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Showing 341 to 360 of 2067 Records
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2017 (11) TMI 1729
Corporate insolvency procedure - defects have not been removed within 7 days which is mandatory - Held that:- As relying on case of M/s Surendra Trading Company Vs M/s Juggilal Kamlapat Jute Mills Company Ltd [2017 (9) TMI 1566 - SUPREME COURT OF INDIA] wherein held that subsection (5) of Section 7 or proviso to sub-section (5) of Section 9 or proviso to sub-section (4) of Section 10 relating to removing of defects within 7 days is not mandatory.
Thus we have no other option but to set aside the impugned order dated 19th July, 2017. It is accordingly set aside. The case is remitted back to the Adjudicating Authority, who after notice to the parties will consider the case. If there is any defect, the appellant be allowed time to remove the defects. The appeal is allowed with the aforesaid observations.
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2017 (11) TMI 1728
Unexplained expenditure u/s 69C - loose paper folders seized - explanation of seized material - Held that:- Additions could not be made merely on the basis of entries in loose papers without bringing on record any cogent material to substantiate the same and further additions could not be made merely on the basis of doubts, conjectures or surmises. Hence, we delete the impugned additions and allow assessee’s ground of appeal.
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2017 (11) TMI 1727
Suo-moto abatement - manufacture of Pan Masala - Compounded Levy Scheme - whether the assessee have rightly taken suo-motu abatement under the fact that they operated there factory, manufacturing Pan-Masala notified goods under the Pan Masala Packing Rules, 2008?
Held that:- The issue of taking suo-motu abatement by an assessee operating under Compounded Levy Scheme, has been decided in favour of the assessee by Hon'ble Gujarat High Court in the case of Thakkar Tobacco Products Pvt. Ltd. [2015 (11) TMI 319 - GUJARAT HIGH COURT] - there is no merit in the appeal filed by the revenue and the same is dismissed.
Whether abatement is permissible when machine (s) producing notified goods of a particular MRP have not operated for 15 days or more in a month, though other machines in the same factory are operated during that month? - Held that:- Same issue decided in the case of DHARAMPAL SATYAPAL LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE –NOIDA [2017 (12) TMI 150 - CESTAT ALLAHABAD], where it was held that The statute has provided specific provision for adjustment of duty - also, the appellant is entitled to rebate/refund of the excess duty paid during the period of closure of their packing machine during the month of July, 2009 as admittedly the said machine remain uninstalled for a continuous period of more than 15 days as required under the Rules - decided in favor of appellant-assessee.
Appeal allowed - decided in favor of assessee.
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2017 (11) TMI 1726
Manpower Recruitment Agency service - demand of 75% of Service Tax - N/N. 30/2012-ST dt 20.6.2012 - in one case demand was paid on being pointed out - in another case, appellant did not pay service tax as supplier paid 100% of tax, and appellant claims that no demand is sustainable against the appellant - Held that:- As per N/N. 30/2012-ST dt 20.6.2012 there is no dispute that the appellant was required to pay 75% of the Service Tax on ‘Manpower Recruitment Agency Service’ availed. For the initial period, on pointing out by the Revenue the appellant immediately paid Service Tax. In that circumstance, the said demand is not sustainable against the appellant.
For the another invoice on which the appellant did not pay Service Tax but the service provider paid the 100% of Service Tax. In that circumstance, the appellant is not required to pay 75% of the Service Tax in terms of Notification No. 30/2012-ST dt 20.6.2012 - in such case, if the payment has made by the appellant, the same shall become double taxation against the appellant which is not permissible in the law.
Demand set aside - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1725
TPA - comparable selection criteria - functional profile - Held that:- The assessee company is engaged in the business of digital switching equipment and related software, cellular exchange / transmission equipment and provides related services, intelligent network and broadband solutions, equipment and related services, thus companies functionally dissimilar with that of assessee need to be deselected from final list.
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2017 (11) TMI 1724
TPA - comparable selection - functinal comparability - Held that:- The assessee is a company incorporated on 19.03.2004 and is wholly owned subsidiary of Omniglobe International LLC, USA, which is engaged in the provision of BPO/Data Processing Services to its AE. It also provides IT Enabled services relating to phone activation and local number portability to various clients for and on behalf of its parent company, thus companies functionally dissimilar with that of assessee need to deselected from final list.
As three comparables [Accentia Technologies Ltd., TCS E-Serve Ltd. and Infosys BPO Ltd.] are excluded from the list of comparables, the average margin of the OP/OC of the comparables comes to 11.60% as against 8.63% margin declared by the assessee and the assessee falls within +/-5%. The TPO is accordingly directed to verify the same and pass appropriate order. The grounds raised by the assessee are accordingly partly allowed.
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2017 (11) TMI 1723
Recovery of loan - sale of mortgaged property to recover loan or not - Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Held that:- The petitioner will deposit a sum of ` 10 lacs within a period of two weeks and pay the balance amount thereafter to save the property mortgaged to secure the loan.
Notice of motion for 13.12.2017.
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2017 (11) TMI 1722
Rejection of application u/s 12AA - Charitable object - Held that:- Relevant aspect required to be examined by the CIT for the purpose of granting registration was with regard to the objects of the society being charitable in nature and if the activities are genuine i.e. in consonance with the charitable objects. Clearly, neither the Commissioner nor the Tribunal recorded any finding on the aforesaid aspects.
The argument advanced by learned counsel for the assessee that since there is no finding in the order of the CIT therefore those conditions stood satisfied cannot be accepted as that being the only matter to be examined by the CIT, the same had to be specifically dealt with. No presumption can arise in favour of either party, in absence of any finding on that aspect or issue.
However, there is force in the submission made by learned counsel for the assessee that the finding of the CIT was based on extraneous or irrelevant consideration and the order of the Tribunal, the order of CIT, to that extent, is wholly justified. In that view, the questions of law are answered accordingly. The matter is remitted to the Commissioner of the Income Tax to decide the petitioner's application for exemption afresh, in accordance with law keeping the scope of inquiry limited to the provisions under Section 12AA of the Act.
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2017 (11) TMI 1721
Revision u/s 263 - denial of exemption granted by the AO u/s 54EC and 54F towards investments in capital gains by way of purchasing bonds and residential property, as those investments were made beyond the time limit specified under the aforementioned provisions - Held that:- The scope and jurisdiction under Section 263 of the Act, has been well articulated by a catena of decisions. It has been held that not only those aforementioned two conditions have to be satisfied, but also that while exercising the powers under Section 263, the Commissioner must not sit as an appellate authority and that where two views are possible and if the AO has taken one plausible view, the Commissioner cannot interfere with such view, merely because he has taken a different view.
In the light of Section 2(47), it cannot be said that the view taken by the AO, was not a plausible one. In the absence of any specific provision which determines the actual date of transfer, the view taken by the AO that the date on which form No.7B was signed by both parties and presented to the purchaser company, is the date of effective transfer, can be a plausible view. On these facts of the case, the Commissioner ought not to have exercised his revisional jurisdiction under Section 263 of the Act. - decided in favour of assessee
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2017 (11) TMI 1720
CENVAT Credit - whether CENVAT credit of the service tax paid on repair and maintenance service at their factory premises after 1.4.2011 is admissible or otherwise? - Held that:- This Tribunal considering the scope of amended definition of ‘input service’ under Rule 2(l) of the Cenvat Credit Rules, 2004 and the Board’s Circular issued pursuant to the said amendment, in Ion Exchange (I) Ltd’s case [2017 (12) TMI 151 - CESTAT AHMEDABAD], held that construction service relating to repair work inside the factory premises would continue to fall within the meaning of ‘input service’ under Rule 2(l) of the Cenvat Credit Rules, 2004 - Credit allowed - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1719
Assessment u/s 153A - Unexplained credits u/s 68 - Held that:- A notice was sent through registered post but the same has been returned with the remarks ‘assessee left”. No other address/correct address of the assessee has been filed by the Department . However, when the ground of appeal and the impugned order was perused, it was found that the CIT(A) has deleted the impugned addition made by the Assessing officer observing that no incriminating material was found during the search action carried out in the case of the assessee. That the income tax returns and the assessment proceedings there upon also stood concluded on the date of search action carried on 4.10.2012 and no assessment / re-assessment was pending on the said date.
Hon'ble Delhi High Court in the case of ‘CIT Vs. Kabul Chawla’[2015 (9) TMI 80 - DELHI HIGH COURT] wherein have been unanimous to hold that in the absence of any incriminating material found during the search act ion, when there was no pending assessment which can be said to have abated on the date of search, the additions cannot be made. - Decided in favour of assessee.
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2017 (11) TMI 1718
Territorial jurisdiction of the Commissioner of the Service Tax, Raipur - Did CESTAT act otherwise than in accordance with law by not considering the issue of territorial jurisdiction of the Commissioner, Service Tax, Raipur to pass the order which was the impugned before the Tribunal? - Held that:- Held that:- he impugned order of CESTAT is vitiated for non-consideration of the question of the territorial jurisdiction of the Commissioner, Service Tax, Raipur, as specifically raised in the appeal before CESTAT. This is more particularly because such issue of territorial jurisdiction was raised before the authority of the first instance at the earliest opportunity. The collateral issue based on the doctrine of prejudice has also to be answered in favour of the appellant since non-consideration of the territorial jurisdiction of the Commission at Raipur, in spite of such plea being specifically raised, may foreclose that issue qua the appellant which, it is submitted, has operations elsewhere as well.
Appeal allowed.
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2017 (11) TMI 1717
TDS u/s 195 - levy of interest u/s 201(A) - assessee failed to deduct tax at source as mandatorily required u/s 195 and wrongly gave benefit of the orders u/s 195/197 of the Act, beyond the amount and period of their validity? - Interest on the amount of tax which had already been paid on the due date - Held that:- In the instant case Ravi Builder, on whose behalf the tax was to be paid by the assessee, had duly paid its tax and was not required to pay any tax to the Revenue in respect of the income earned by it from the assessee. If the tax was duly paid and that too at the time when it had become due, it would not be proper on the part of the Revenue to levy any interest under Section 201(1A) of the Act especially when Ravi Builder had paid more amount of tax by way of advance tax than what was payable by it.
As the amount of tax payable by the contractor had already been paid by it and that too in excess of the amount which was payable by way of advance tax, in our opinion, the Tribunal was absolutely right in holding that the tax paid by the contractor in its own case, by way of advance tax and self-assessment tax, should be deducted from the gross tax that the assessee should have deducted under Section 194C while computing interest chargeable under Section 201(1A). If the Revenue is permitted to levy interest under the provisions of 201(1A), even in a case where the person liable to pay the tax has paid the tax on the date due for the payment of the tax, the Revenue would derive undue benefit or advantage by getting interest on the amount of tax which had already been paid on the due date. Such a position, in our opinion, cannot be permitted. - Decided in favour of assessee.
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2017 (11) TMI 1716
Corporate insolvency process - outstanding debt - Held that:- The present petition has been filed in the form and manner prescribed under the Code. It is annexed with the copies of the invoices and delivery receipts. Due notice u/ s 8 of the Code was sent by the Director of the Operational Creditor authorised to initiate the present proceeding vide a Board Resolution. The notice, which was annexed with the required invoices and other document, remained unreplied. The petitioner has maintained a ledger account reflecting the statement of debit and credit in respect of their dealings with the Corporate Debtor.
The Bankers of the Operational Creditor viz. Standard Chartered, vide their letter dated 23.10.2017 have certified that the amount of ₹ 8,58,426.87 in the account of the Operational Creditor has not been received from the Corporate Debtor.
Despite service on the Corporate Debtor vide different modes, none has appeared on behalf of the respondents to offer any resistance. From the facts of the case, this Bench is satisfied that the Operational Creditor is entitled to initiate the Insolvency Resolution Process against the Corporate Debtor for non payment of its dues. This petition u/ s 9 of the Code is therefore Admitted. A moratorium in terms of section 14 of the Code is being issue
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2017 (11) TMI 1715
Disallowance u/s 14A in respect of expenditure incurred for setting up STPI unit at Chennai - contention of the assessee that no disallowance can be made u/s 14A, when there is no exempt income - Held that:- As decided in the case of Cheminvest Ltd vs CIT [2015 (9) TMI 238 - DELHI HIGH COURT] has observed that when there is no exempt income, disallowance of expenditure u/s 14A cannot be made. Therefore, we direct the AO to delete addition made towards expenditure incurred for setting up of STPI unit u/s 14A of the Act. We further direct the AO to delete adjustment made towards book profit computed u/s 115JB of the Income-tax Act, 1961. As a result, grounds raised by the assessee are allowed.
Nature of expenditure - Disallowance of expenditure incurred in respect of legal and professional fees and stamp duty - expenditure incurred is in the nature of capital expenditure OR revenue expenditure - Held that:- We find that the expenditure incurred is in the nature of professional expenditure for Oracle migration and accounting software for STPI unit and annual membership fees paid to STPI, a government of India undertaking are in the nature of recurring expenditure which does not give any enduring benefit to the assessee. Stamp duty incurred for registration of lease agreement is also revenue expenditure irrespective of period of lease. This legal proposition is supported by the decision in the case of CIT vs Cinecita (P) Ltd [1982 (2) TMI 58 - BOMBAY HIGH COURT] wherein it was held that expenditure on registration fee, stamp duty and solicitor’s fee incurred in connection with registration of lease deed is revenue expenditure irrespective of period of lease. Therefore, we are of the view that the AO was erred in treating the expenditure as capital in nature.
Also AO has made addition towards total expenditure incurred for setting up of STPI unit at Chennai u/s 14A and also made separate addition towards capital expenditure. Though relief is granted in the rectification order dated 10- 03-2011, there is no clarity on the issue as to whether the relief was allowed towards addition made u/s 14A or addition made under the head ‘legal and professional charges’. Therefore, we are of the view that the issue needs to be re-examined by the AO and hence, we set aside the issue to the file of the AO and direct him to give a finding as to whether relief is given towards addition made under the head ‘legal and professional charges’ or disallowance u/s 14A of the Act.
TDS u/s 194C/194J - professional fees, purchase of samples, hall hire charges and food charges for failure to deduct tax at source - According to the assessee, all these expenses are reimbursement of expenditure incurred by third parties on behalf of the assessee without any profit element - Held that:- . Though the assessee claims to have reimbursed the expenditure, on perusal of the details filed by the assessee it appears that most of the expenditure like hall hire charges and food charges are incurred for the purpose of conducting interview are directly incurred by the assessee. Insofar as reimbursement of interview charges to certain parties, the assessee has filed some confirmation letters to prove that these are reimbursement of expenses. Therefore, we are of the view that the issues need to be re-examined by the AO afresh; hence we set aside the issue to the file of the AO and direct him to consider the issue afresh after affording an opportunity to the assessee.
Set off of business loss - Held that:- As pre condition of continuation of business has been dispensed by the Finance Bill, 1999 and, therefore, the provisions of section 72 would be applicable but not provisions of section 71 as held by the AO and the first appellate authority. We are of the view that the AO was erred in restricting set off of brought forward business losses; hence, we direct the AO to allow brought forward losses as claimed by the assessee.
Disallowance of miscellaneous hardware expenditure - revenue or capital expenditure - depreciation claim - Held that:- We find force in the arguments of the assessee for the reason that once a particular expenditure has been disallowed as capital expenditure, the AO is bound to allow depreciation allowable on such capital expenditure as per the provisions of the Act. Therefore, we direct the AO to allow depreciation on miscellaneous hardware expenditure treated as capital expenditure. Hence, the ground of assessee is dismissed.
MAT computation - adjustments towards provision for fringe benefit tax for book profits computed u/s 115JB - Held that:- We find that though the assessee has taken a ground on the issue, on perusal of the assessment order of AO as well as directions of the DRP u/s 144(5), the AO has not made any adjustments to book profit computed u/s 115JB of the Act. The AO has accepted book profit computed by the assessee without any modification except addition made u/s 14A in respect of expenditure incurred for STPI unit at Chennai. Therefore, we are of the view that the issue is not emanating from the orders of lower authorities; hence, there is no merit in the ground raised by the assessee.
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2017 (11) TMI 1714
Auction settlement by the Mumbai Housing and Area Development Board - Held that:- The claim of the Respondent for settlement of a government property by way of a private largesse, without open advertisement, is completely unfounded in the law. Its letter dated 30.06.1999 requesting for a sympathetic consideration for settlement with it, as otherwise the property was likely to be occupied by encroachers, is but a travesty of the law.
The plea that the Respondent was never made aware of the order of cancellation dated 22.02.2000 merits no consideration as it was also revealed in the counter affidavit of the State of Maharashtra dated 11.07.2005 in Writ Petition No. 2112 of 2005. The cancellation order was addressed to MHADA and copy marked to the Respondent. There shall be a presumption in law that a government communication was properly made and reached the addressee, under Section 114 (e) of the Indian Evidence Act. It is not the case of the Respondent that the order never came to be issued and remained in the file. The Respondent despite awareness never challenged the cancellation and which sets at naught its entire claim. Any offer made to the Respondent in teeth of, and after the cancellation was therefore redundant.
Appeal lacks merit and is dismissed.
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2017 (11) TMI 1713
Addition u/s 68 - claim towards trade credit unexplained - Held that:- The Court is of the opinion that the question urged is purely factual. Since the findings recorded by the CIT(A) and the ITAT are concurrent, they reflected that the trade advances received by the applicant were adjusted against the sales made to them in the subsequent years. As such, no question of law arises.
For enhancement of licence fee is concerned, the facts are that the Assessee was originally paying ₹ 50 lakhs per months licence fee to M/s. Flex Group of Companies. During the Assessment Years in question, the fee was revised mid-term to ₹ 2 crores per month. The A.O. add ₹ 9 crores, upon an understanding that the licence fee increased was arbitrary. The CIT(Appeals), however, deleted this entire amount. The Revenue’s Appeal succeeded substantially to the extent of ₹ 6 crores. No justification to interfere with the ITAT’s findings, which are also factual as far as this issue goes.
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2017 (11) TMI 1712
Condonation of delay in filing appeal - appellant filed an appeal before the Commissioner (Appeals) on 30.06.2014 after a delay of more than three months - Section 85(3A) of Finance Act, 1994 - Renting of immovable property service - non-payment of service tax - Held that:- The issue with regard to the condonation of delay beyond the period specified in the statute in filing appeal has already been decided by a Full Bench of this Court in State of Haryana Vs. Hindustan Machine Tools Ltd., [2015 (6) TMI 498 - PUNJAB & HARYANA HIGH COURT], wherein it was held that wherever the extent of condonable period is specifically prescribed by a statute, it would not be appropriate even under Articles 226/227 of the Constitution of India to entertain the writ petition so as to breach the express provision in the statute and act contrary to the mandate of the legislature.
Further in Patel Brothers Vs. State of Assam and others, [2017 (1) TMI 330 - SUPREME COURT], it has been held by the Apex Court that condonation of delay by invoking Section 5 of the Limitation Act, 1963 when such delay is beyond the prescribed period, is not permissible.
Appeal dismissed - decided against appellant.
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2017 (11) TMI 1711
Scheme of amalgamation - Invalid proxy form - present application has been filed with the prayer for amendment of order and then accepting the prayer for dispensing with the requirement of convening, holding and conducting the meeting of the Secured Creditors for the Transferee Company No. 3 - Held that:- Scheme of Amalgamation, which was presented at the stage of First Motion has not met the approval of the Creditors as per the report of the Chairperson and scrutinizer. The meetings of Creditors were convened on the request made by the applicant in its application of first motion. There is no request in the application for amendment of pleading in the first motion application. The Applicant appears to have further changed the Scheme as payment to certain Secured Creditors has now been made. It would, thus, require presentation of a new Scheme and the present Scheme has not been approved by the Secured Creditors and it would not qualify for an eventual approval of the Tribunal.
Therefore, we dismiss the application with the liberty to the Applicant to modify the Scheme and re-start the process by filing a fresh Company petition.
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2017 (11) TMI 1710
Revision u/s 263 - no business activity - Held that:- Appellate Tribunal while noting the facts has noted that in the scrutiny assessment under subsection (3) of Section 143 for the year 2006-2007 it was accepted that the respondent – assessee has not carried out any business activity and the business expenditure claimed in that year was disallowed.
We may note here that in the order dated 21st December, 2010 passed by the Assessing Officer which was reviewed it is specifically recorded that no business activity has been undertaken by the assessee during the relevant year. Assessing Officer while passing an order under subsection (3) of Section 143 in respect of Assessment Year 2006-2007 has examined the issue regarding allotment of plot by MIDC. Considering the fact that the order under subsection (3) of Section 143 for the Assessment Year 2006-2007 has become final, in paragraph 9.1 of the impugned order, the Appellate Tribunal has observed that the AO adopted one of the two courses permissible in law. Therefore, it was held that the order was not erroneous - no substantial question of law
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