read it as "Hospital name/Doctors initial/product name/date/bill number commission amount paid". While reading so, Revenue stopped at the second position, namely, "Doctors initial" to fasten the liability. Even if we go by the decoding of the code as done by the Revenue, as argued by the Ld. AR and rightly also, there is no reason as to why we should stop at our select the 2nd position to fasten the liability or to conclude that the doctor received the amount. It could equally be possible that the hospital might have received such amount in respect of a particular patient attended by such Doctor to use such instrument. This possibility cannot be ruled out. When there are more possibilities than one, and many of such possibilities exclude the involvement of a particular person suggesting the involvement of somebody else also, in our considered opinion it would be unreasonable to conclude that such person who also been exonerated by one of the possibilities, to have received the commission. As rightly argued on behalf of the assessee, this code could also be indicative of a transaction and for the purpose of identification of transaction, the name of the hospital/name of the doctor/name of the instrument so on and so forth could have been noted in respect of the commission paid. Without any supporting material supplying a direction to this entry towards the doctor and doctor alone, is unreasonable and such an entry does not take us anywhere more particularly to point out the doctor to have received the commission.
As seen from the record and the orders in case of M/s. Cardio Technovention that the plea of the Revenue was that the commission that was paid to the agent through banking channels was received back by M/s. Cardio Technovention in cash to pay the same to the doctors. In the order for the assessment year 2014-15 in the case of M/s. Cardio Technovention, in appeal, Ld. CIT(A) on a consideration of the entire material reached the conclusion that in respect of the commission paid to the agent, the same was confirmed by the agents, by cogent record and supported by the denial of the hospitals and the facts and circumstances did not prove that there was any withdrawal in cash by the commission agent from their bank accounts nor any evidence to show that it was paid to the doctors. It was further observed that such commission paid to the agents was accepted in the earlier assessment years by the Department. It was the specific finding of the Ld. CIT(A) in such order that the rough noting in the notebook referred to by the Revenue does not confirm the fact that commission was not paid to the agents or that it was received back from the agents.
Amply clear that the plea of the Revenue that though the commission was initially paid to the agents through banking channels, it was received back in cash to be paid to the doctors, falls to ground. There is no material before us to disturb this finding returned by the learned Commissioner of Income Tax (Appeals) in the case of M/s. Cardio Technovention. Apart from that there is no denial of the fact that in the subsequent assessment year of a 2011-12 the additionunder section 68 of the Act was deleted by the learned Commissioner of Income Tax (Appeals) by invalidating the reopening whereas for the assessment year 2012-13, the proposed addition on account of the alleged cash commission was dropped and the learned Assessing Officer accepted the return filed by the assessee.
All these things cumulatively go to show that M/s. Cardio Technovention was given a clean chit from the accusation of receiving the commission paid to agent through banking channels, in cash and paid to the doctors, which the doctors could not show as the receipt due to the prohibition of the regulations of the Medical Council of India. It further establishes that, when once the very allegation of cash commission is ruled out, no further inference could be drawn against the doctors to say that they have received such non-est commission. No merit in the argument of the Revenue and accordingly, hold that the addition cannot be sustained. Consequently, we direct the learned Assessing Officer to delete the addition. Appeal of the assessee is allowed.
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2021 (6) TMI 846
Ex parte order confirming the order passed by the AO determining the total income as against the returned loss - HELD THAT:- It is an admitted fact that despite number of opportunities granted by the CIT(A), the assessee did not appear before him for which the CIT(A) was constrained to pass the ex parte order. As submission of the ld. Counsel for the assessee that given an opportunity the assessee is in a position to explain his case before the ld. CIT(A).
We deem it proper to restore the issue back to the file of the CIT(A) with a direction to grant one final opportunity to the assessee to substantiate its case and decide the issue as per fact and law. The assessee is also hereby directed to appear before the CIT(A) and explain its case without seeking any adjournment under any pretext failing which, the ld. CIT(A) is at liberty to pass appropriate order as per law. Thus we hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.
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2021 (6) TMI 845
TDS u/s 195 - assessee received as consideration towards software licensed to Indian distributors/customer - Royalty u/s. 9(1)(vi) of the Act and Art 12 of India-Singapore DTAA - AO also proposed to tax the consideration received from Indian distributors/customers for sale of hardware as royalty on the basis that hardware and software are inseparable and that the software cannot function in the obscene of hardware - HELD THAT:- Respectfully following the above view in case of Engineering Analysis Centre of Excellence Pvt. Ltd. [2021 (3) TMI 138 - SUPREME COURT] we hold that purchase of software in the present facts does not amount to give rise to any taxable income in India as a result of which provisions of sec. 195 of the Act are not attracted. The assessee does not have any obligation to deduct tax at source. Therefore, provisions of sec. 9(1)(vi) along with Explanation 2 is not applicable to present assessee's.
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2021 (6) TMI 844
Seeking dissolution of the Corporate Debtor - Sections 54 and 60(5) of the Insolvency & Bankruptcy Code, 2016 (the Code) read with Rule 11 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- It appears that the affairs of the Corporate Debtor have been wound up and its assets have been completely liquidated. We are satisfied from the documents on record that the liquidation is not with intent to defraud any person. The bank account for the purpose of liquidation has been closed. The above facts and circumstances indicate that due process of liquidation, as per extant provisions and in the manner indicated in the Code and Regulations, have been followed by the Liquidator to liquidate the assets of Company and the realized amounts have also been distributed among the respective claimants. The liquidation process has been duly completed as per the provisions of the Code. Thus, it would be just and equitable for this Authority to dissolve the Corporate Debtor. No party is going to be adversely affected thereby.
Application allowed.
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9911796707
