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Showing 381 to 400 of 2364 Records
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2018 (7) TMI 1986
Unexplained investment in immovable property - addition only on the basis of surrender made by the assessee during the course of survey though there was an agreement found during the survey action - HELD THAT:- As per the agreement found only ₹ 1,00,000/- was found to be paid by the son of the assessee as an advance for purchase of the plot of land and, therefore, to that extent the addition can be made if assessee has not surrendered the amount. Since the assessee has already surrendered the amount of ₹ 1,00,000/-, therefore no further addition can be made on account of investment in the land when the said agreement found during the course of survey was not given effect by the parties and the plot of land was sold by the owner to some third party vide sale deed dated 18th May, 2012.
Hence, when the facts were brought on record by the assessee regarding the sale of plot of land to the third party, then the statement recorded under section 133A which is contrary to the actual facts, cannot be a basis of addition. Accordingly, in the facts and circumstances of the case, the addition made by the AO is not sustainable in law and the same is deleted. - Decided in favour of assessee.
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2018 (7) TMI 1985
Oppression and Mis-management - Section 241 & 242 of the Companies Act, 2013 - whether the FCA is binding on the company and the other shareholders or not? - HELD THAT:- The company could not have been made a party to the FCA as it is a pre-incorporation contract. Anyhow, the name of the company has been mentioned in the said FCA referring to the quorum in Sections 1 & 5. It is a fact that all the shareholders of the company are the signatories to the said FCA and the Section 111 deals with shares to be allotted in the company. It is a fact that the signatories to the FCA are the shareholders and the directors of the company and everyone is liable to take action to incorporate the FCA in the Articles of Association - Since the name of the company is mentioned in the FCA and all the signatories are shareholders and even the shareholding of the company is fixed in the FCA, it is in our considered view, the FCA is binding on the company. The first issue is answered in favour of the Petitioner.
Whether the removal of the Petitioner from the post Of Managing Director and Director is valid or not? - HELD THAT:- The removal of the Petitioner from the post of office of the Director has not been done in consonance with the provisions Of the Companies Act and, therefore, it is held that the removal of the Petitioner as a Director is not valid.
Whether the Petitioner is entitled to get 25% of share in the company or not? - HELD THAT:- As per the FCA also, as seen in the pattern of shareholding of the company, only 10% was fixed and decided to be allotted to the Petitioner. There is no evidence that the Petitioner is entitled to get 15% of the shares from R2. Therefore, the claim of the Petitioner for 25% of the shares in the company should fail and this issue is answered in negative to the petitioner.
Whether the Petitioner besides his terminal benefits and salary is entitled for exemplary costs or not? - HELD THAT:- In terms of Section 202(3) of the Companies Act, upon removal, the Managing Director of a company would be entitled to receive remuneration which he would have earned if had been in office for the remainder of his term or for three years, whichever is shorter. Accordingly, we deem it fit to order a compensation of ₹ 105 lakhs (calculated at the rate of ₹ 35 lakhs p.a. for three years) together with interest @ 10% from the date of removal of the petitioner from the Office of Managing Director, plus other benefits as already offered, till the date of payment to the Petitioner by the RI company/other respondents.
Since the petitioner has expressed his intention to exit from the Company, which has been agreed to by the Respondents, the Respondents shall purchase the shares of the petitioner at mutually agreed rates by both the parties.
Petition disposed off.
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2018 (7) TMI 1984
Miscellaneous application including Appointment of Resolution Professional etc - HELD THAT:- It is worth to mention few points that on appointment of Resolution Professional certain steps have been taken by him as prescribed under I&B Code, such as Advertisement in the Newspaper, Constitution of Committee of Creditors and representation before NCLT Bench time to time, action against the Debtors of the Company, etc. For those efforts he is entitled for a reasonable Fees, as also accepted by the Learned Counsel of Committee of Creditors and Learned Counsel of Respondent No.2. As far as the question of submission of this Application beyond 270 days by Committee of Creditors, this hurdle can be removed by taking shelter of an Order of Hon'ble NCLAT.
This Miscellaneous Application is disposed off.
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2018 (7) TMI 1983
Initiation of the corporate insolvency resolution process (CIRP) - territorial jurisdiction of this Bench of the Tribunal - Section 7 (5) (a) of the Insolvency and Bankruptcy Code - whether the petitioner is a financial creditor of the respondent?
HELD THAT:- There is no condition stipulated in section 5 of SARFAESI Act 2002 that an asset reconstruction company has to acquire only NPAs of banks or financial institutions. It is concluded that the nature of the financial asset transferred i.e. whether it is NPA or not is not such a material condition so as to make the agreement invalid. We may add here that as per para 2.1 (a) of the assignment deed dated 21.03.2012, (page 237 of the petition) it is stated that the agreement to assign is in consideration of the assignee having deposited the purchase consideration in the Escrow Account and therefore, the assignment is for valuable consideration received. Further, as para 3.1 of the assignment deed dated 21.03.2012, HSBC has represented and warranted to the petitioner that as on the date of the deed and with reference to the facts and circumstances then existing, the loans are non performing assets and have been duly and validily classified as such, in accordance with the guidelines issued by RBI in this regard and all applicable law.
The breach of representation regarding the loan being non performing asset is a matter between the petitioner and HSBC - In the present case, the respondent cannot seek to take benefit of whether the assigned debt is a NPA and the matter lies between the petitioner and HSBC.
The petition is, therefore, admitted under Section 7(5) (a) of the Code and the moratorium is declared for prohibiting all of the following in terms of sub-section (1) of Section 14 of the Code.
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2018 (7) TMI 1982
TDS u/s 195 - payments of commission to non-resident agents who procured orders from parties situated outside India - case selected for scrutiny under CASS - main objection of the Assessing Officer while disallowing the impugned payment was that the foreign commission agents were allegedly rendering services to the assessee which were beyond the scope and definition of marketing agents - CIT-A deleted the addition - HELD THAT:- The commission received by the non-resident company for procuring product and rendering incidental services for purchases to the resident company was not taxable in India as ‘fees for technical services’. See ADIDAS SOURCING LTD. [2013 (1) TMI 106 - ITAT DELHI] . Whenever payments are made on account of commission for procuring sales orders, tax was not required to be deducted at source
Assessing Officer was unable to bring any cogent material on record to establish that the non-resident commission agents had rendered any technical, consultancy or managerial services, are unable to take a view contrary to that of the Ld. CIT (A) who has given a categorical finding to this effect. We also note that the assessee had been making similar payments in earlier as well as subsequent assessment years which were accepted by the department in assessment orders framed u/s 143(3) of the Act and no adverse inference had been drawn by the department in this regard. Accordingly, we find no reason to interfere with the findings of the Ld. CIT (A) in this regard and we dismiss the grounds raised by the department.
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2018 (7) TMI 1981
Application of section 33AB(7) - Tea development account - HELD THAT:- As submitted before us that the Revenue had preferred an appeal in relation to the assessment order for the assessment year 2003-04. These appeals would have direct impact on the present appeal which the Revenue wants us to admit. But Mr. Dutta, learned counsel, could not apprise us about the particulars of such appeal and in course of hearing today he submitted that his clients are also not in a position as yet to give him instruction in that regard. We accordingly adjourn hearing of this appeal till 6th August, 2018. By that date the particulars of such appeals should be disclosed to us by the Revenue.
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2018 (7) TMI 1980
Mr. Aditya Singla, Sr. Standing Counsel, Mr. Satish Aggarwala, Sr. Standing Counsel, Mr. Sanjeev Narula, SSC and Mr. Amit Mahajan, CGSC accept notice for DRI, Customs and Union of India respectively.
Till the next date of hearing, no adjudication order shall be made.
List on 17.09.2018.
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2018 (7) TMI 1979
Prevention of Money Laundering Act, 2005 applicability to cases where the scheduled offences have been committed prior to the enactment - HELD THAT:- Issue notice.
Respondents accepts notice and seeks time to file a reply. In the meantime, the proceedings before the Adjudicating Authority may continue. However, orders, if any, shall not be implemented. It is clarified that the provisional attachment shall continue to be operative.
List on 05.02.2019.
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2018 (7) TMI 1978
Cancellation of substantive assessment - protective assessment against FACT was sustained - taxability of salary / income at the hands of the foreign technicians - income from other source - HELD THAT:- On the interest income obtained on such refund being made by the Department, a substantive assessment was made on the foreign technicians and a protective assessment on FACT. In first appeal, the protective assessment against FACT was sustained, but the substantive assessment made against the foreign technicians were set aside. The revenue, very strangely filed an appeal from the protective assessments being sustained. No appeal was filed from the order cancelling the substantive assessments.
What is to be noticed in the present case is that the protective assessment as against the FACT survives even now and the demand could be made against the said assessee. In such circumstances, there could be found no stakes involved in the appeal before the Tribunal, since the revenue could have as well satisfied the demand from the assessee Company. In such circumstances, we do not think any question of law arises from the order of the Tribunal and hence we reject the appeals.
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2018 (7) TMI 1977
Whether the assessee, M.G. Road Branch of the Indian Bank, was obliged to record, the gold imported from abroad on a bill of lading in its name, in its accounts? - HELD THAT:- The clear admission of the Bank before the Assessing Officer indicates a suppression having been carried out by the Bank. The accounts of the Branch did not record the import. We are in fact surprised that such an exercise was carried out by a Nationalised Bank. In any event, we do not think that the Tribunal was correct in having deleted the addition for reason of absence of reasons in the Assessing Authority's order; which we find to be amply available.
The Assessing Authority has been indulgent in so far as not making any addition for probable omissions and suppression. In the context of our finding, we do not think that there is any warrant for a remand to the First Appellate Authority. We find the order of the First Appellate Authority though non-speaking quite appropriate on the facts and circumstances as explained herein above.
The Tribunal had acted perversely in so far as deleting the addition when a clear suppression is found on the admission of the assessee itself. The assessee has failed to comply with the provisions of the KVAT Act and failed to account its import of gold, which admittedly was subsequently sold - Revision allowed.
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2018 (7) TMI 1976
Status of BCCI as a ‘company’ - Application of Section 42 of the Foreign Exchange Management Act for the alleged violations during the conduct of IPL-2 in South Africa - whether BCCI is a society registered under the provisions of the Tamil Nadu Societies Registration Act, 1975 and as such it is an unincorporated body of associations not falling under the definition of 'company' used in Section 42 of the Foreign Exchange Management Act and that it does not extend to all persons covered by the definition of the 'person' used by Section 2(u) of the Foreign Exchange Management Act? - invocation of the vicarious liability clause framed against the noticees under Section 42(1) and (2) - HELD THAT:- As the issue raised in the present writ petition is no longer res integra, as it has been already settled by the Division Bench of the Bombay High Court in Shashank Vyankatesah Manohar v. Union of India and another [2013 (8) TMI 435 - BOMBAY HIGH COURT] holding that the definition of 'person' in Section 2(u) of the Foreign Exchange Management Act, 1999 is inclusive one and therefore the BCCI as well as the Governing Council of IPL are the persons within the definition of Section 2(u) of the Act, which judgment has also been confirmed by the Supreme Court, the petitioner, who was the Secretary of BCCI during the relevant period, cannot once again agitate the same issue before this Court. Therefore, this Court, being bound by the judgments, finding no merits whatsoever in the writ petition, is not inclined to interfere with the impugned proceedings. Accordingly, this writ petition stands dismissed.
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2018 (7) TMI 1975
Allowance of Special Rebate - Section 12 of the Kerala Value Added Tax Act, 2003 - omission and suppression or not - HELD THAT:- Here, the assessee though had treated the wood, had sent the goods to its own unit at Chennai without any tax effect in the interstate transaction. This would disentitle the assessee from the special rebate under Section 12 of the Act of 2003. Whether the assessee in fact carried out any manufacture would not be a relevant consideration.
Decided against assessee - revision allowed.
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2018 (7) TMI 1974
Levy of Entry Tax - machines and part thereof imported from outside the country - HELD THAT:- The items imported by assessee are taxable, since covered by item 2 of the schedule of Act, 2007 - decided against assessee - revision petition dismissed.
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2018 (7) TMI 1973
Short deduction of tds - TDS u/s 194J or 194C - payments made to field agents - disallowance u/s 40(a)(ia) - whether payments were made for conducting market research survey and on data analysis/tabulation, thus falling under section 194J of the Act and warranting deduction of tax at 10%? - HELD THAT:- As decided in assessee's own case [2016 (7) TMI 1394 - ITAT MUMBAI] provisions of Sec. 40(a)(ia) have no application when there is short deduction of tax - Decided against revenue
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2018 (7) TMI 1972
TP Adjustment - comparable selection - functional dissimilarity - HELD THAT:- As far as exclusion of 3 companies viz., Bharath Electronics Ltd [BEL]., MIC Electronics Ltd. and Bharath Heavy Electricals Ltd. [BHEL] is concerned, it is clear from the order of DRP that the 3 companies were manufacturers of equipments, whereas the assessee was only manufacture of components which are used in making equipments. This functional difference has been rightly noticed by the DRP in excluding these 3 companies from the list of comparable companies.
Besides the above, it is also seen that BHEL is engaged in diverse activities of manufacture of power station equipments like boilers, turbines, etc. In terms of size, it is to be regarded as a very big company not comparable with that of assessee. No grounds to interfere with the order of DRP, consequently we dismiss the relevant grounds of appeal of the revenue in this regard.
Determining the PLI, depreciation should be regarded as part of operating cost - HELD THAT:- There is substantial variation in the manner of charging depreciation by the Assessee and the comparable companies. The question therefore is as to whether the profits to be compared should be ignoring the depreciation charge/expenditure. An identical issue was considered by this Tribunal in the case of Honeywell Technology Solutions Lab v. DCIT, [2013 (9) TMI 189 - ITAT BANGALORE] wherein relied case of 24/7 Customer.com (P.) Ltd. v. Dy. CIT [2013 (1) TMI 45 - ITAT BANGALORE] held that if there are differences in the method of charging depreciation between the Tested party and the comparable companies, then there would be impact on the operating profits and in such circumstances it is safe to consider PLI without considering depreciation as part of the operating cost.
The Tribunal in the case of BA Continuum India Pvt Limited v. ACIT [2014 (9) TMI 258 - ITAT HYDERABAD] took the view that depreciation had an impact on the profit margin of the assessee. The Assessing Officer was directed to use the profit level indicator as profit before depreciation, interest and taxes to recompute the arm’s length price.
It would be just and appropriate to set aside the order of DRP and the final order of assessment and direct the AO/TPO to consider the determination of PLI by considering the ratio of the decisions referred to above. Appeal by the revenue is treated as partly allowed for statistical purposes.
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2018 (7) TMI 1971
Classification of goods - Empty Har Gelatin Capsules - contention of the petitioner is that empty HPMC Capsule Shell are made of Hydroxy Propyl Methyl Cellulose and are used by Pharmaceutical Industries for filling medicines - Whether HPMC (Hydroxy Propyl Methyl Cellulose) Capsule Shells are taxable as per entry No.5 of Part-IV of Schedule-II of Madhya Pradesh VAT Act, 2002 and therefore, taxable @ 14%?
HELD THAT:- M erely because the capsules manufactured by the petitioner is being manufactured on account of inclusion of the same in the drug licence, it can never be said that its a drug. The learned Commissioner has observed that certain cosmetics are also manufactured under the drug licence and therefore, if the analogy given by the petitioner is accepted then all cosmetics will have to be included under the heading of drug.
This Court after hearing learned counsel for the parties, as it is not established that the capsule in question is exclusively used for the purpose of drugs only, is of the opinion that the learned Commissioner was justified by rejecting the prayer of the petitioner and the entries under the VAT Act as reflected in the schedule are very clear, once the capsule manufacture by the petitioner is not included under the category of drugs, it has to be charged under the residuary entry.
Petition dismissed.
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2018 (7) TMI 1970
Deduction u/s 36(1)(va) r.w.s 43B - Delay in depositing the employee's contribution to ESI/PF beyond the prescribed time limit provided - HELD THAT:- This issue is now covered by the decision of M/S. STATE BANK OF BIKANER & JAIPUR AND JAIPUR VIDYUT VITARAN NIGAM LTD. [2014 (5) TMI 222 - RAJASTHAN HIGH COURT], M/S. UDAIPUR DUGDH UTPADAK SAHAKARI SANGH LIMITED, UDAIPUR [2014 (8) TMI 677 - RAJASTHAN HIGH COURT] and JAIPUR VIDYUT VITRAN NIGAM LTD AND RAJASTHAN RAJYA VIDYUT UTPADAN NIGAM LTD [2014 (1) TMI 1085 - RAJASTHAN HIGH COURT] amount has been deposited on or before the due date of filing the return under Section 139 and admittedly it was deposited on or before the due date then the amount cannot be disallowed under Section 43B of the I.T. Act or under Section 36(1)(va) of the Act - Decided against Revenue.
Disallowance of deduction U/s 80IA - assessee did not file the audit report in Form No. 10CCB along with return of income U/s 139(1) - HELD THAT:- The assessee filed its revised return of income on 25.03.2013 along with the audit report in Form No. 10 CCB and claimed of deduction U/s 80IA of the Act. The revised return of income was within the period of limitation as provided U/s 139(5) and therefore, it was a valid revised return of income. Once, the assessee filed a valid revised return of income and complied with the conditions as stipulated U/s 80IA of the Act then, the claim of the assessee cannot be denied merely on the ground that the assessee has not claimed deduction in the original return of income and also not filed the tax report in Form No. 10CCB along with return of income filed U/s 139(1) of the Act. See M/S. RAJASTHAN FASTENERS PVT. LTD. [2014 (6) TMI 291 - RAJASTHAN HIGH COURT] - Decided against Revenue.
Disallowance of depreciation @ 80% on certain part of the windmill - AO has segregated some part of the windmill as civil work and other electric fitting and allowed the depreciation @ 10% and 15% respectively - HELD THAT:- The civil construction and electric fittings which are part and parcel of the windmill and have no other used then for the proper functioning of the windmill. Therefore, all the foundations and other fittings which are essential for the proper functioning of the windmill as an integral part of the windmill cannot be segregated from the windmill itself which is an apparatus comparing of all these essential civil structure and other electric fittings. Even otherwise without foundation and civil work the installation of windmill is not possible and therefore, these parts such as civil structure, electric fittings etc. which are essential for installation and functioning of the windmill would be considered as part and parcel of the windmill for the purpose of depreciation U/s 32. See M/S GANGAUR EXPORTS PVT LTD [2017 (5) TMI 1676 - RAJASTHAN HIGH COURT] - Decided against Revenue.
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2018 (7) TMI 1969
Application for Extension of CIRP Period - extension sought for a further period of 90 days - HELD THAT:- In view of the contents of the Application and the resolutions passed by the COC in its meeting on 19.06.2018, this Authority is satisfied that in the circumstances, the CIRP cannot be completed within 180 days and there is a requirement for extension of the period of time for CIRP - Accordingly, the period of time for CIRP is further extended for 90 days with effect from 13.07.2018 onwards with the direction to the Resolution Professional to expedite the Resolution Plan, if any, and get approved of the COC, if it wishes so and to file the Status Report on or before 27.08.2018.
Application disposed off.
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2018 (7) TMI 1968
Permission to serve notice by means of paper publication with wide circulation at the registered office of the Indiaontime Express Private Limited, Respondent/Corporate Debtor - HELD THAT:- Permission is granted to the Petitioner for paper publication as prayed for in "Indian Express" English Daily News paper and in "Vijaya Vani" Kannada Daily News paper.
Post the for hearing on 27/08/2018.
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2018 (7) TMI 1967
Title: Supreme Court of India dismisses special leave petition
Summary: The Supreme Court of India, with judges Mr. A.M. Khanwilkar and Dr. D.Y. Chandrachud, declined to interfere with the High Court's order. The special leave petition was dismissed, and any pending interlocutory application was also disposed of.
Citation: 2018 (7) TMI 1967 - SUPREME COURT OF INDIA
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