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Showing 461 to 480 of 1469 Records
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2021 (7) TMI 1010
Liquidation process - demand of tax dues - requirement to pay the tax dues prior to the date of sale of the unit - eligibility to issue enlistment certificate - applicability of municipality by section 118 of the West Bengal Municipal Act and Audit and Accounts Rules, 1999 - requirement ot follow duties under section 55 of the Transfer of Property Act, 1882 - overriding effect of IBC or not - HELD THAT:- The Insolvency and Bankruptcy Code, 2016 is a self contained legislation. In cases of liquidation, through chapter III read with the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, the Code provides for a procedure of public announcement calling upon the stakeholders to submit their claims with the liquidator, who then consolidates, verifies and adjudicates upon it - In the present case, the liquidator had made the public announcement on 23.10.2017, however, the Respondent Nos. 2 and 3 did not file their claim with the liquidator. The Respondents cannot by-pass the provisions of the Code and hold the grant of licence or enlistment certificate ransom subject to the payment of their dues.
Under section 238, the Code also envisages that the provisions of the Code will override other laws. Therefore, the Respondent's reliance on the provisions of the Transfer of Property Act, 1882, West Bengal Municipal Act, 1993 and Audit and Accounts Rules, 1999 is misplaced.
The Applicants are not liable to pay the tax dues prior to the date of sale of the said unit i.e. 08.10.2020. The demand notice dated 01.02.2021 is not sustainable in law. The Respondent Nos. 2 and 3 are hereby directed to consider the application for grant of License or Enlistment Certificate and application for mutation of the said unit on its merit without being affected by the dues pending - Application allowed.
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2021 (7) TMI 1009
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - account of the corporate debtor was classified as NPA - valid power of attorney or not - time limitation - HELD THAT:- This case was adjourned from time to time on the ground that the issue of whether entries made in balance sheets amount to an acknowledgement of debt under section 18 of the Limitation Act, 1963 was pending before the Hon'ble Supreme Court.
Valid power of attorney or not - HELD THAT:- The plea regarding no valid power of attorney is not valid, On perusal as per clauses no. 10, 11 and 12 of the power of attorney mentioned that the applicant is authorized to initiate and prosecute insolvency proceedings by and on behalf of the bank. From the date of authorization to the applicant bank has never revoked the Power of Attorney. Hence, the question that the application is not authorized to file the present application does not arise.
Time Limitation - HELD THAT:- The other plea regarding the petition is barred by limitation is also not valid, On perusal of balance sheet and auditor's report it is noted that the corporate debtor, has itself acknowledged its liabilities. The recent judgment passed by the Hon'ble Supreme Court in "Asset Reconstructions Company India Limited Versus Bishal Jaiswal" [2021 (4) TMI 753 - SUPREME COURT] held that the entries made in the balance sheet of corporate debtor amount to an acknowledgement of debt under section 18 of Limitation Act, 1963 and, would extend the period of limitation.
It is also noted that the amount is due and payable and more than the threshold limit as prescribed under section 4 of the IB Code. The default has occurred. The question of limitation is also not arisen as seen from the record it proves that the CD has already acknowledged the debt in its balance sheet and auditor's report. Hence, considering the facts and circumstances of the case, we hold that the application filed u/s. 7 deserves to be admitted - name of IRP has also been proposed which is mandatory as per the Provision of IB Code, 2016, whose consent is on record.
The petition is admitted - moratorium declared.
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2021 (7) TMI 1008
Seeking restoration of name of the Company in the Register of Companies maintained by the Registrar of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- The Company is doing its business as a going concern basis - Applicant further stated that the Company would file necessary Financial Statements and Annual Returns soon after restoration of the name of the Company with the Registrar of Companies, Hyderabad and prayed the Tribunal to revive this Company.
After hearing the Learned Counsel for Applicant and after perusal of material documents on record, the report of the RoC, Hyderabad and after going through the provisions of Section 252(3) of the Companies Act, 2013, this Tribunal is of the view that the Company was in existence and it is a going concern and name of the Company to be restored in the Register of Companies as maintained by RoC.
The Registrar of Companies, the Respondent herein, is ordered to restore the original status of the Company as if the name of the company has not been struck off from the Register of Companies and take all consequential actions like change of company's status from 'Strike off' to Active (for e-filing) and to intimate the bankers about restoration of the name of the company so as to defreeze its accounts.
The name is restored - application allowed.
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2021 (7) TMI 1007
Disallowance u/s. 14A - HELD THAT:- As categorically mentioned by the AO that there is no exempt income and by the assessee during the year. In absence of any exempt income the disallowance u/s.14A of the act cannot be made as has been held by the honorable Delhi High Court income in Cheminvest Ltd 2015 (9) TMI 238 - DELHI HIGH COURT - We direct the AO to delete the disallowance u/s. 14A.
Disallowance invoking the provisions of Section 40(a)(ia) - short deduction of tax or non-deduction of tax at source - tax deduction at source is deposited before the due date of filing of the return or not? - HELD THAT:- As given a correct direction if the tax deduction at source is deposited before the due date of filing of the return of income that no disallowance can be made. Otherwise, the disallowance is correctly made. We do not find any infirmity with such direction as it is purely a factual matter, which needs to be verified. Before us no evidences have been produced that the about tax has been deposited before the due date of filing of the returned by the assessee. Therefore we do not find any infirmity in the direction of the CIT - A.
With respect to the claim of the assessee that there is only a short deduction of tax and the disallowance can only be made for non-deduction of tax at source we find that issue squarely covered in favour of the assessee by the decision of the honourable Calcutta High Court in CIT v. SK Tekriwal 2012 (12) TMI 873 - CALCUTTA HIGH COURT However, it is a matter of investigation and verification that whether it is a short deduction of tax or non-deduction of tax at source. For this reason, we set aside the whole issue back to the file of the learned assessing officer with a direction to verify and if it is found that there is a shorter deduction of tax and not non-deduction of tax, the disallowance may be deleted. Accordingly, ground number 5 of the appeal is also allowed for statistical purposes.
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2021 (7) TMI 1006
Unexplained cash deposits in bank account - HELD THAT:- Firstly, in respect of availability of cash from the retail business, the assessee has shown a figure of ₹ 242,110 whereas the AO has computed an amount of ₹ 179,500/- in respect of which no specific contention has been raised before us and hence, the figure of ₹ 179,500/- as so computed by the AO needs to be considered as against figure of ₹ 242,110/-. In respect of drawings, the assessee has shown a figure of ₹ 119500/-, however, no basis has been specified as to how the assessee has determined the said figure where as the AO has returned a finding that given that assessee has salary and other business income, the household withdrawals can be considered as met out of salary income which has not been disputed by the assessee.
Drawings towards household withdrawals are taken at ₹ 144,000/- instead of ₹ 119500/- taken by the assessee. Similarly, in respect of cash flow statement in support of opening cash balance, drawing a similar analogy regarding household withdrawals, the drawings towards household withdrawals are taken at ₹ 108,000/- instead of ₹ 48,000/- for A.Y 2008-09 and ₹ 144,000/- instead of ₹ 66,770/- for A.Y 2009-10 and considering the same, the opening cash balance would come to ₹ 323,635/- instead of ₹ 423,740/- considered by the assessee. Taking the same into consideration, we find that total cash receipts comes to ₹ 34,03,035 and total deposits comes to ₹ 35,90,250/- reflecting a shortfall of ₹ 187,215/- which remain unexplained. Hence, the addition to the extent of ₹ 187,215/- are sustained and remaining addition is hereby directed to be deleted. Appeal of the assessee is partly allowed.
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2021 (7) TMI 1005
Addition u/s 69 on protective assessment - cash deposit was treated as unexplained investment in the hands of the assessee under the provisions of section 69 and therefore the same was added to the total income of the assessee on protective basis - HELD THAT:- There is no provision under the law for making the assessment on protective basis. It is well settled by the judicial precedent that in the interest of the revenue, the protective assessment can be framed. The circumstances arise for making the protective assessment in a situation where the revenue during the proceedings finds that a particular amount of income can be taxed in the hands of the different persons/assessee and the AO is not sure enough about such person in whose hands the income is chargeable to tax.
Where the legal ownership of the income is under suspicion, the AO can resort to make the addition in the hands of 2 persons or more than 2 persons on the basis of protective and substantive basis. But the demand of tax is not enforceable in the case of protective assessment until and unless it changes its shape by becoming substantive assessment.
The concept of protective assessment also becomes important in a situation where the addition on substantive basis is deleted and in such an event, protective assessment shall change its colour by becoming substantive assessment. Had there not been such protective assessment, then assessment with respect to such person (protective assessment) would have become barred by time.
The protective assessment framed by the AO without making the substantive assessment is not sustainable. Hence, the assessee succeeds on this technical ground. As the assessee has succeeded on the technical ground, we do not find any reason to adjudicate the issue raised by the assessee on merit. Hence the grounds raised by the assessee on merit are dismissed.
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2021 (7) TMI 1004
Initiation of Section 158BC proceedings - entries made in assessee’s regular books of account could be made - HELD THAT:- We notice in this factual backdrop that the foregoing issue is no more resjudicata. It is not in dispute that the impugned search had also covered the case of assessee’s family/member Shri Kuldip Singh Bagga. This tribunal’s coordinate bench’s earlier order dt.14-10-2011 for the very block period and search had held that the credits in issue cannot be gone into in block assessment proceedings as the same would only form subject matter of regular assessment proceedings.
Unexplained cash credit - HELD THAT:- Since the Assessing Officer’s remand report dt.02-05-2018 itself verified that assessee’s credits which are recorded in already maintained books of account which could form subject matter of regular and not block assessments as per hon'ble jurisdictional high court’s decision in the very group of cases - Revenue cannot be treated as an aggrieved party when the Assessing Officer’s remand report agrees with an assessee’s contentions.
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2021 (7) TMI 1003
Revision u/s 263 - Framing the assessment u/s. 143(3) - addition on account of RA Bill receipts - HELD THAT:- As perused the observation in the case of CIT vs. Nirma Corporation Ltd. [2008 (2) TMI 373 - GUJARAT HIGH COURT] held that wherein AO adopted one view, merely because commissioner took a different view of matter, it would not be sufficient to permit commissioner to exercise power u/s. 263 unless the view taken by the Assessing Officer is unsustainable in law.
As demonstrated from the detailed submission made by the assessee in the form of revised return of income, reply in respect of notice u/s. 142(1) of the act and other correspondence made during the course of assessment proceedings as elaborated above in this order that no tangible material has come in possession of the AO after framing the assessment u/s. 143(3) - On the other hand, the reopening has been made merely on the basis of material available on record which has been considered by the Assessing Officer at the original assessment stage. After considering the judicial pronouncements referred by the ld. counsel and the material on record, we are of the view that reopening made in the case of the assessee in the absence of tangible material after framing assessment u/s. 143(3) of the Act is not justified as per law therefore we quash the assessment holding that the action of the AO of reopening was without jurisdiction.- Decided in favour of assessee.
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2021 (7) TMI 1002
Seeking declaration that respondent are entitled to claim any outstanding amount from the Applicant in respect of any due or amount payable - 'statutory charge' created in favour of the Respondents - effect of amendment to Section 32A of the IB Code, 2016, retrospective or not - HELD THAT:- The Hon'ble Supreme Court in GHANASHYAM MISHRA AND SONS PRIVATE LIMITED THROUGH THE AUTHORIZED SIGNATORY VERSUS EDELWEISS ASSET RECONSTRUCTION COMPANY LIMITED THROUGH THE DIRECTOR & ORS. [2021 (4) TMI 613 - SUPREME COURT] by clarifying the statutory amendment to Section 32A of the IB Code, 2016 has held that such amendment it clarificatory in nature and it ought to be given retrospective effect. Which means that such provision is made applicable from the date the Insolvency and Bankruptcy Code came in to effect, i.e. 1st December 2016. By taking in to consideration of the above settled legal position and by following the decision of the Hon'ble Supreme Court.
It is declared that all liabilities of the Corporate Debtor which were prior to CIRP and are prior to approval of the Resolution Plan and before transfer of the assets of the Corporate Debtor to the Resolution Applicant shall stand extinguished.
Application allowed.
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2021 (7) TMI 1001
Benefit of abatement of 76% under N/N. 01/2006-S.T., 21/97-S.T., 39/97-S.T., 40/97-S.T., 12/2001-S.T., 8/2003-S.T., 12/2003-S.T., 18/2003-S.T., 19/2003-S.T., 2/2004-S.T., 9/2004-S.T. and 10/2004-S.T. - appellant had availed the Cenvat credit in respect of GTA Service - HELD THAT:- The same issue for previous period in the appellant’s own case came before this Tribunal in M/S NJ DEVANI BUILDERS PVT. LTD VERSUS C.S.T. & S.T. -AHMEDABAD [2019 (6) TMI 213 - CESTAT AHMEDABAD] and this Tribunal has held that the appellant is entitled for the abatement Exemption Notification subject to reversal of Cenvat Credit.
This very order was challenged before the Hon’ble High Court in MESSRS NJ DEVANI BUILDERS PVT. LTD VERSUS UNION OF INDIA [2020 (11) TMI 798 - GUJARAT HIGH COURT] wherein the Hon’ble Gujarat High Court set aside the Tribunal’s order as well as the Show Cause Notice raising the demand on the ground that the service falls under works contract service and demand was raised under Commercial or industrial construction service.
Considering the judgment passed by Hon’ble High Court since the same issue involved in the present case and there is only difference of period, the ratio of the Hon’ble High Court Judgment is squarely applicable in the present case - demand set aside - appeal allowed - decided in favor of appellant.
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2021 (7) TMI 1000
Nature of transaction - Service or not - Manpower recruitment and supply service or not - appellant had utilised services of the seconded employees of other firm under contract of employment - employer – employee relationship - case of appellant is that only employees working in foreign group company were deputed to its group company in India, hence is not covered under service provided from outside India - reverse charge mechanism - HELD THAT:- There is no doubt that the service said to be provided by M/s. Imasen Electric Industrial Company Ltd., Japan to the appellant were not taxable in eyes of law, especially when the appellant treated the amount paid to the said persons as salary in terms of Income tax rules and deducted the income tax on the same, in this regard the appellant produced Form No. 16 issued under Income Tax Act, which shows that the said persons worked as employee of the appellant, therefore, there is no doubt about the employer – employee relationship, thus the appellant is not liable to pay any service tax as confirmed vide the impugned order.
In the case of M/S VOLKSWAGEN INDIA PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2013 (11) TMI 298 - CESTAT MUMBAI] where it was held that The global employees working under the appellant are working as their employees and having employee-employer relationship. There is no supply of manpower service rendered to the appellant by the foreign/holding company. The method of disbursement of salary cannot determine the nature of transaction.
The appeal is allowed.
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2021 (7) TMI 999
Disallowance of depreciation of project assets being road and bridge - Addition on the ground that the assessee is not the owner of the project assets and hence is not eligible for claiming depreciation of such assets - HELD THAT:- As decided in own case [2021 (7) TMI 32 - MADRAS HIGH COURT] assessee is entitled to claim depreciation of public roads, treating the same as building. - Decided against the Revenue.
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2021 (7) TMI 998
Provisional attachment of bank accounts and immovable properties - petitioner has already deposited the amount of deposit for filing the appeal - Section 83 of CGST Act - HELD THAT:- Considering the affidavit-in-reply filed by the respondent to the effect that the petitioner firm is liable to pay the tax with interest and penalty, in aggregate ₹ 1,09,61,102/- and the department has attached the movable and immovable properties to the tune of ₹ 75,48,541/-, which include the attachment of two bank accounts i.e. of Union Bank of India account, having balance amount of ₹ 4,16,050/- and Canara Bank account with balance of ₹ 5,386/- and two other immovable properties worth ₹ 55,37,123/- and ₹ 15,89,982/- respectively, the Court is of the opinion that the interest of the Revenue would still remain substantially protected even if, at present, without going into the merits of the case, the provisional attachment in respect of two bank accounts is removed. It may be noted that the petitioner has already deposited the amount of deposit for filing the appeal under section 107 of the said Act.
The provisional attachment in respect of the bank account of the Canara Bank is removed - provisional attachment in respect of the two immovable properties shall continue.
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2021 (7) TMI 997
Deduction u/s 80IA - lease rent income received from letting out modules of Software Technology park to various lessees - whether Tribunal was right in holding that the income derived from letting out of property to the tenants as 'income from business in the hands of the owner of the property? - HELD THAT:- Issue decided in M/S. TIDAL PARK LTD. [2021 (7) TMI 302 - MADRAS HIGH COURT] income derived from letting out of the property with all amenities and facilities would be income from business and cannot be assessed either as income from house property or as income from other sources.
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2021 (7) TMI 996
Reopening of assessment u/s 147 - Addition u/s 68 - whether the initiation of 147 proceedings are based on tangible materials or change of opinion? - HELD THAT:- Since the assessee has completely failed to discharge his onus, the trade advances was treated as ingenuine and assessed under Section 68 - The said findings would reveal that though the petitioner has filed the list of persons, failed to furnish the complete details of the trade advances and to proof it is arising out of the purchases made in normal course of business. In view of the said non-disclosure, the Assessing Officer has formed an opinion for reopening of an assessment.
The findings of the AO reveals that during the original assessment proceedings, the assessee was asked to furnish the details and confirmations, in respect of the unsecured loans. The assessee, vide written submissions made on 12.10.2007, furnished a list containing the name of persons and amount outstanding against them in respect of the unsecured loans. However, the assessee has not furnished the loan confirmation, address and PAN of the persons from whom he claims to have received such loans - Assessing Officer formed an opinion that the onus is on the assessee to substantiate the loans by furnishing the above details to verify the genuinity and credit worthiness of the loan creditors. Since the assessee has completely failed to discharge his onus, the unsecured loan was treated as ingenuine and assessed under Section 68 of the Act.
This Court is of the considered opinion that as pointed out by the learned counsel for the petitioner, the assessee has furnished the list of persons and list of unsecured loans. However, the details of the names and other particulars, in order to establish the genuinity of such transactions, were not furnished. Thus, the Assessing Officer has reason to believe that income chargeable to tax escaped assessment due to non-furnishing of the complete informations and details, truly and fully, during the original assessment.
This Court do not find any infirmity or perversity in respect of the findings arrived by the respondent, while disposing of the objections.
Reasons as well as the inference drawn from and out of the particulars provided by the petitioner are candid and convincing. Thus, this Court is not inclined to interfere with the proceedings initiated for reopening of the assessment. The petitioner has to cooperate with the disposal of the reassessment proceedings. The respondent is bound to proceed with the reassessment and complete the exercise.
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2021 (7) TMI 995
Rectification of mistake - error apparent on the face of record or not - escaping of turnover - refund the excess Input tax credit - HELD THAT:- The impugned order at Ext.P4 has considered this aspect and it has been observed by the rectifying authority that the petitioner/dealer has failed to produce the invoices and had admitted that the suppliers failed to upload the invoices and therefore the tax was not remitted to the exchequer and hence the impugned tax credit came to be rejected.
Escaped turn over - HELD THAT:- The same point was considered in the rectification order with a finding that the turn over taken for assessment was only in respect of Form No.10 relating to the traders. The turn over of Form No.10B was not taken in the order of assessment and so there is no question of giving credit of payment as per Form No.10B. With these reasons by holding that there is no mistake to be rectified under Section 66 of KVAT Act, 2003, the rectification application so far as these two aspects is concerned, came to be rejected.
Consideration of both these aspects which are sought to be urged before this Court would certainly require this Court to record a finding of fact by examining the relevant documents. This Court, if it choses to dwell on these aspect will have to examine whether the petitioner had produced invoices or had failed to produce those invoices in order to ascertain whether rejection of input tax credit was according to law or otherwise. In the same manner scrutiny of Form Nos.10 and 10B will be required to be undertaken by this Court - the petitioner has alternate and more efficacious remedy of approaching the appellate authority in the matter.
Petition dismissed.
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2021 (7) TMI 994
Violation of principles of natural justice - impugned order passed without granting any further opportunity of hearing to the petitioner - penalty u/s 67 of the KVAT Act - HELD THAT:- The petitioner was not granted an opportunity of hearing in the matter, the impugned order at Ext.P8 is quashed and set aside and the matter is remitted for fresh consideration to the 1st respondent State Tax Officer. The petitioner to appear before the 1st respondent State Tax Officer at 11.00 A.M on 21.07.2021 along with all necessary records and then to abide by the further directions of the 1st respondent State Tax Officer. He shall co-operate the 1st respondent State Tax Officer in disposal of the matter without seeking any adjournments.
The learned counsel for the petitioner prays that till disposal of the issue of the penalty the notice at Ext.P10 be stayed. However, the petitioner is free to show cause to the said notice at Ext.P10 by disclosing the fact that the impugned order of penalty at Ext.P8 is quashed and set aside by this Court.
This writ petition is disposed of.
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2021 (7) TMI 993
Validity of assessment order - assesses have not filed option letter for payment of tax under compounding scheme - discrepancies in the turnover - HELD THAT:- This Court is of an opinion that the impugned order stipulates that regarding the difference in the turnover, the dealers have file Form WW and Profit and Trading and loss account for the Month of December 2014 only. At the time of filing Form WW, they have reported that the total sales turnover is ₹ 56,08,055/- in the Trading Account. At that time of inspection, they have not reconcile the above turnover before the Enforcement Officials. Now, they have stated that the correct turnover is ₹ 62,52,658/- only. But the trading account, they have reported the turnover is ₹ 56,08,055/- only. At that time personal hearing also, they have not reconcile how they have shown in the Trading Account - This Court is of an opinion that an adjudication is required with reference to the disputed facts.
Discrepancies in the turnover - HELD THAT:- Verification of records are required and the Appellate Authority is the final fact finding Authority regarding the adjudication of disputes. Therefore, preferring an appeal is preferable for the purpose of resolving the issues in a full-fledged manner.
The practice of filing the Writ Petitions are in ascending mode without exhausting the appeal remedy mostly with an idea to avoid payment of pre-deposit for filing an appeal. Such a practice can never be encouraged. In all circumstances, the parties are bound to exhaust the appeal remedy in the manner prescribed. This being the principles settled by the Courts, this Court is of an opinion that such disputed questions raised in the Writ Petition cannot be decided by this Court based on the affidavit or based on the orders passed by this Court, holding that the option letters need not be submitted by the assessee. All these issues are to be decided on merits and with reference to the documents and evidences to be produced.
The petitioner has to exhaust the Appellate remedy as contemplated under the provisions of the Act. Accordingly, the petitioner is at liberty to prefer an appeal in a prescribed format by applying the provisions of Statute and Rules, within a period of six weeks from the date of receipt of a copy of this order - Petition disposed off.
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2021 (7) TMI 992
Grant of Regular Bail - input tax credit - fictitious firms - fake and bogus invoices - section 132 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The Court looking to the seriousness of the offence and lack of change in circumstances, rejected the application of the applicant.
In the considered opinion of this court, after the aforementioned orders were passed rejecting the applications, no substantial change in circumstances or any exceptional aspect has been pointed out by the applicant, which would warrant his release on bail under the provision of section 439 of the Cr.P.C.
Application dismissed.
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2021 (7) TMI 991
Reopening of assessment u/s 147 - whether the mandatory requirements have been complied with in the present case or not? - HELD THAT:- It is relevant to consider Explanation 1 to Section 147 of the Act, which states that production before the AO of account books or other evidence from which material evidence could due diligence have been discovered by the AO will not necessarily amount to disclosure within the meaning of the foregoing proviso. Even Explanation 2 to Section 147 provides various circumstances under which reopening of assessment shall be done. Where assessment has been made, but income chargeable to tax has been under-assessed, then also re-assessment can be made.
There are numerous circumstances, which all are contemplated for the purpose of reopening of assessment and once, the AO has reason to believe that the income chargeable to tax has escaped assessment on account of the fact that the assessee has not disclosed fully and truly all material facts necessary for his assessment, then initiation u/s 147 shall be made beyond the period of four years and within six years.
This being the scope of Section 147 for reopening of assessment, this Court do not find any acceptable reason for the purpose of interfering with the reopening proceedings initiated by the authorities competent and it is for the petitioner to participate in the assessment/re-assessment proceedings and defend his case in the manner known to law.
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