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Showing 381 to 400 of 2075 Records
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2019 (3) TMI 1699
Deduction u/s 80P(2)(d) - Interest on Deposits placed by the appellant with the Cooperative Bank - Whether a co-operative bank is a co-operative credit society or not as specified under Sec. 80P(2)(d)? - HELD THAT:- Admittedly, as per the Explanation to Sec. 80P(4) the term “Co-operative bank” has to be construed as per the meaning given to it in Part V of the Banking Regulation Act, 1949 (10 of 1949). As is discernible from Sec. 56 (cci) of Part V of the Banking Regulation Act, 1949, a “Co-operative bank” means a state cooperative bank, a central co-operative bank and a primary cooperative bank. It is the case of the A.O that the assessee is a “Primary co-operative bank”.
As neither of the lower authorities have recorded any finding that the assessee was also accepting deposits or lending money from/to the non-members, therefore, the 1st condition envisaged in Sec. 56(ccv) of the Banking Regulation Act, 1949 would not be satisfied, as it cannot be held that the primary object or principal business of the assessee was as that of transacting banking business. Apart there from, as per Sec. 56(4) of the Banking Regulation Act, 1949 every co-operative society shall before commencing banking business in India apply in writing to the Reserve Bank for a license under the said section. In fact, a cooperative credit society cannot be held to have as its principal business as banking business in the absence of a banking license issued by the Reserve Bank of India under the Banking Regulation Act, 1949. Rather, the issue that a co-operative society cannot be held to be a co-operative bank in the absence of a license to do banking business is covered by the Hon’ble High Court of Karnataka in the case of CIT and Another vs. Sri Biuru Gurubasva Pattina Sahakari Sangha Niyamitha Bagalkot [2015 (1) TMI 821 - KARNATAKA HIGH COURT]
In absence of any material to the contrary available on record, are of the considered view that in can safely be concluded that the assessee is a cooperative credit society and not a co-operative bank.
Insofar the issue that a co-operative society is entitled to claim deduction u/s 80P(2)(d) on the interest received from deposits with a co-operative bank is concerned, the same we find is covered by the order in the case of Kaliandas Udyog Bhavan Premises Co-operative Society Ltd. Vs. ITO-21(2)(1), Mumbai [2018 (4) TMI 1678 - ITAT MUMBAI].
It can safely be concluded that the assessee which is a co-operative credit society was duly entitled to claim deduction u/s 80P(2)(d) on the interest income on its investments held with the co-operative banks.
Assessee which is a co-operative credit society is entitled to claim deduction on its investments held with the co-operative banks, therein direct the A.O to allow the same to the said extent. The order of the CIT(A) is set aside in terms of our aforesaid observations. - Decided in favour of assessee.
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2019 (3) TMI 1698
CENVAT credit - inputs removed as such to a unit situated in the Special Economic Zone (SEZ) by using Form No. ARE-I - Rule 3(5) of the CENVAT Credit Rules, 2004 - HELD THAT:- Rule 3(5) of the CENVAT Credit Rules, 2004 provides that, when the inputs on which CENVAT Credit has been taken are removed as such from the factory, the manufacturer of the final product shall pay an amount equal to the credit availed in respect of such inputs and such removal shall be made under the cover of an invoice referred to in Rule 9 - In the case at hand, it is not in dispute that the inputs were removed as such from the factory of the appellant. It is also not in dispute that the inputs were removed to a unit situated in the SEZ. The term 'export' is defined under Section 2(m) of the SEZ Act which includes supply of goods from the Domestic Tariff Area (DTA) to a unit in the SEZ.
Section 26 of the SEZ Act provides about the exemptions, drawbacks and concessions to an entrepreneur within the SEZ. Under It is not in dispute that the inputs in this case were removed from the factory of the appellant to a unit in the SEZ under the cover of ARE-1 Form and therefore the appellant is entitled to the exemption permitting retention of the credit availed on the duty paid on inputs. In terms of Rule 6(6) of CENVAT Credit Rules it is contended that, the liability for reversal of the credit, envisaged under Rule 3(5) of the CENVAT Credit Rules, will not apply in this case because the inputs have been cleared to a unit in the SEZ through the bond executed. Therefore the demand for reversal cannot be sustained, is the contention.
In this regard, Circulars issued by the Central Board of Excise & Customs assumes importance. In Circular No. 29/2006-Cus., dated 27-12-2006, which pertains to implementation of the SEZ Act, 2005, it is provided that, in the light of provisions contained under Sections 2(m) and 51 of the Act, the supplies from DTA to a unit in the SEZ for authorized operations inside the SEZ, may be treated as in the nature of exports - It is mentioned that the provisions under Rule 30(1) of the SEZ Rules was framed in line with those provisions and it provides that a DTA supplier supplying goods to the SEZ shall clear the goods either under bond or as duty paid goods under the claim of rebate on the cover of ARE-1. It is further clarified that, since the SEZ is deemed to be outside the customs territory of India, any licit clearance of goods to the SEZ from DTA will continue to be exported and therefore be entitled to the benefit of rebate under Rule 18 of Central Excise Rules and for refund of the accumulated CENVAT Credit under Rule 5 of the CENVAT Credit Rules, 2004.
Since there is no dispute that the inputs were removed as such to a unit in the SEZ under cover of ARE-1, the above said provisions will apply and the appellant has to be exempted from reversal of credit availed on the duty paid on inputs.
Hence, the position remains clarified through the circular issued by the Central Board of Excise and Customs (Circular No. 1001/8/2015-CX.8, dated 28-4-2015) - the appellant need to be held as entitled for the CENVAT Credit and the demand for reversal of the credit availed along with interest and penalty with respect to the inputs removed as such to a unit situated in the Special Economic Zone, cannot be sustained - appeal allowed - decided in favor of appellant.
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2019 (3) TMI 1697
Reopening of portal for filing of GST TRAN-1 form - transitional credit - section 140(3) of the Central Act - HELD THAT:- There is no difficulty for the petitioner to upload such details within the above time. The respondents shall allow to upload such details within 31.03.2019.
Petition disposed off.
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2019 (3) TMI 1696
TP Adjustment - Arm’s Length Price (ALP) of the reimbursement of technical fee - HELD THAT:- The purpose of determining ALP of a transaction is to find out as to whether similar kind of payments would have been made to an unrelated party for similar kind of services rendered. Hence the details relating to nature of services that were received by the assessee are, in our view, crucial for determining ALP. Hence we are of the view that the TPO has not questioned the genuineness of transactions. We also agree with the contentions of the Ld. DR that the copies of invoices received by the assessee from its AE would not demonstrate the details of services received by the assessee. From the order of TPO, we noticed that the assessee has given examples of services received by it from its AE
Though the assessee has claimed to have received the above said services, yet it has not furnished any material to demonstrate that the above said services were actually received. Hence, in the absence of any material to prove the details of services actually rendered by the AE, it would be difficult for the tax authorities as well as for the Tribunal to appreciate the contentions of assessee. Before us, the Ld. AR submitted that the assessee has prepared a detailed note explaining the details of services received by it.
In the interest of natural justice, we are of the view that the assessee may be provided with one more opportunity in this matter. Accordingly we admit the additional evidences furnished by the assessee explaining the details of received services provided by its AE. In view of the above, this issue requires fresh examination at the end of AO/TPO.
TP adjustment made in respect of import of men’s wear from its AE - Selection of MAM - RPM or TNMM - AR submitted that the assessee imports men’s wear from its AE and distributes the same as it is without making any value addition - HELD THAT:- The assessee is the distributor of men’s wear imported from its AE. It does not carry out any value addition. Though the assessee is alleged to have incurred huge expenses on advertisement and market promotion, the same would not increase the inherent value of the products. In the case of simple distribution of products, it has been consistently held in the above said case laws that the “Resale Price method” (RPM) is the most appropriate method. Under the RPM, the profits are compared at Gross Margin level, in which case, the expenses incurred on Advertisement and Marketing should not be deducted while arriving at the Gross profit margin. Hence the TNMM method adopted by the assessee as well as the TPO is not appropriate method. Since the T.P study requires to be carried out afresh by adopting “RPM”, we set aside the order passed by the AO on this issue and restore the same to his file for examining this issue afresh.
Appeal of the assessee is treated as allowed for statistical purposes
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2019 (3) TMI 1695
Murder - Imposition of death sentence - cause of death of all the deceased was asphyxia due to strangulation and the deaths were homicidal in nature - Child witness - burden to prove - HELD THAT:- One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt - It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.
The case of the prosecution is mainly dependent on the testimony of Chandni, the child witness, who was examined as PW-8. Section 118 of the Evidence Act governs competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one - This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law.
The cash has not been traced back to the deceased as the box from which articles were allegedly stolen has not been recovered or seen by any witness. Even in the FIR, there is no averment of any article or money being stolen or lost. Therefore, when the money allegedly recovered is being sought to be relied upon as stolen from the house of the deceased, the same is unreliable when there is nothing on record to support the claim of theft or robbery from the scene of crime - The forensic evidence against the appellants to prove their presence at the scene of crime is insufficient. The findings of the hair analysis are also inconclusive. The report only concluded the specimen to the human hair. The same is not sufficient to substantiate the presence of the appellants.
There is a substantial loss of time from when PW-8 saw the deceased and the appellants together on 16.12.2012 and when the deceased were found on 17.12.2012. In such circumstances, it is difficult to draw an inference that the appellants had committed the crime - appeal allowed - appellants/accused are hereby acquitted for the offences for which they were tried and they shall be released forthwith, unless required in any other case/cases.
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2019 (3) TMI 1694
Interest on the delayed refund of central excise duty - Section 11 BB of Central Excise Act, 1944 - HELD THAT:- Issue decided in the case of AMALGAMATED PLANTATIONS (P) LTD. VERSUS UNION OF INDIA [2013 (11) TMI 589 - GAUHATI HIGH COURT] where it was held that section 11B of the Central Excise Act, 1944 does not exclude claim of refund made in terms of the notification dated 08-07-1999. Petitioners would, therefore, be entitled to interest under section 11BB of the Central Excise Act, 1944 on the excise duty refunded to them.
The petitioner would be entitled to interest under Section 11BB of the Central Excise Act, 1944 on the excise duty refunded to it belatedly. Respondent No.3 shall now determine the interest amount payable to the petitioner for the relevant periods where after the same shall be released to the petitioner within a period of 3 months from today.
Petition allowed - decided in favor of petitioner.
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2019 (3) TMI 1693
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment - On the ground that huge amounts are outstanding, it is claimed that the respondent corporate debtor has become commercially insolvent and accordingly it is prayed for initiation of corporate insolvency resolution process against the respondent company by admitting the present application - HELD THAT:- The procedure in relation to the Initiation of Corporate Insolvency Resolution Process by the "Financial Creditor" is delineated under Section 7 of the Code, wherein only "Financial Creditor" / "Financial Creditors" can file an application. As per Section 7 (I) of the Code an application could be maintained by a Financial Creditor either by itself or jointly with other Financial Creditors - The expressions "Financial Creditor" and "Financial debt" have been defined in Section 5 (7) and 5 (8) of the Code and precisely "Financial debt" is a debt along with interest, if any, which is disbursed against the consideration for time value of money.
In the present case PNB had sanctioned and disbursed the loan amount recoverable with applicable interest by entering into loan agreements with the corporate debtor. The corporate debtor had borrowed the credit facility against payment of interest as agreed between the parties. The loan was disbursed against the consideration for time value of money with a clear commercial effect of borrowing. Moreover, the debt claimed in the present application includes both the component of outstanding principal and interest. In that view of the matter not only the present claim comes within the purview of 'Financial Debt' but also the applicant bank can clearly be termed as 'Financial Creditor' so as to prefer the present application under Section 7 of the Code.
It is pertinent to mention here that the Code requires the adjudicating authority to only ascertain and record satisfaction in a summary adjudication as to the occurrence of default before admitting the application. The material on record clearly goes to show that respondent had availed the loan facilities and has committed default in repayment of the outstanding loan amount - In the facts it is seen that the applicant bank clearly comes within the definition of Financial Creditor. The material placed on record further confirms that applicant financial creditor had disbursed various loan facilities to the respondent corporate debtor and the respondent has availed the loan and committed default in repayment of the financial debt. On a bare perusal of Form - I filed under Section 7 of the Code read with Rule 4 of the Rules shows that the form is complete and there is no infirmity in the same. It is also seen that there is no disciplinary proceeding pending against the proposed IRP.
The present application is admitted - moratorium declared.
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2019 (3) TMI 1692
Other grounds based on the question of limitation - Constitutional validity of Section 174 of the Kerala State Goods and Services Tax Act, 2017 - time limitation stipulated under Section 19 of the 101th Amendment of the Constitution - HELD THAT:- The petitioner had also raised various other grounds based on the question of limitation. Therefore it is evident that the writ petition was disposed of without considering those contentions on merits. Therefore it is appropriate to have a remand of the matter to the Single Bench for considering those grounds.
The impugned judgment is hereby set aside - The writ petition is restored on to the file of this court.
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2019 (3) TMI 1691
Prayer for direction to the IRP/RP to consider and admit its claim by including it in the list of the Operation Creditor of the Corporate Debtor - rejection of prayer on the ground that the claim has been filed belatedly - HELD THAT:- It is true that the regulation 12(2) after amendment has granted liberty to a creditor who has failed to submit the claim with the proof within the time stipulated in the public announcement and such a claimant could submit the claim with proof to the IRP/ RP on or before 90th day of Insolvency commencement date. The aforesaid time obviously has expired as the CIR Process and in the present matter was commenced on 16.03.2018 and the claim were initially invited by fixing the last date as 30.03.2018.
It is no where stated as to how the claims which are to be filed alone are to be collated in terms of Section 21. First of all, as a matter of fact as the first step the IRP/RP has to prepare the list in accordance with the books of accounts and then invite the claims otherwise the dues reflected in the books of accounts would be rendered completely meaningless - It is only in case there is any discrepancy in the books of accounts that the claim needs to be modified or additions are required to be made.
The IRP/RP are directed to collate the claim of the Central Board of Goods and Service Tax the needful shall be done within three days - application allowed.
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2019 (3) TMI 1690
Direction to the Tahsildar, Tirupati Rural for implementation of the patta granted to him - Grant of ryotwari patta - execution of the “takeed” - According to the appellants, as per the ‘takeed’ granting permanent patta to late Sarvepalli Pottaiah, the land being the subject matter of the ‘takeed’ was “Punja Manavari Garikala Mitta Chenu” that is agricultural dry land. The respondents have disputed the execution of the “takeed” - HELD THAT:- The documents produced by the petitioner upon which evidence sought for implementation are non-existing one in the official records and the land claimed by the petitioner in S.No.234 of Tiruchanur Village of Tirupathi Rural Mandal is not available. Hence, question of implementation of the ryotwari pattas said to be granted on fictitious records does not arise.
The Single Bench rightly refused to entertain the writ petition as the Collector had questioned the genuineness of the purported ryotwari pattas on the ground that there were no entries with regard to the pattas in the relevant register. The grant of Saswatha Patta and execution of the takeed by the Mahanth of the Mutt in 1940 were also disputed.
There were serious allegations of illegal grant of pattas against the Inams Deputy Tehsildar who had purportedly issued the two ryotwari pattas. Moreover, the pattas had purportedly been issued without any notice of enquiry in the prescribed form, as required under Section 7 of the 1956 Act read with the Andhra Pradesh (Andhra Area) Inam (Abolition and Conversion into Ryotwari) Rules 1957 framed under Section 17 of the 1956 Act. Moreover, the entire Survey No.234 had been declared Tank poramboke and brought under Section 2A and, therefore, inalienable - Administrative decisions are subject to judicial review under Article 226 of the Constitution, only on grounds of perversity, patent illegality, irrationality, want of power to take the decision and procedural irregularity. Except on these grounds administrative decisions are not interfered with, in exercise of the extra ordinary power of judicial review.
The decision of the Collector was based on materials and thus not liable to be interfered with. The High Court very rightly did not interfere with the decision. It was not for the High Court, exercising its extra ordinary power of judicial review, to reanalyse the evidence on record and adjudicate the disputed question of whether the Mahanth of the Mutt had at all granted Saswatha Patta to the predecessors in interest of the appellants, whether the takeed was duly executed by the Mahanth, whether the ryotwari pattas were genuine or otherwise valid or not. Nor was it for the High Court to adjudicate the disputed fact of whether the land in question was in fact a water body or the dried bed of a water body. Cultivation is often carried out on the dried bed of water bodies. That does not denude the land of its character as a water body - The High Court rightly based its decision on the declaration of the entire survey area as water body and held, in effect, that the plots in question had vested in the government free from all encumbrances under Section 2-A of the 1956 Act. The respondents could not, therefore, be compelled to grant ryotwari pattas in respect of the said plots.
Appeal dismissed.
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2019 (3) TMI 1689
Allowability of interest paid on borrowed funds for the purpose of acquisition of capital asset as part of acquisition - HELD THAT:- CIT(A) while deciding the issue in favour of the assessee has noted the fact that the amount was borrowed for the purpose of acquisition of property, the interest on bank loan was debited to the asset account and assessee had not claimed the deduction of interest in respect of the respective years under any head of income. We find that Ld.CIT(A) after considering the various decisions namely, CIT Vs. Mithilesh Kumari [1973 (2) TMI 11 - DELHI HIGH COURT] , ACIT Vs. K.S.Gupta [1976 (8) TMI 9 - ANDHRA PRADESH HIGH COURT] and other decisions cited in his order has decided the issue in favour of the assessee. Before us, Revenue has not pointed out any contrary binding decision in its support nor has pointed out any fallacy in the findings of Ld.CIT(A). In view of these facts, we find no reason to interfere with the order of Ld.CIT(A) and thus the grounds of the Revenue are dismissed.
Set off of long term capital loss on sale of shares of listed companies against long term capital gains on sale of shares of unlisted companies - HELD THAT:- Hon’ble Calcutta High Court in the case of Royal Calcutta Turf Club [1982 (6) TMI 21 - CALCUTTA HIGH COURT] has held that long term capital loss on sale of shares would be allowed to be set off against the long term capital loss on sale of land in accordance with Sec.70(3) of the Act. We thus find that the issue in the present ground is similar to the issue before the Mumbai ITAT in the case of Raptakos Brett & Co., Ltd. [2015 (6) TMI 529 - ITAT MUMBAI] .
We therefore hold that assessee is entitled to set off of the loss of long term capital gains from the shares on which security transaction is paid or payable against the long term capital gains earned from shares on which no security transaction is paid / payable. We thus hold accordingly. Thus, the ground of assessee is allowed.
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2019 (3) TMI 1688
Maintainability of application - initiation of CIRP - constitutional validity of section 231 of the Insolvency and Bankruptcy Code, 2006 - Petitioner submitted that under the first part of section 231 of the IB Code, no civil Court shall have jurisdiction in respect of any matter in which the adjudicating authority is empowered by, or under, this IB Code to pass any order - whether exceptional case is made out warranting interference under Article 226 of the Constitution of India instead of relegating the petitioner to efficacious alternative remedy?
HELD THAT:- It is well recognized and fundamental judicial procedure that if the judgment has to be pronounced by any one of the two or more judges, who heard the case, it will be pronounced only after the transcript of the judgment has/have been initialed by all the judges who have heard the case. Thus prima facie one page corrigendum issued upon pointing out the gross illegality would not cure the non-est purported judgment/ order dated 28th August, 2018. The manner in which the matter has been dealt by the adjudicating authority would shock the conscience of the Court. The High Court is required to exercise its extraordinary jurisdiction under Article 226 of the Constitution so as to prevent miscarriage of justice and/or to correct and/or to meet out justice.
There are merit in the contention of the petitioner that winding up petition filed by the respondent only on 21st October, 2016 was time barred as it was filed after more than 3 years from the date of cause of action as claimed by the respondent No.2 in a suit filed earlier - We, however, prima facie find that such winding-up petition which itself was time barred and hence, non-est will not revive merely because it is transferred to the adjudicating authority.
The petitioner has made out a case for admission - issue raised in the petition requires detailed consideration - Petition admitted.
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2019 (3) TMI 1687
Disallowance of CSR expenses - allowable expenditure u/s 37(1) - HELD THAT:- I.T.A.T. holding the CSR expenses to be in the nature of business expenses and Explanation-2 to section 37 of the Act as being prospective in nature and the Ld. DR not having brought our notice any divergent view of the I.T.A.T., nor any distinguishing facts, the decision rendered in the above two cases will squarely apply to the present case also, following which we hold that the CSR expenditure incurred by the assessee amounting to ₹ 16,03,01,431/- were allowable for the impugned year. The disallowance so made is therefore directed to be deleted.
Taxability of interest of income tax refund u/s 244A - HELD THAT:- Contention of the appellant that the tax on income is a pass through item and hence interest received by him u/s 244A of the Income Tax Act is not his income cannot be accepted. The act of the A.O. is upheld and this ground of the appeal is dismissed.
Determining Minimum Alternate Tax (MAT)payable as per the provisions of section 115JB - HELD THAT:- Admittedly the addition, of interest on income tax refund of ₹ 2.16 crores received by the assessee, to the Book Profits of the assessee for the purposes of MAT u/s 115JB of the Act, has been made on consideration of the factual matrix that the same was not included in it. This fact has been demonstrated by assessee as being incorrect, which has not been controverted by the Revenue. Further even we have noted that interest on income tax refund received by the assessee was reflected as other income in its Profit and Loss account as part of Schedule 2.22, in para 14 above. We hold, that the addition to the Book Profits of the assessee of the Income Tax Refund was wrongly made and direct deletion of the same. The order of the Ld.CIT(A) in this regard is therefore set aside.
Allowance of deduction u/s 80IA on scrap sales - AO denied the claim of deduction u/s 80IA on the said income by holding that the income was not derived from the manufacturing activity of the Industrial undertaking - CIT(A) allowed the claim on finding that the assessee had clearly brought out the nature of scrap generated and the linkages to the manufacturing activity - HELD THAT:- The fact the scrap sold related to unserviceable/damaged spares retrieved from the plant is not disputed. That the cost of new spares replaced in place of the damaged spares was being charged fully to the Profit and Loss account has also not been controverted by the Revenue. The scrap sold therefore, we agree with the Ld.CIT(A) resulted in reduction in the cost of new spares purchased, and thus higher manufacturing profits to the assessee. And merely because the scrap sale was shown separately, it did not tantamount to a new source of income. The real and ultimate impact of the scrap sold was reduction in cost of spares purchased during the year. Therefore, we agree with the CIT(A) that the profits commensurate with the scrap sold was directly earned from the manufacturing activity of the assessee and the assessee was entitled to claim deduction u/s 80IA of the Act on the same.
Disallowance of deduction u/s 80IA on sundry creditors written back and insurance claim received from repairs - A.O. had disallowed the said claim holding that the income was not derived from the manufacturing activity of the industrial undertaking - HELD THAT:- We restore the issue of claim of deduction u/s 80IA of the Act on sundry creditors written back and insurance claim received ,back to the A.O to adjudicate the same in accordance with the direction given by the ITAT in the case of the assessee in A.Y 2008-09.
Addition of interest received from bank and interest from employees to the book profit of the assessee for the purpose of Minimum Alternate tax (MAT) as per the provisions of section 115JB - HELD THAT:- Since it is an admitted fact that the impugned incomes were disclosed in the Profit & Loss Account, it is but obvious they form part of the book profit of the assessee also. The addition made by the A.O., therefore, is nothing but a double addition and the same is, therefore, directed to be deleted. Ground No.III raised by the assessee is allowed.
Eligible for deduction u/s 80IA - HELD THAT:- The factual findings of the Ld.CIT(A) that both the recoveries were received on account of damages/expenses incurred by the assessee on its projects,which had been debited to the profit and loss account of the assessee,has not been controverted by the Revenue. We therefore find no infirmity in the conclusion of the LD.CIT(A),based on these facts,that the recoveries were directly related with the running of projects /plants of the assessee and are therefore eligible for deduction u/s 80IA
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2019 (3) TMI 1686
Approval of Resolution plan - It is averred that as the Resolution Plan submitted by one of the Resolution Applicants viz., M/S Hero Fasion was not in line with the conditions stipulated under Section 30(2) of the I&B Code, 2016 and 38 (1) (IA) and 2 of the Regulations - HELD THAT:- From the plan approval date, all inquiries, investigation and proceedings, whether civil or criminal, suits, claims, disputes, interests and damages in connection with the Corporate Debtor or the affairs of the Corporate Debtor, pending or threatened, present or future in relation to any period prior to the plan approval date, or arising on account of implementation of this resolution plan shall stand withdrawn, satisfied and discharged. From the date of approval of the 'Resolution Plan', the Resolution Applicant shall be legally authorised to seek appropriate orders from respective authorities/ courts/ tribunals for renewal of licences/withdrawal/dismissal or abatement of the proceeding as the case may be.
The Corporate Debtor shall be entitled to carry forward all accumulated business losses and unabsorbed depreciation, if any. From the date of approval of the Resolution Plan, except as provided in the Resolution Plan, all the pending statutory dues including taxes/cess/interest/penalty and other liabilities due to the operational creditors shall stand satisfied/ waived off - The reason for these waivers and abatement is that the Operational Creditors would not get more than that as provided in the Resolution Plan, in the event of liquidation of the Corporate Debtor, as per the waterfall mechanism provided under Section 53 of the I&B Code, 2016.
Thus, the 'Resolution Plan' filed with the Application meets the requirements of Section 30(2) of I&B Code, 2016 and Regulations 37, 38, 38(1A) and 39 (4) of IBBI (CIRP) Regulations, 2016. The 'Resolution Plan' is also not in contravention of any of the provisions of Section 29A - Resolution plan is hereby approved, which shall be binding on the Corporate Debtor and its employees, members, creditors, guarantors and other stakeholders involved in the Resolution Plan including Resolution Applicant.
Moratorium rejected - approved 'Resolution Plan' shall become effective from the date of passing of this Order.
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2019 (3) TMI 1685
Non-appearance by the assessee on the date of hearing - HELD THAT:- Assessee do not have a regular Chartered Accountant or Advocate for giving advice to them. Further, it is also stated that the non-appearance before the Tribunal was not intentional or deliberate. He also mentioned that notice issued by the Tribunal regarding the date of hearing was not communicated to the assessee .
There was sufficient reason for non-appearance by the assessees on the date of hearing before me. I find force in the Miscellaneous Applications since the appeals have been dismissed in limine, admittedly due to non-appearance of the assessees. Therefore, appeals under consideration should be recalled for fresh hearing. The Registry is directed to fix both the appeals for hearing in due course after issuing the notice of hearing to the parties accordingly. The assessee are directed not to seek frivolous adjournment and adopt all reasonable steps to get the appeals finalized at an early date.
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2019 (3) TMI 1684
Maintainability of application - initiation of CIRP - Corporate Debtor committed default in paying financial debt - existence of debt and dispute or not - defence raised is that the High Court admitted the Petition of winding up of the Corporate Detor filed by one of its other creditors - Section 7 of Insolvency and Bankruptcy Code - HELD THAT:- The proceeding under Section 7, 9 or 10 of Insolvency and Bankruptcy Code is maintainable and can be proceeded with irrespective of the fact that winding up petition of the Corporate Debtor is admitted by that High Court. The proceeding under Insolvency and Bankruptcy Code will not be maintainable only if order of winding up of the Company is passed by Hon'ble High Court.
In this case, Hon'ble High Court admitted the Petition for winding up of the Corporate Debtor. No doubt Provisional Liquidator is also appointed but final order of winding up has not been passed and Official Liquidator has not been appointed - It is settled law as declared by the Apex Court that the proceeding under I & B Code will not be maintainable only if final order of winding up is passed by the High Court - this application filed by Financial Creditor under Section 7 of Insolvency and Bankruptcy Code is maintainable.
Application admitted - moratorium declared.
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2019 (3) TMI 1683
Classification of service - Business Auxiliary Service or not - business of Freight Forwarders as a None Vessel Owning Carrier Company - HELD THAT:- It is an admitted fact on record that the appeal filed by the said appellant has already been disposed of by the Tribunal vide final order dated 30.09.2015, holding that the services should not be exigible to tax under the category of business auxiliary service. It is noticed that the said final order of the Tribunal was not available at the time of disposal of the appeal by the Learned Commissioner (Appeals).
The matter should be remanded to the Learned Commissioner (Appeals) for examination of the final order passed by the Tribunal and to decide its applicability to the facts of the present case - appeal is allowed by way of remand to the Learned Commissioner (Appeals) for deciding the issue afresh.
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2019 (3) TMI 1682
Levy of penalty u/s. 271B - assessee had failed to get the accounts audited u/s. 44AB - CIT(A) confirmed penalty levied by the AO by observing that the assessee was liable to get his accounts audited as per the provisions of the section 44AB and failure to comply with the provisions of section 44AB of the Act would attract penalty under section 271B - HELD THAT:- Assessee has committed only technical venial breach which does not create any loss to the exchequer. The audit report was filed before the Assessing Officer before the completion of the assessment. The ill health of the partner Shri Naushad S and the malfunctioning of the computer due to hardware damage are reasonable causes for not furnishing the audit report before the AO within the stipulated time. Hence, we are inclined to hold that this is not a fit case for levying penalty u/s. 271B. - Appeal of the assessee is allowed.
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2019 (3) TMI 1681
Rectification of an mistake apparent - HELD THAT:- The serious prejudice is caused to the assessee as its appeal stood dismissed in the absence of representation from its counsel. Principles of Natural Justice demands in the instant MA before us that an order [2019 (2) TMI 1342 - ITAT MUMBAI ] passed by ITAT, “G” Bench, Mumbai be recalled and one more opportunity be granted to the assessee which will sub-serve interest of substantial justice, wherein at best the assessee will plead his case on merits in accordance with law. Thus, based on facts and circumstances of the case, we are of the considered view that interest of substantial justice will be best served in the instant case, if an order dated 22.10.2018 passed by tribunal is recalled and we hereby order recall of the order above. The Registry is directed to fix this appeal before regular bench in due course. The Registry will accordingly issue notice to both the parties intimating date of hearing in assessee”s appeal.
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2019 (3) TMI 1680
Eligibility of deduction u/s 80IB(10) - ITAT allowed the claim - as per revenue assessee has not completed the project due to failure attributable to assessee itself within stipulated time prescribed u/s. 80IB(10) - HELD THAT:- Parties brought to our notice an order [2018 (12) TMI 1719 - BOMBAY HIGH COURT] in which these very questions in relation to this assessee came up for consideration. The Court by speaking order dismissed the Revenue's appeal. Hence, without recording separate reasons, this appeal is also dismissed.
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