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Showing 381 to 400 of 2063 Records
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2019 (1) TMI 1685
Approval of Scheme of Arrangement - submission of revised financial statement in compliance of Section 131 of the Companies Act, 2013 - section 230 of the Companies Act, 2013 read with Rule 15 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- As per Section 128(1) the transferor shall prepare and keep at registered office books of account and other relevant books and papers and financial statement for every financial year which give true and fair view of the state of the affairs of the company, including that of is branch office or offices, if any, and explain the transaction effected both at the registered office and its branches and such books shall be kept on accrual basis and according to the double entry system of accounting.
The submission that the Chartered Account has submitted a certificate certifying that the Transferor Company has complied with the Accounting Standard 9 and therefore, the asset value shown in the Balance Sheet is the value in the Books of Account kept in the company appears to me is not correct. Accordingly, the objections raised on the side of the Central Government regarding the approval of the scheme is found sustainable.
The applicant is hereby directed to comply with the above said provisions and submit a revised financial statement in compliance of Section 131 read with Section 128(1) of the Companies Act, 2013 - List it for submission of revised financial statement and for further consideration on 18/03/2019.
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2019 (1) TMI 1684
Classification of imported goods - multi functional copiers - restricted goods or not - Revenue is of the view that these imports cannot be classified as multi-functional copiers but have to be considered as photocopiers as it would include multi-functional copiers and since these were second hand photocopiers they are liable for duty under Tariff Heading No. 84433930 while the claim of the appellant is that these goods would fall under 84433100 - whether the impugned goods classifed under CTH 84433930 or under CTH 84433100? - Period prior to 05.06.2012.
HELD THAT:- Prior to 05.06.2012 photocopiers (second hand) were restricted items and required license to import, while there was no such restriction for multi-functional copiers - This finding is recorded by the Bench in the appellant’s own case M/S. SRI SAI GRAPHICS, M/S. VISHWAKNA ENTERPRISES, M/S. KATKE DIGITAL PRINTERS VERSUS CC, HYDERABAD [2016 (7) TMI 542 - CESTAT HYDERABAD] wherein, the Bench recorded why this view is taken, holding that in view the fact that the Chartered Engineer Certificate has certified that the goods imported are not e-waste, we hold that goods, in question, were not restricted for import and as such no import licence was required for their import
Impugned order not sustainable - appeal allowed - decided in favor of appellant.
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2019 (1) TMI 1683
Penalty u/s 271(1)(C) - Tribunal deleted the penalty on the grounds that quantum additions have been deleted in the assessee's appeal - By separate order passed today in R.M. INVESTMENT AND TRADING CO. PVT. LTD. [2019 (4) TMI 1232 - BOMBAY HIGH COURT] we have dismissed the Revenue's Appeal against the subject judgment of the Tribunal. In the result, these Appeals also stand dismissed.
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2019 (1) TMI 1682
Maintainability of petition - existence of remedy of statutory appeal - HELD THAT:- The respondents have already passed order in original, against which statutory appeal is tenable at law - In view of the fact that efficacious alternative remedy is available to the petitioners, this writ petition is disposed of, reserving liberty with the petitioners to challenge the order in original dated 31st January, 2017, passed by the Assistant Commissioner, Central Excise and Service Tax, Ranchi-I.
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2019 (1) TMI 1681
Initiation of CIRP - Winding up of company - Approval of Resolution plan - suppression of material facts by the Corporate Applicant, without disclosing that the company has been wound up by order of the Hon’ble High Court - HELD THAT:- It is clear that IDBI Bank, a Member of Financial Creditor had initiated the winding up proceedings against the Corporate Debtor, bearing CP No.26 of 2013. IDBI Bank has stated that the Corporate Debtor was fully aware of the winding up proceedings and despite that Corporate Debtor filed proceedings under section 10 without disclosing that the winding up order has already been passed by the Hon’ble High Court against and the company has been wound up. The Official Liquidator had been directed by the Hon’ble High Court to proceed with the procedure of winding up expeditiously. It is further stated in the Affidavit of IDBI Bank that before the 2nd COC meeting dated 17.11.2017 the IDBI Bank vide email 16.11.2017 intimated to the RP about the winding up order of the Hon'ble High Court dated 25.1.2017 - On perusal of the minutes of CoC, it appears that the Financial Creditor IDBI Bank has informed the CoC about the order dated 25.1.2017 passed by the Hon’ble High Court liquidating the Corporate Debtor.
Given the provision of Sec 11(d) of the IB Code the corporate debtor was not entitled to make an application for initiation of Corporate Insolvency Process U/S 10 of the I & B Code. But the corporate debtor has filed the petition U/S 10 of the code, after suppressing material facts that the company was wound up by the order dated 25.1.2017 of the Hon’ble High Court.
After liquidation order passed in a winding-up petition against the corporate debtor then it is barred from filing a petition under section 10 of the Code. Here the corporate debtor has not only suppressed the material fact that the winding up petition has not only been filed and admitted, but liquidation order has also been passed against the corporate applicant/corporate debtor liquidator has been directed to expedite liquidation proceedings expeditiously. The corporate applicant suppressed this material fact, knowing it to be material, and filed the petition under section 10 and in contravention of Rule 10 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The alleged act of the corporate applicant is punishable under section 77 (a) of the Insolvency and Bankruptcy Code 2016. The Registrar of Companies, Mumbai is directed to lodge prosecution against the corporate applicant under section 77(a) of the insolvency and bankruptcy code in 2016 - Since the petition has been filed under section 10 of the Insolvency and Bankruptcy Code 2016 after the suppression of the material facts, which were known to be material, therefore the petition is rejected with cost ₹ 10 lakhs which shall be paid by the Corporate Applicant. The cost will be deposited in the account of the Prime Ministers National Relief Fund.
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2019 (1) TMI 1680
Maintainability of application - initiation of CIRP - default due and payable by the corporate debtor - financial creditor - 'allottee' under a 'real estate project' - existence of debt and dispute or not - HELD THAT:- The provisions of Section 7 (2) and Section 7 (5) of IBC have been complied.
After a conjoint reading of the aforesaid provision along with Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, it can be concluded that a default has occurred and the application under sub-section 2 of Section 7 is complete. The name of the IRP has been proposed and there are no disciplinary proceedings pending against the proposed Interim Resolution Professional.
Petition admitted - moratorium declared.
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2019 (1) TMI 1679
GTA service - Person liable to pay the service tax - Cooperative Societies - it was held in the case that the transporters in the present case are clearly covered by the definition of “Goods Transport Agency” hence Assessees are liable to pay service tax being within the definition of “person liable to pay service tax” under Rule 2(d)(v) - HELD THAT:- SLP dismissed.
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2019 (1) TMI 1678
Admissibility of application - Initiation of CIRP - Corporate debtor failed to male repayment - ‘default’ in payment of ‘debt’ or not - HELD THAT:- In the present case, parties have settled the matter before constitution of the ‘Committee of Creditors, and argued that the respondent do not want to proceed with the matter and wants to withdraw the application and in view of the fact that the Adjudicating Authority failed to consider the question of ‘default’ as was raised by the ‘Corporate Debtor’, the impugned order dated 10th January, 2019 is set aside and application under Section 7 dismissed as withdrawn - appeal allowed.
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2019 (1) TMI 1677
Non-imposition of penalty u/s 114A of CA - Valuation of imported goods - poppy seeds - rejection of declared value - enhancement of value - HELD THAT:- In the present appeal, grievance of Revenue is that non-imposition of penalty under Section 114A ibid in the impugned order is not legal and proper - Since, the adjudged demands confirmed in the impugned order dated 28.02.2012 were set aside by the Tribunal vide order dated 20.10.2015 on merits, the prayer made by Revenue for imposition of penalty under Section 114A ibid cannot be sustained.
Appeal dismissed - decided against Revenue.
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2019 (1) TMI 1676
MAT applicability - Grant of benefit to the assessee u/s 115JB - assessee is the Bihar State Finance Corporation created by Central Finance Corporation Act, and therefore, it is held to be a corporation created under the statute and not a company registered under the Companies Act, 1956 - HELD THAT:- Since the tax effect in the present case is less than ₹ 1 crore, we see no reason to entertain the special leave petition.
The special leave petition is, accordingly, dismissed.
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2019 (1) TMI 1675
Condonation of delay in filing petition - service of order - HELD THAT:- Though it is contended in the writ petition that the impugned order was never served upon the petitioner and it was in the month of August 2018 only when he could know about the said order, but it is nowhere stated in the writ petition as to on which date and by which mode he came to know about the impugned order - In the absence of any such plea, the Court observes that the impugned order was well within the knowledge of the petitioner from the very inception, but the petitioner slept over his rights for a considerable time and chose not to file statutory appeal within the period of limitation and now after expiry of period to file the appeal, the petitioner has filed the writ petition belatedly.
Petition dismissed.
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2019 (1) TMI 1674
TP adjustments - Arm's Length price - marketing expenses - cost allocation of Central Service Charges - corresponding expenditure of comparable companies - common service center services provided by AE - the cost incurred thereon would have to be shared by all the participant countries including the assessee-company in the ratio of turnover. These services are in the nature of shared services and are therefore customized for the Abbott group.
Held that:- the assessee obviously had to incur certain advertisement and marketing expenses for distribution of its products. In any case, we also hold that the ld.TPO cannot look into the propriety of incurrence of expenses by the assessee. - The role of ld.TPO is to see whether all transactions carried out by the assessee with its AEs fall within the ambit and meaning of international transaction u/s 92B of the Act and that whether the same was transacted at arm's length price, for which purpose the determination of price should be made in accordance with any of the methods prescribed in the statute u/s 92C of the Act.
It is not disputed that the total cost incurred by the group and the cost allocation made to assessee-company under each head was duly certified by an independent Accountant, who was appointed for this specific purpose in accordance with the conditions laid out in the Service Centre Agreement. When such costs that had been allocated to the assessee-company had been absorbed by making the payment to AEs for the services rendered by AEs (which is not disputed by the Revenue before us), then the action of the lower authorities in determining the arm's length price of such services at Rs.Nil is unwarranted.
The lower authorities were not justified in determining the arm's length price in respect of marketing expenses at Rs.Nil as against the claim of ₹ 79,04,690. - Decided in favor of assessee.
Bad debts - landlord refused to refund the deposit. - deposit was duly written off in the books of account by the assessee - Held that:- the ground raised by the Revenue itself is patently wrong inasmuch as the Revenue is expecting the assessee to comply with the conditions of section 36(2) of the Act by offering the income in the hands of the assessee in earlier years. The ground also suggests that the assessee had made claim u/s 36(1)(vii) of the Act, which in the instant case is not claimed by the assessee. The assessee has claimed deduction only u/s 28 of the Act after duly satisfying the conditions laid down for such claim. - Decided against the revenue.
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2019 (1) TMI 1673
Scope of Advance Ruling application - Section 97(2) of CGST Act, 2017 - Place of supply of services - clarification sought on “place of supply” of the liaison services extended by him to the overseas manufacturers without any Indian subsidiary / India Liaison office - HELD THAT:- The applicant, sought Advance Ruling in “Place of Supply “issue, which is outside the purview of the Advance Ruling Authority as per Section 97(2) of CGST Act, 2017.
The application is not admitted under Sec 98 (2) of CGST Act, 2017 and APGST Act, 2017.
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2019 (1) TMI 1672
Denial of request for conversion of shipping bills - conversion of shipping bills filed under the ‘Duty Exemption Entitlement Certificate’ (DEEC) scheme in the Foreign Trade Policy notified under Foreign Trade (Development and Regulation) Act, 1992, to shipping bills entitled to claim for drawback - HELD THAT:- The authority concerned must be satisfied that the conditions contingent upon which the privilege is claimable at the time of export should have been fulfilled in entirety at the time of export and this is to be evidenced by the record of examination in the shipping bills - The appellant in this case has been unable to do so as clearly noted by the competent authority in the impugned order.
There are no reason to interfere with the denial of conversion ordered by the adjudicating authority - appeal dismissed.
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2019 (1) TMI 1671
Government authority/ Government Entity or not - applicable rate of GST - work agreement entered into with the APSPDCL - liability of GST on value of materials recovered from our RA bills issued on cost recovery basis by APSPDCL - reverse charge mechanism - N/N. 13/2017-Central Tax Rate dated 28.06.2017.
Government authority/ Government Entity or not - Whether APSPDCL is a Government authority/ Government Entity or not? - HELD THAT:- The Applicant Contractee i.e. APSPDCL is a Government Company i.e. wholly owned by the Government of Andhra Pradesh. When a copy of Audited Annual Accounts of M/s APSPDCL for the Financial Year 2016-17 is examined, it is evident from the schedule of Equity Share Capital of the Annual Statement that 100% share capital is held by the Government of Andhra Pradesh in the name of Honourable Governor of Andhra Pradesh - Thus, it is concluded that the Government of Andhra Pradesh is having full control over the APSPDCL and covered under the definition of Government Entity.
Nature of work undertaken by the applicant - HELD THAT:- The applicant is engaged in execution of works awarded by M/s Southern Power Distribution Company of Andhra Pradesh Limited for (1) Construction of indoor sub-station with control room and civil works; (2) Electrical Works; (3) Providing bore well (4) Erection of 33KV line with 100 sqmm AAA Conductor (DC); (5) Erection of 11 KV line with100 sqmm Conductor; (6) Erection of 33 KV UG cable; (7) Erection of 11 KV UG cable ; (8) 33 KV Railway crossing. Further, for all civil works, where materials such as sand, metal, gravel etc, are involved, the rates are inclusive of seignorage charges as fixed by the competent authority of Government of A.P. and the same will be recovered from the contract bills for remittance to the Government - The contract with APSPDCL is a single composite contract for supply of the said works on semi turnkey basis under IPDS.
Work undertaken to execute/Implement various schemes for constructing sub stations, providing bore wells, erection of lines and required conductors etc. Moreover, the above works undertaken by APSPDCL are for business purpose and the benefit of Concessional Rate of 12% (6% under Central tax and 6% State tax) as per notification is NOT available to the applicant.
In the instant case, the contract entered by the applicant squarely falls under the works contract and falls under entry no. (ii) of S.No.3 of the table of Notification No.11/2017- Central Tax (Rate), Dated: 28th June 2017 as amended from time to time and corresponding notifications under APGST Act, 2017, and the applicable rate of tax is 18% - Since APSPDCL being the Contractee are recovering the cost of the materials that are used/consumed in the services provided to them by the applicant from the R.A. Bills issued, such cost recovered is to be included in the taxable value of the supply.
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2019 (1) TMI 1670
Works contract - Exemption from GST - Services supplied by Electricity Distribution Utilities - benefit of exemption to the Applicant being the contractor executing works to APSPDCL - exemption both for supply of material as well as service or limited only to service? - ITC on inward supplies of material and services for use in the execution of works to APSPDCL - process to get refund of ITC.
HELD THAT:- The works executed by the applicant in this case included design, manufacture, test, deliver, install, complete and commission facilities for conversion of existing LT Net Work into High Voltage Distribution System in various districts of Andhra Pradesh the World Bank Funding on turnkey basis - As seen from the nature of the work stated by the applicant, the works are industrial in nature as it involves conversion of existing LT network into High Voltage Distribution System.
In the instant case, the contract entered by the applicant squarely falls under the works contract and falls under entry no. (ii) of S. No. 3 of the table of notification No. 11/2017 - Central Tax (Rate), Dated - 28th June 2017 as amended from time to time and corresponding notifications under APGST Act, 2017, and the applicable rate of tax is 18% (9% under Central tax and 9% State tax). However, funding by the World Bank to either Government of Andhra Pradesh or to the Contractee i.e. APSPDCL has no bearing on the rate of tax.
Whether exemption under SI.No. 10A of Notification no. 12/2017-Central Tax (Rate), dated 28.06.2017, amended by notification no. 14/2018-Central Tax (Rate), dated 26.07.2018 is applicable to their works? - HELD THAT:- The said entry clearly states that the services supplied by Electricity Distribution Utilities attract nil rate of tax. Whereas, the said entry do not prescribe any nil rate for the services supplied to the Electricity Distribution Utilities. Therefore, the said exemption is not applicable to the services rendered by the applicant to the Contractee.
Since the works undertaken are classifiable under works contract service, segregation or vivisection will not arise. However, as the said exemption is not applicable to the said works contract, this query and also the queries on entitlement of ITC on the inward supplies, and refund of ITC in the event of the applicant is entitled for exemption from payment of GST, have lost their relevance.
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2019 (1) TMI 1669
Benefit of concessional rate of GST - supply of service - supply to Government, Government Agency or Government Entity in terms of the Notification No.20 dated:22-08-2017, Notification No. 24 dated:21-09-2017, Notification No.31 dated:13-10-2017 and, Notification No.32 dated:13-10-2017 - Government entity or not.
HELD THAT:- The Applicant Contractee i.e. APEPDCL is a Government Company i.e. wholly owned by the Government of Andhra Pradesh. When a copy of Audited Annual Accounts of M/s APEPDCL for the Financial Year 2016-17 is examined, it is evident from the schedule of Equity Share Capital of the Annual Statement that 100% share capital is held by the Government of Andhra Pradesh in the name of Honourable Governor of Andhra Pradesh. Thus, based on the above facts, it is concluded that the Government of Andhra Pradesh is having full control over the APEPDCL and covered under the definition of Government Entity.
The works undertaken by APEPDCL are for business purpose and the benefit of Concessional Rate of 12% (6% under Central tax and 6% State tax) are any other concessional rate is NOT available to the applicant - As per Section 2 of CGST Act, 2017 and APGST Act, 2017 defines “works contract” as a contract for building, construction, fabrication, completion, erection, installation fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract.
The composite supply of works contract as defined at Section 2 of CGST Act 2017 and APGST Act, 2017 is treated as supply of service in terms of Serial No.6, Schedule II of CGST Act 2017 and APGST Act, 2017.
In the instant case, the contract entered by the applicant squarely falls under the works contract and falls under entry no. (ii) of S. No. 3 of the table of notification no 11/2017 - Central Tax (Rate), Dated - 28th June 2017 as amended from time to time and corresponding notifications under APGST Act, 2017, and the applicable rate of tax is 18% (9% under Central tax and 9% State tax).
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2019 (1) TMI 1668
Time of supply - Some or part of the events occurred before implementation of GST laws - Levy of “Liquidated Damages” and other penalties like milestone penalties levied on suppliers/ contractors in the nature of making good the damages for any delays in supply of service or goods in the following cases - When some part of the delay in supply has occurred before the implementation of the GST and some part of delay in supply has occurred after GST came into force, whether GST will be applicable to the Liquidated damages imposed for entire period of delay or it would be applicable only to the period falling after introduction of GST?
HELD THAT:- In the normal course of business of steel manufacture and sale/ distribution of its products, RINL enters in to various contracts with vendors for providing materials and services for operational activities. In this case, if there is any delay on the part of the supplier/contractor to provide materials/ services, Liquidated damages (LD) are deducted from the amount payable to such vendor. The LD so deducted is treated as other miscellaneous income. In respect of contracts relating to Construction of new plant in expansion project or renovation of old plant, normally the contract is awarded to vendors to build the sub plant or a part of it on Turnkey basis - If there is any delay in completing the contract, the factual position would be ascertained, particularly to know the fact whether the contractor/vendor is responsible for the delay or not. If the delay is on account of the contractor, then Liquidated Damages would be calculated as per the contractual terms and same will be charged from the contractor.
Time of supply - HELD THAT:- The liquidated damages are determined and imposed upon the contractor after in-depth study. In terms of the agreement, the clauses revealed that the levy of liquidated damages is not when the delay is occurring but the liability of payment of these liquidated damages by the Contractor will be established once the delay in successful execution of work is established on the part of the Contractor. This would define the time of supply.
Liquidated damages if any collected/received under previously applicable Service Tax regime before coming into effect of GST, would be dealt with in accordance with the then existent provisions under applicable laws.
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2019 (1) TMI 1667
EOU - Imposition of penalty u/s 77 and 78 of FA - entire amount of service tax along with interest was deposited by the appellant before initiation of the show cause proceedings - Benefit of sub-section (3) of Section 73 of FA - HELD THAT:- It is an admitted fact on record that the appellant had incorrectly computed the service tax liability and had also paid the differential amount of such liability along with interest before issuance of the show cause notice - the payment particulars were duly reflected by the appellant in the periodic ST-3 returns filed before the department, which is evident from the observations made at paragraph 6 in the impugned order.
Further, the department has not substantiated the allegation of fraud, collusion, misstatement etc., in arriving at the conclusion that the appellant should be exposed to the penal consequences provided under the statute - Thus, in absence of any proper substantiation with regard to involvement of the appellant in the activities concerning fraud etc., the benefit of subsection (3) of Section 73 ibid should be extended to the appellant for non-issuance of show cause notice, especially for imposition of penalties.
Penalties set aside - appeal allowed - decided in favor of appellant.
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2019 (1) TMI 1666
Deduction claimed by the assessee on account of premium paid for the accountant risked policy premium was on correct principle - Whether the order of the tribunal rejecting such claim based on correct principles of law ? - Whether action of the revenue was barred by law ? - HELD THAT:- Appeal admitted on substantial question of law above
Since the respondent is represented by learned Counsel, service and issuance of notice of the appeal is dispensed with. Learned advocate-on-record for the appellant is directed to file informal papers book by 22nd February, 2019, serving a copy thereof upon the advocate-on-record for the respondent not later than seven days before the date of hearing of the appeal. All other formalities are dispensed with.
List this appeal on 14th March, 2019.
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9911796707
