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Showing 321 to 340 of 1434 Records
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2021 (8) TMI 1114
Levy of service tax - services provided to Mandi Samiti for construction services in the market yard - commercial in nature - demand of penalty - HELD THAT:- Undisputedly the appellant have rendered construction service to the Mandi Samiti, which is a statuary authority. The services provided to Mandi Samiti for construction services in the market yard are not commercial in nature as held by a coordinated Bench of this Tribunal in M/S. KRISHI UPAJ MANDI SAMITI AND OTHERS VERSUS CCE & ST, JAIPUR I & JAIPUR II [2017 (5) TMI 1465 - CESTAT NEW DELHI] wherein it is held herein with the introduction of Negative List Regime of Taxation w.e.f. from 1st July, 2012, the Mandi Parishad is excluded from tax liability.
This Tribunal held that Mandi Samiti or Board are not liable to Service Tax on renting of immovable property used for storage of agricultural produce in the market area.
Time Limitation - penalty - HELD THAT:- The Impugned Order is not sustainable and was set-aside. It was further held that the post-harvest strategy of storage marketing etc. being done by the Mandi Samiti is exempted under serial no. 14 of Notification No. 12/2012-ST.
Appeal allowed.
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2021 (8) TMI 1113
Refund claim - Amount deposited during investigation - no SCN issued to the appellant either for appropriation or for rejection of the amount - HELD THAT:- It is admitted fact that no show cause notice was issued to the appellant for appropriation of the amount nor for rejection of the refund claim. Therefore, the order of rejection of refund claim is bad in law and against the provisions of Finance Act as well as Central Excise Act,1944 - the amount paid during the course of investigation is only an amount of deposit, the same cannot be formed part of service tax. Therefore, rejection of refund claim by the respondent is without authority of law and the same is refundable to the appellant.
The appellant is entitled for refund claim - Appeal allowed - decided in favor of appellant.
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2021 (8) TMI 1112
CENVAT Credit - input services - commission paid to the various financers for selling their vehicles - Rule 2 (l) of the Cenvat Credit Rules, 2004 - HELD THAT:- The appellant is paying commission to the financers for selling their vehicles to various prospective buyers on the vehicles manufactured by the appellant. If these financers do not finance the vehicles manufactured by the appellant, the vehicles of the appellant are not able to be sold in the open market freely. Therefore, these financers are indirectly providing the services of sales promotion to the appellant. Sales promotion is inclusive part of the definition and the same can be availed beyond the place of removal as there is no bar on the same in the definition itself.
Thus, on commission paid to various financers for arranging the prospective buyers to the appellant for sale of vehicles, the appellant is entitled to take cenvat credit as ‘sale promotion’ is an “input service” - appeal allowed - decided in favor of appellant.
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2021 (8) TMI 1111
Maintainability of appeal - time limitation - statutory time limit prescribed for filing the appeal was expired - HELD THAT:- The appeal was not preferred by the appellant before the office of Learned Commissioner (Appeals) within the stipulated time frame and also within the condonable period prescribed in the Statute - Since the Appellate Authority is a creature under the statute, the statutory mandates are strictly required to be complied by him. Since the appeal was dismissed by him on the ground of limitation, there are no infirmity in the said order passed by the Commissioner (Appeals).
Appeal dismissed.
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2021 (8) TMI 1110
Sanction of scheme of amalgamation - Seeking holding, convening and dispensation with various meetings - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- Various directions regarding holding, convening and dispensation with various meetings issued - directions regarding issuance of various notices issued.
The scheme is approved - application allowed.
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2021 (8) TMI 1109
Liquidation of Corporate Debtor - Section 33 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Despite all possible steps as required under the Code taken during the CIRP, the CoC did not receive any viable resolution plan/proposal for revival of the Company. The CoC in its wisdom has resolved in favour of the liquidation of the Company. This Authority has no reason before it to take a contrary view in terms of Section 33(1) (a) of the Code. Therefore, there are no option than to pass an order for liquidation of the Company in the manner laid down in Chapter-Ill of the Code.
Application allowed.
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2021 (8) TMI 1108
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Financial Debt - existence of debt and dispute or not - HELD THAT:- The Corporate Debtor has not disputed the fact that the Financial Creditor has invested in the Corporate Debtor in the form of Non-convertible Debentures (NCDs) in multiple tranches to the tune of ₹ 31,75,00,000/-. Further, the amount raised pursuant to the debentures would qualify to be a "financial debt' as per Section 5(8)(c) of IBC, 2016. It is seen from the records, that the Respondent/Corporate Debtor has preferred only to file the written submission and not reply to the Application filed by the Financial Creditors.
From the written submission submitted by the Corporate Debtor it is seen that they not disputed the debt nor default. In the circumstances there is a clear evidence in the case of the existence of 'financial debt' and the 'default' of such financial debt which is payable by the Corporate Debtor to the Financial Creditor. Under the said circumstances, this Tribunal is left with no other option but to proceed with the present case and initiate the Corporate Insolvency Resolution Process in relation to the Corporate Debtor.
This Application filed by the Financial Creditor is required to be admitted under Section 7(5) of the IBC, 2016 - The application is admitted - moratorium declared.
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2021 (8) TMI 1107
Sanction of scheme of merger - section 232 read with section 230 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 - HELD THAT:- Various directions regarding holding, convening and dispensation of various meetings issued - directions regarding issuance of notices also issued.
The scheme is approved - application allowed.
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2021 (8) TMI 1106
Seeking to restore the name of the Company in the Register maintained by the Respondent/Roc - Section 252 of the Companies Act, 2013 - HELD THAT:- Taking into consideration the provisions of Section 252(1) & (3) of the Companies Act, 2013 which vests this Tribunal with a discretion where the Company whose name has been struck off and such Company is able to demonstrate that there is a running business as on the date when the name was struck off and also keeping in consideration that it is just to do so can restore the name of the Company in the register and in the interest of all the stakeholders including members of the Company, its employees as well as the revenue and the Applicant itself who seeks restoration of the name of the Company in the register being maintained by Roc.
The name of company is restored - application allowed.
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2021 (8) TMI 1105
Scheme of Amalgamation - seeking directions regarding holding convening and dispensation of various meetings - first stage of the proceedings under Section 230(1) read with Section 232(1) of the Companies Act, 2013 - HELD THAT:- Various directions with regard to holding, convening and dispensation with various meetings issued - directions with regard to issuance of notices also issued.
The scheme is approved - application allowed.
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2021 (8) TMI 1104
Refund of excess amount of service tax paid - rejection on the ground of time limitation - relevant date - refund was proposed to be rejected as it has not been filed within one year - HELD THAT:- There is no denial of the fact that appellant had made payment for his service tax liability for the quarter ending April, 2017 to June, 2017 in April itself.Certain amount i.e. ₹ 2,85.501/- was paid to be adjusted towards his total liability to be incurred during this quarter. There is also no denial that the entire liability of the appellant for this quarter was for ₹ 1,41,714/- which stand adjusted by the Department as the Service Tax being paid by the appellant for the period of April, 2017 to June, 2017 but out of the payment made from 11.4.2017 to 24.4.2017. Admittedly, ₹ 1,51,404/- remained the balance to be adjusted for the service tax liability of appellant as may occur after quarter ending on 30.06.2017. These admitted facts are sufficient to hold that the amount in question was not at all tax liability of the appellant.
Since post July 01, 2017, the applicability of this Rule was no more available to the appellant, the excess amount already got deposited by the appellant at the time when Service Tax liability for the said quarter had not even accrued towards the appellant, but remain unutilised for any tax liability till 30.06.2017, the amount cannot qualify for being called tax. The said balance was appellant’s own money and Department cannot be allowed to get unjustly enriched out of said money - the learned Commissioner (Appeals) has erred while invoking bar of limitation of one year as mentioned under section 11 B for the amount which was not duty or tax.
Learned Commissioner (Appeals) is also held to have erred while invoking the clause (f) of the definition of ‘relevant date’ as given under section 11B. Since the amount in question was not duty, date of payment of duty clause cannot apply and date of impugned deposit cannot be taken as relevant date - appeal allowed - decided in favor of appellant.
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2021 (8) TMI 1103
Interest sought to be recovered as disputed tax from the assessee in Form-3 under the DTVSV Scheme - interest sought to be recovered as disputed tax be understood as the one paid pursuant to Section 244A and not Section 234D - HELD THAT:- We quash and set aside Form-3 dated 31st March, 2021 issued by Respondent No.1 for Assessment Year 2010- 11 as being without jurisdiction, the Respondent No.1 Designated Authority having no power or authority to add/include this amount to the disputed tax under the provisions of the DTVSV Act. We direct Respondent No.1 to issue fresh Form-3 to Petitioner determining the amount of disputed tax in accordance with the above discussion within three weeks from the date of pronouncement of this order and thereafter Petitioner to make payment of the disputed tax so determined within a period of two weeks of the issuance of revised Form -3.
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2021 (8) TMI 1102
Assessment u/s 144B - violation of principle of natural justice - respondent concerned not giving adequate and effective opportunity of hearing to the petitioner - whether assessing officer has committed jurisdictional error and that the alternative remedy is no bar in entertaining this Writ Petition since violation of natural justice is a jurisdictional error? - HELD THAT:- It is established from record that series of adjournments were granted on the prayer of the petitioner from time to time and the petitioner did not comply with many notices and sometime in response to some of the notices on some occasion replied to the show-cause notice in detail and furnished material evidence and documents in support of its case before the Assessing Officer in course of impugned assessment proceeding. In my considered opinion petitioner could not make out a case of any patent jurisdictional error or that the assessing officer acted contrary to any specific provision of law in course of the impugned assessment proceeding.
In view of the discussion made above and after taking into the consideration records available/annexed to the Writ Petition, in my considered opinion, sufficient opportunities of hearing were given to the petitioner and there was no violation of principles of natural justice in course of impugned assessment proceeding and in passing the assessment order and in the instant case it cannot be said that the assessing officer/respondent concerned who passed the assessment order was having inherent lack of jurisdiction or his action in course of impugned assessment proceeding was contrary to any specific provision of law and the impugned assessment order is not liable to be interfered with in constitutional writ jurisdiction of this Court under Article 226 of the Constitution.
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2021 (8) TMI 1101
Disallowance u/s 40A (2)(b) - higher salary to the Directors or the Managers or other Officers or employees - HELD THAT:- The assessee company has paid the Directors remuneration during the previous year as well as the subsequent years, the Assessing Officer has observed that they are the Managers to Directors and control the company.
AO has not disputed that the Board meeting has approved the increase of remuneration payable to the Directors in accordance with the provisions of the Companies Act, 1956 during the previous year 2011-12 & 2012-13. When a Company pays higher salary to the Directors of the Managers or other Officers or employees it is for the commercial expediency of internal affairs of the company, it is not for the Revenue Authorities to decide that particular salary should not have been paid to the Directors. It is the business decision and, therefore, the disallowance u/s 40A(2)(d) is wrongly invoked - Decided in favour of assessee.
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2021 (8) TMI 1100
Disallowance of claim of business loss - loss if not allowed in the year under consideration then it be allowed in A.Y. 2015-16 - HELD THAT:- It is an undisputed fact that the aforesaid amount which has been disallowed by the AO represents the compensation paid by the assessee to Ms Susan Beer on account of the decision of the Hon’ble Delhi High Court. It is also an undisputed fact that the payment of the aforesaid amount arose on account of the decision of Hon’ble Delhi High Court which was pronounced on 30.05.2014. It is also an undisputed fact that out of the total compensation amount of ₹ 5,28,80,795/- was deposited with the Registrar of High Court during the year under consideration and the balance amount of ₹ 2,40,56,079/- was deposited with the Registrar on 26.08.2014.
The incurring of expenditure is not in doubt and genuineness of the claim is not in dispute - the amount that was paid during the year under consideration i.e. ₹ 5.28 crore (rounded off) be allowed as an expense in the year under consideration and the balance amount of ₹ 2.40 crore (rounded off) which was deposited with the Registrar High Court be allowed as deduction in A.Y. 2015-16. Thus the claim of the assessee is allowed.
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2021 (8) TMI 1099
Addition u/s 68 - difference in total revenue shown as per the books of account of the assessee and income shown in Form No. 26AS for that year - Mercantile system of accounting - HELD THAT:- CIT-A correctly deleted the addition as the amounts of service tax shown in the invoice are not reflected to the extent of service tax included in the gross value of payment. With respect to certain invoices, which were pertaining to assessment year 2012-13, included by the assessee in the income of those years whereas same were shown as payment made by the customer in the Form No. 26AS of this year.
Interchangeability of receipts from Reliance Communication Ltd and Reliance Communication Infrastructure Ltd pertaining to the same group. The ld CIT (A) examined the reconciliation of both the companies individually with Form No. 26AS and no difference were found.The failure of the ld AO to consider the income shown under the other segment of the assessee already shown as income in the profit and loss account and merely comparing with one of the segment of the income.
The above reasons are verified by the ld CIT (A) to the extent of each rupee and have given detailed analysis with respect to each of the parties. The ld DR could not show us any infirmity in the order of the ld CIT(A) in deleting the above additions - Therefore, we confirm the order of the LD CIT (A) and dismissed the ground of appeal of the LD AO.
There can be overflow of income of one preceding previous year in the current year in form 26AS. However, there cannot be overflow of income pertaining to the preceding previous year in the current previous year in the books of accounts of the assessee because assessee is maintaining books of accounts on accrual system of accounting. AO should have considered the income shown by the assessee in the earlier year in its profit and loss account, when assessee has filed detailed reconciliation before the ld AO. The ld AO could also have verified the above with the books of account produced before him - difference between the revenue shown in the Form No. 26AS and the profit and loss account of the assessee , may trigger a doubt in the mind of the learned assessing officer, but that doubt needs to be further clarified by carrying out further examination of the details and reconciliation. Merely, issuing notices u/s 133(6) and not receiving the reply cannot result an addition into hands of the assessee. According to us, AO should have carried out further examination before making such a huge addition - Addition made by the ld AO has been correctly deleted by the CIT (A).
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2021 (8) TMI 1098
Set off of Business Loss and unabsorbed depreciation of scooter business against property dealing income - whether the income declared in the course of survey and disclosed in the return of income as business income, could be eligible for set off of loss or not? - HELD THAT:- More particular circular issued by CBDT, Circular No.1/2019 dated 18.06.2019, the claim of the assessee for set off of loss would be allowable. As it is clarified by the CBDT that section 115BBE(2) came into statute book w.e.f. 01.04.2017, we hold accordingly. AO is hereby directed to allow the claim of set off of loss against the business income disclosed during the course of survey proceedings. Thus, Ground Nos.1 & 2 raised by the assessee are allowed.
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2021 (8) TMI 1097
Disallowance u/s 37 (1) - AO has disallowed 10% of the expenses on ad-hoc basis claimed under the head ‘telephone expenses’, ‘travelling expenses’ and ‘staff welfare expenses’ on the ground that element of personal use cannot be overruled as no logbook was maintained for Vehicles, details of phone calls was not maintained in respect of telephones and proper vouchers of tour and travel expenses were not maintained - HELD THAT:- In our opinion, the Assessing Officer is not justified in making ad-hoc disallowance out of expenses without pointing out specific error or absence of particular voucher of expenses - Tribunal in identical circumstances has upheld the deletion of such disallowance. Respectfully, following the finding of the Tribunal in the case of the assessee in immediately preceding assessment year, we uphold the finding of the Learned CIT(A). The ground No. 1 of the appeal of the Revenue is accordingly dismissed.
Disallowance u/s 14A - CIT(A) deleted the disallowance in view finding of his predecessor and no exempt income earned by the assessee - HELD THAT:- We find that the Ld. CIT(A) has deleted the disallowance relying on the decision of the Hon’ble Delhi High Court in the case of Cheminvest Ltd [2015 (9) TMI 238 - DELHI HIGH COURT]. We do not find any error or illegality in the finding of the ld. CIT(A). Accordingly, the grounds No. 2 & 3 of the appeal of the Revenue are dismissed.
Disallowance of interest expenditure related to interest free advances u/s 36(1)(iii) - AO observed that building was put to use in the year under consideration and interest on money borrowed corresponding to the period for which the building was not put to use was computed - HELD THAT:- As assessee has already transferred the interest to preoperative expenses which has been allocated to fixed assets. The facts in the year under consideration are identical to assessment year 2010-11 [2019 (1) TMI 1062 - ITAT DELHI] thus, respectfully following the finding of the Tribunal (supra), we uphold the deletion of the addition by the Ld. CIT(A). The ground No. 4 to 6 of the appeal are accordingly dismissed.
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2021 (8) TMI 1096
Unexplained cash credit u/s 68 - cash received from partners - difference pointed out by the AO as capital introduced by both the partners of the assessee firm different from the capital contribution stated to be claimed by the assessee firm - HELD THAT:- The main source of cash in hand was explained by the assessee as capital contribution made by its partners and since the said source was clearly established on the basis of cash book showing introduction of capital by the partners, the difference as pointed out by the AO in the total capital contribution as claimed by the assessee to the extent of ₹ 31,00,000/- was not relevant to the issue and such shortfall cannot be treated as income u/s 68 in the hands of the assessee firm by treating the same as unexplained cash credit.
The issue was relating to the source of cash in hand as reflected in the balance sheet of the assessee as on 31.03.2015 and when the same was satisfactory explained by the assessee inter alia in the form of capital contribution by the partners of the assessee firm, it is of the view that the addition as made by the AO and confirmed by the Ld. CIT(A) u/s 68 is not sustainable. We delete the same and allow this appeal of the assessee.
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2021 (8) TMI 1095
TP Adjustment - comparable selection - HELD THAT:- E-Zest Solutions Limited - As in the case of GXS India Technology Centre (P.) Ltd. [2015 (8) TMI 227 - ITAT BANGALORE], since assessee in our case is into software development services, same cannot be functional compared with E-Zest Solutions Limited, which is into KPO services. Therefore, we direct the AO / TPO to exclude E-Zest Solutions Limited from the final list of comparables. It is ordered accordingly.
Softsol India Limited - On identical facts, the Tribunal in the case of GXS India Technology Centre (P.) Ltd. (supra) had held that Softsol India Limited is to be excluded from the comparables list of companies on account of that it was having related party transactions in excess of 15%. In view of the above order of the Tribunal and also for the fact that assessment year being the same (A.Y.2008-2009), we direct the AO / TPO to exclude Softsol India Limited from the final list of comparable companies.
Benefit of deduction u/s 10A in respect of additions agreed for the MAP proceedings - HELD THAT:- On identical facts, the Tribunal in assessee’s own case [2020 (6) TMI 699 - ITAT BANGALORE] had held that additions agreed under MAP proceedings was entitled to the benefit of deduction u/s 10A.
Deduction u/s 10A of the I.T.Act by excluding the expenditure deducted from the export turnover also to be reduced from the total turnover - HELD THAT:- We are of the view that the above issue raised by the Revenue is no more res integra. As in the case of CIT v. HCL Technologies Ltd. [2018 (5) TMI 357 - SUPREME COURT] had held that when expenditure are reduced from the export turnover, the same need to be reduced also from the total turnover while calculating deduction u/s 10A of the I.T.Act. In view of the dictum laid down by the Hon’ble Apex Court, ground No.1 raised in Revenue’s appeal is rejected.
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9911796707
