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Showing 61 to 80 of 1125 Records
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2020 (11) TMI 1067
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the Corporate Debtor committed default in paying the financial debt to the Applicant. On perusal of record, it is held that there is existence of default and that the application under Section 7(2) of the Code is also complete in all respect - In the instant case, the documents produced by the Financial Creditor clearly establish the ‘debt’. Section 13 (2) Notice issued by the Financial Creditor clearly indicates that entire debt was recalled. There is a default on the part of the Corporate Debtor in payment of the ‘financial debt’.
There is no dispute in the case that the petitioner is the financial creditor. The application is also furnished in the prescribed form - 1 of the Rules and the prescribed fee has also been paid. Along with the application, the applicant has proposed the name of the Interim Resolution Professional namely Mr. Naresh Sheth.
The petitioner/financial creditor having fulfilled all the requirements of Section 7 of the Code, the instant petition deserves to be admitted - Petition admitted - moratorium declared.
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2020 (11) TMI 1066
Input tax credit - inward supply of Motor Vehicles which are used for demonstration purpose in the course of business of supply of motor vehicles - capital goods - utilisation of credit for the payment of output tax payable under this Act, allowed or not - HELD THAT:- Section 17 (5)(a) prescribes the condition in which input tax credit shall not be available on motor vehicles for transportation of persons having approved seating capacity of not more than thirteen persons (including the driver), except when they are used for making the following taxable supplies:-
(A) further supply of such motor vehicles; or
(B) transportation of passengers; or
(C) imparting training on driving such motor vehicle.
The demo vehicles used for demonstration and for offering trial facility to customers, are not covered in above exceptions.
The ruling of Madhya Pradesh Authority for Advance Ruling is agreed upon - the Appellant is not entitled to avail input tax credit on inward supply of motor vehicles which are used for demonstration purpose.
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2020 (11) TMI 1065
Maintainability of petition - prosecution of the case or not - HELD THAT:- On perusal of the record, it is found that on 15.07.2020 and on 18.08.2020 the learned lawyer for the petitioner was found absent and, thereafter, on 29.09.2020, he has shown his appearance. Today also the petitioner is found absent.
It appears that the petitioner is not interested in prosecuting the case - the instant IB Petition is dismissed for non-prosecution.
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2020 (11) TMI 1064
Application seeking stay of the proceedings in an appeal filed by them before the Court of Principal District and Sessions Judge - application under Order 9 Rule 13 of the Civil Procedure Code, 1906 (CPC), filed before the Trial Court for setting aside ex-parte decree was pending - HELD THAT:- A perusal of Order 9 Rule 13 of the CPC shows that it affords an opportunity to a defendant to apply to the Court for setting aside ex-parte decree by satisfying the Court that in the facts of the case, such an ex-parte decree could not have been passed. There cannot be dispute about the position of law that a defendant who has suffered an ex-parte decree can simultaneously invoke two remedies, firstly, by filing an application for setting aside ex-parte decree under Order 9 Rule 13 of the CPC and secondly, by filing an appeal under Section 96 of the CPC.
It was observed by the Hon’ble Supreme Court in the case of RANI CHOUDHURY VERSUS LT. COL. SURAJ JIT CHOUDHURY [1982 (8) TMI 217 - SUPREME COURT] that as per explanation to Order 9 Rule 13 of the CPC, after the appeal filed by the defendant against an exparte decree stood disposed of, it constituted sufficient reason for a ban on proceeding in an application for setting aside ex-parte decree filed by such aggrieved defendant - In the case of BHANU KUMAR JAIN VERSUS ARCHANA KUMAR & ANR. [2004 (12) TMI 676 - SUPREME COURT], the Hon’ble Supreme Court held that application under Order 9 Rule 13 of the CPC would not be maintainable once the Appellate Court disposes of the appeal, as the decree passed by the Trial Court merges with the order passed by the Appellate Court. It was also recognized that explanation to Order 9 Rule 13 of the CPC did not suggest that the converse was also true.
A bare perusal of the aforesaid provision, along with position of law laid down and emphasized by the Hon’ble Supreme Court, would show that the petitioners in the present case were entitled in law to seek stay of proceedings in the pending appeal before the Appellate Court, while pursuing the application for setting aside ex-parte decree under Order 9 Rule 13 of the CPC. It is clear that if the appeal proceeds and stands disposed of, the application for setting aside ex-parte decree filed by the petitioners cannot be proceeded with and it would be rendered infructuous.
It is in this backdrop, that the petitioners filed the aforesaid application for stay Exh.17 before the Appellate Court on 13/02/2017 i.e. more than two years after filing the appeal and the application for setting aside of ex-parte decree. There is no dispute about the fact that in the meanwhile the respondent No.1 (plaintiff/decree holder) deposited the balance amount of consideration on 06/08/2009 i.e. immediately after the decree was passed on 27/06/2009 and that the respondent No.1 also filed draft sale deed on 03/12/2011 before the Executing Court. Thus, a period of more than ten years has elapsed and the respondent No.1 was not been able to enjoy fruits of the decree, despite the fact that the entire balance consideration was deposited more than ten years earlier. The conduct of the petitioners is evident from the aforesaid material on record.
This Court is of the opinion that law must act in aid of justice. In peculiar facts and circumstances of a case, while recognizing settled position of law the Court must ensure that the ends of justice are not frustrated in the process.
Keeping in view the conduct of the petitioners before the Courts below, this Court expressed that in furtherance of justice, the petitioners ought to hand over possession of the suit property to the respondent No.1, subject to appropriate conditions and subject to the result of the pending proceedings - considering the position of law pertaining to explanation to Order 9 Rule 13 of the CPC, this Court finds that the impugned order cannot be sustained - Petition disposed off.
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2020 (11) TMI 1063
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - time limitation - Article 137 of the Limitation Act, 1963 - HELD THAT:- The ground agitated for assailing the impugned order is founded on plea of extension of limitation. The date of default being 1st July, 2001, the cause of action would not shift and therefore, limitation for initiating Corporate Insolvency Resolution Process would commence from the date of default - Subsequent restructuring of debt vide negotiated settlement which admittedly aborted and failed, would not give a fresh cause of action to Appellant. Such plea would not sustain even if the limitation is computed from the date of failure of such negotiated settlement as the application is still hit by limitation.
The Appellant submits that there is continuing cause of action. This is a misplaced argument as once the date of default is there which provides cause of action to the Appellant, limitation begins to run from such date.
There are no merits in the appeal - appeal dismissed.
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2020 (11) TMI 1062
Realization of claims against the CD which has already taken over by the Respondent No.2 - section 60 (5) of IBC, 2016 read with Rule 11 of the National Company Law Tribunals Rules, 2016 - HELD THAT:- The present Applicant being an Operational Creditor has filed this application praying for setting aside the Resolution Plan approved by this Adjudication Authority on 07.12.2018 or to direct the Resolution Professional to pay its claim of Rs.1,21,86,626/- as the Applicant could not know about admission of the petition/CIRP/Approval of Resolution Plan because the R.P. had published notice inviting the claim at Registered and Corporate Office Areas only i.e. Guwahati and Kolkata. Resolution Professional should have also published the notice in the Newspapers in the city of Mumbai and Nasik as in these places the CD used to conduct business and also the Registered office of the OC (Mumbai) - this Applicant/OC had supplied materials during the period from 03.02.2010 till 28.08.2010 and the last payment was received by the Applicant on 11.12.2010.
Hon’ble Supreme Court in the matter of COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT] has held that a Successful Resolution Applicant cannot suddenly be faced with “undecided” claims after the resolution plan submitted by the Resolution Applicant has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by the successful resolution applicant. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the CD.
The prayer of the Applicant/OC for setting aside the Resolution Plan approved by this Adjudication Authority on 07.12.2018 or to direct the Resolution Professional to pay its claim of Rs.1,21,86,626/- is rejected - Application disposed off.
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2020 (11) TMI 1061
Grant of anticipatory bail - petitioner acted as a guarantor to a loan facility obtained by one of the sister concern Society of the Company - default in repayment of loan - HELD THAT:- Delay condoned.
Issue notice, returnable on 27.11.2020.
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2020 (11) TMI 1060
Exemption from GST - Lease Agreement between the Appellant Company i.e. the Lessee and RLDA for a period of 99 years - whether amount transferred by the Appellant Company as Security Deposit in pursuance to the tender and lease agreement dated 08.11.2019 is exempt under GST in view of the N/N. 04/2019-Central Tax (rate) dated 29.03.2019 or N/N. 12/2017-Central Tax (rate) dated 28.06.2017? - HELD THAT:- It is observed that the appellant has totally misconstrued the clause 26.3 which provides for forfeiture of bid security deposit in case of breach of the Bid by the Bidder. We are not in agreement with contention of the appellant that if any instalment of lease premium amount is refunded in case of breach of Bid, its nomenclature will be changed from Premium to Security amount. In the LOA and the Lease agreement it is clearly mentioned that the first instalment of lease premium shall be Rs. 143667891/- and the Bidder has deposited an amount of Rs.158657105/- (Premium+ Interest) in the month of February, 2019. Lease agreement has acknowledged the payment of first instalment of lease premium in compliance of LOA which forms integral part of Lease Agreement - every agreement is independent in itself and conditions may vary from each other except the conceptual facts and principles. The Appellant has deposited the amount as lease premium after issuance of LOA. Furthermore, in the main portion of lease agreement which occurs on 18.11.2019, both parties i.e. RLDA and Appellant themselves has found it as 1st installment of the lease premium.
It is a fact that RLDA has issued LOA on 26.09.2018 addressed to M/s H. S. Mehta Infra Pvt. Ltd. Lead Partner of consortium. As per condition of LOA the consortium was required to create a SPC, therefore, appellant company has been incorporated as SPC. The Appellant in pursuance to LOA has deposited first installment of lease premium of Rs.15, 86, 57, 105/- by various RTGS on different dates from 16.02.19 to 22.02.19. Therefore, in view of above facts and provisions of law, it is observed that time of supply of service is 25.11.2018 which is after 60 days post to LOA and before the date of payment of premium. Even, the date of payment of lease premium is prior to 01.04.2019 - the exemption under Entry No. 41B of the Notification No. 12/2017 dated 28.06.2017 inserted vide Notification No. 04/2019 dated 29.03.2019 is not available to the appellant.
On perusal of LOA, it is noticed that in para 6 of LOA, it is clearly mentioned that LOA shall constitute a binding contract till the lease agreement and remaining paras of LOA tell about total premium and many other things about lease. Therefore, instead of lease agreement, LOA issued on 26.09.2018 should be treated 'the document' to determine the time of Supply of Services. The payment schedule has been prescribed in the para 3 of the LOA dated 26.09.2018 itself, according to which the first installment of lease premium of Rs. 14, 36, 67, 891/- was required to be paid within 60 days of the date of issuance of LOA. Accordingly, the first installment was required to be paid by 25.11.2018 - in absence of invoice, the date of LOA shall be taken into consideration for determining the time of supply of the service in view of Section 13 (3) (b) of the CGST Act, 2017 and SGST Act, 2017. Therefore, it is held that time of supply of service is 25.11.2018 i.e. immediately following sixty days from the date of issue of LOA which is prior to the date i.e. 01.04.2019 from which the exemption under Entry No. 41B of the Notification 12/2017 has been made effective.
As per Section 13 (1) of the CGST Act, 2017, liability to pay tax on services arises at the time of supply. As discussed, the time of supply of service in the instant case is 25.11.2018 whereas, Notification No. 04/2019 dated 29.03.2019 came into effect from 01.04.2019 - the Lease Agreement between the Appellant and RLDA and the amount of Rs. 158657105/-deposited during February, 2019 is not exempted from levy of GST under Notification No. 04/2019-Central Tax (rate) dated 29.03.2019 or Notification No. 12/2017-Central Tax (rate) dated 28.06.2017.
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2020 (11) TMI 1059
Maintainability of appeal against CIT-A orders - low tax effect - tax effect of quantum additions - HELD THAT:- Upon perusal of case records, it transpires that as per Column-10 of Form-36, the tax effect of quantum additions as disputed by the revenue is stated to be Rs.27,93,867/- which is below threshold limit of Rs.50 Lacs and therefore, the appeal is not maintainable in terms of latest low tax effect Circular No. 17/2019 dated 08/08/2019 [F.No.279/Misc. 142/2007- TTJ(Pt.) issued by CBDT. This recent circular further enhances the monetary limit fixed in earlier Circular No.3 of 2018 dated 11/07/2018 issued by CBDT as amended on 20/08/2018.
DR could not controvert the aforesaid fact. No exceptions have been pointed out. Therefore, the appeal is, prima-facie, not maintainable in terms of aforesaid circular issued by CBDT and hence, liable to be dismissed.
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2020 (11) TMI 1058
Recovery of refund - royalty paid for exploration of Mineral Oil and Natural Gas - tax paid by the petitioner in the form of royalty can be considered to be a consideration for service rendered, or not - HELD THAT:- The impugned show-cause notice being erroneous and wholly without jurisdiction and the representations preferred by the petitioner in response to the earlier show-cause notices not having been considered, the petitioners are aggrieved, and therefore the present writ petition has been filed. The learned senior counsel therefore prays for adequate interim relief seeking stay of the impugned show-cause notice.
Issue Notice Returnable after 4 (four) weeks’.
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2020 (11) TMI 1057
Taxability of Education cess - As submitted that, education cess is not tax and hence is not disallowable - HELD THAT:- As rely on the judgment of Hon'ble Rajasthan High Court in the case of Chambal Fertilizers and Chemicals Ltd. v. Jt. CIT [2018 (10) TMI 589 - RAJASTHAN HIGH COURT], which after taking into account aforementioned CBDT circular held that section 40(a)(ii) applies only to taxes and not to education cess - we allow the additional ground raised by assessee
TP Adjustment - comparables alleged for inclusion/exclusion by assessee as well as revenue under engineering design services segment- HELD THAT:- Assessee has been categorised to be rendering engineering design services with the help of software developed by its AE as a captive service provider, thus companies functionally dissimilar with that of assessee need to be deselected.
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2020 (11) TMI 1056
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Financial Debt - existence of debt and dispute or not - Applicability of section 18 and section 19 of Limitation Act - HELD THAT:- Since, much reliance has been placed by the Ld. Counsel for the petitioner on the reply filed by the Corporate Debtor in pursuant to the legal notice issued under Section 138 of the NI Act, therefore, it is deemed fit to consider this document at first and on going through the reply filed by the Corporate Debtor in response to the legal notice issued under Section 138 of the NI Act and it is noticed that at page 376, it is mentioned that Corporate Debtor had proposed for settlement of the account and on the basis of that Ld. counsel for the petitioner submitted that the Corporate Debtor has acknowledged the debt by sending the reply to the Legal Notice issued under Section 138 of the NI Act and it is also noticed that in its reply to the Legal Notice issued under Section 138 of the NI Act, in para 6 of the reply, which is at page 374 of paper book, it is mentioned that undated cheques were handed over to the petitioner and that is the reasons the date, when the cheques were handed over to the petitioner are not disclosed in the notice.
Apart from that, in the case of Yogesh Kumar Jaswantlal Thakkar Vs. India Overseas Bank and Ors [2020 (9) TMI 582 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] passed by Hon’ble NCLAT, where it was held that Section 19 of the Limitation Act is not applicable so far the IBC is concerned.
Applicability of Section 18 of the Limitation Act - it is mentioned in the reply dated 18.03.2017 that he is ready to settle the statement of accounts, which amounts to the acknowledgement of debt - HELD THAT:- In part-IV, the date of default is not mentioned. Since the last agreement was executed on 30.06.2013, therefore, the payments on the basis of that agreement must be made within 3 years from the date of last agreement, which was executed on 30.06.2013 and acknowledgement also must have been made within that period.
Even if the contention of the petitioner is accepted that reply which was given in response to the legal notice under Section 138 of NI Act will be treated as as an acknowledgement of debt, the same has also been made after three years from the date of execution of last ‘agreement, whereas in view of Section 18 of the Limitation Act, the acknowledgement must be made within the period of limitation. hence, the contention of the Ld. Counsel for the petitioner that the present application is within time, cannot be accepted.
Since the present application is barred by limitation, therefore, the notice need not be issued upon the respondent rather same is liable to be Dismissed - application dismissed.
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2020 (11) TMI 1055
Levy of GST - transportation facility provided by the employer (Applicant) to its employees for travel between predefined location to its the office, free of cost - recovery of nominal amount on account of air conditioning facility for transportation facility provided by the employer (Applicant) to its employees for travel between predefined location - taxable value of the transaction - HELD THAT:- It is observed that the Press Release dated 10.07.2017 very lucidly clarifies that transactions in the course of contractual obligation between employer and the employee are beyond the scope of GST. The same is very well reliable where employer-employee relation is in place and any service by the employer needs to be examined for leviability under GST. The same aptly provides that since service by an employee to the employer is outside the purview of GST, it follows that so will be the supply by the employer to the employee made in terms of the contract of employment.
Thus, the transportation facility is exclusive of the contractual obligation of the employer in the course of employment - Also, the circular mentioning that services of providing membership of a 'club1 or of a 'health or fitness centre' to employees is not subject to GST when provided free of charge to 'all' the employees, indicates that provisioning has to be under contractual agreement of employment.
The provisioning of transport facility provided by the Appellant is exclusive of the contractual obligation of the employer in the course of employment. The same shall be liable to GST, on a value that exceeds the total gift value up to ₹ 50000/- given by the Appellant to an employee availing this facility in a financial year.
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2020 (11) TMI 1054
Rectification of Error - HELD THAT:- In exercise of the powers conferred under Rule 154 of the NCLT Rules 2016, the order is rectified to the extent of the name of the Company by replacing “Ahuja Aangan Creators Private Limited” with “Pooja Aangan Creators Private Limited.”
The order dated 21° October 2020 stands modified - application is allowed.
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2020 (11) TMI 1052
Input tax credit - purchase of Paver Blocks, laid on the land which are being used by them in the course of providing their taxable output supply to their customers - Laying of the Paver Blocks on the land amounts to construction of immovable property under Section 17(5)(d) of the CGST Act, 2017 or not - capitalization of expenses on the Paver blocks - HELD THAT:- The immovable property inter-alia includes the things which are attached to the earth. Now, in the present case, it has been submitted that the 'Paver Blocks' are laid on the surface of the automobiles stock yard with the aid of the filling material, i.e. sand and the outer wall, constructed at the automobiles stock yard. Here, it is amply clear that the filling materials, i.e. sands and the outer walls helps the 'Paver Blocks” to remain attached and fixed to the Earth - Once it has been established that the 'Paver Blocks' are attached to the land/surface, the same is considered as an immovable property in terms of its definition provided under the General Clauses Act, 1897.
The Appellant has contended that the MAAR did not appreciate the technical nature, mobility and characteristics of the 'Paver Blocks' before holding the laid out 'Paver Blocks' as an immovable property. It has further been contended that the subject 'Paver Blocks' can easily be moved from one place to another without being damaged and re-erected there, thereby, conforming to the inherent nature of movable property. In this regard, it is observed that the 'Paver Blocks', once laid over the surface to comprise the parking system, cannot be moved “as it is” to another place as the same is also supported by the edge restraints provided by the outer wall constructed along the perimeter of the parking area of the said stock yard, which causes the paver blocks to get fastened or embedded to the earth permanently - The fact that it would clearly not be intention of the Appellant to move these 'Paver Blocks' from one place to another, lends certain degree of permanency to the 'Paver Blocks' laid over the surfaces, which is the essential characteristics of the immovable property.
The issue which is important here is whether it was the intention of the Appellant to dismantle the paver blocks. It is seen that the Appellant has taken over the land on lease for a period of 5 years. It can be deduced from it that the paver blocks are intended to be a permanent structure and there is no intention to dismantle it frequently and take it to any other place.
On perusal of Section 17(5)(d) of the CGST Act, 2017, it is observed that the clause “to the extent of capitalization, to the said immovable property” is applicable only with respect to the reconstruction, renovation, additions or alterations or repairs of the said immovable property, and not with respect to the original construction work of an immovable property. In the present case, the laying of 'Paver Blocks' over the surface of the stock yard would not come under the ambit of the aforesaid explanation as the same cannot be categorized as reconstruction, renovation, additions or alterations or repairs of an immovable property. The laying of 'Paver Blocks' will rather be construed as original construction work of immovable property which in the present case is 'parking system'.
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2020 (11) TMI 1051
Maintainability of Advance Ruling application - Classification of goods - proposed product to be manufactured by the Appellant would be considered/categorized as Glass-fiber Reinforced Gypsum or not - applicability of Sl. No.92 of the Notification No.1/2017-C.T. (Rate), dated 28.6.2017 - whether the Advance Ruling application filed by the Appellant is maintainable in terms of Section 95(a) read with Section 97(2) of the CGST Act, 2017 or not?
HELD THAT:- As per Section 95 of the CGST Act, 2017 (a) 'advance ruling' means a decision provided by the Authority or the Appellate Authority to an applicant on matters or on questions specified in sub-section (2) of Section 97 or sub-section (1) of Section 100, in relation to the supply of goods or services or both, being undertaken or proposed to be undertaken by the applicant. The section, therefore, envisages that an Advance Ruling can be asked for a transaction undertaken or proposed to be undertaken. Any transaction of supply of goods or services or both, proposed to be undertaken, can be a subject of an application of Advance Ruling. However, the meaning of the expression `proposed to be undertaken' cannot be expanded to include manufacturing, proposed to be undertaken.
It is one of the fundamental rules of interpretation that if the words of a statute are in themselves precise and unambiguous, then no more is necessary than to expound those in their natural and ordinary sense as the words themselves in such a case best declare the intention of the legislature. There is no need for an artificial expansion of the expression as a result of which the interpretation may well go beyond the intention of the Legislature. The application is therefore barred under Section 95 of the CGST Act, 2017 - there is nothing in the provisions of the CGST Act, 2017, which prevents the Appellant from approaching the Advance Ruling Authority with a fresh application along with the sample/reports of the products and seek ruling under Section 97 of the CGST Act, 2017.
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2020 (11) TMI 1050
Maintainability of Advance Ruling application - Levy of tax - reverse charge mechanism - procurement of domestic services like “renting of immovable property services” from SEEPZ SEZ - applicability of Notification No. 13/2017-Central Tax (Rate) dated 28.06.2017, amended by Notification No. 03/2018- Central Tax (Rate) dated 25.01.2018 - whether the Advance Ruling application filed by the Appellant is maintainable in terms of Section 95 (a) read with Section 97(2) of the CGST Act, 2017 or not? - HELD THAT:- On plain reading of the texts of Section 95(a) of the CGST Act, 2017, it is amply clear that the Advance Ruling can be sought only in respect of such supplies, which have been undertaken or proposed to be undertaken by the applicant. In other words, it can be said that only “supplier- of goods or services or both, can seek the Advance Ruling and not the “recipient- of such supplies. Thus, we agree with the observations made by the Maharashtra Advance Ruling Authority to the extent that it is only the supplier of goods or services or both, who is eligible to file the application for Advance Ruling in respect of the questions specified under Section 97(2) of the CGST Act, 2017.
Section 9 of the CGST Act, 2017 is the section dealing with 'levy and collection'. It provides for the levy of CGST on all intra-state supplies of goods or services or both. Section 9(3) of the CGST Act, 2017 in keeping with the tenor of the Section also speaks about the 'liability to pay tax' - all the provisions of the CGST Act, 2017, including the provisions related to the Advance Ruling, as laid down under Chapter XVII of the CGST Act, 2017, will be applicable to such recipients. Also, Section 31 (3)(f) of the CGST Act, which deals with 'Tax Invoice', requires a registered person, who is liable to pay tax under section 9(3) to issue a tax invoice in respect of goods or services received by him. As per Rule 36 (1)(b), the recipient is also eligible to take input tax credit on the basis of the tax invoice. This makes it clear that the recipient deemed to be liable to pay tax, he is well, within his rights to make an application for Advance Ruling to know whether he is liable to pay tax.
Liability to pay tax on the receipt of “renting of immovable property” services from the SEEPZ SEZ Authority as well as on the other services procured - HELD THAT:- The said questions, asked by the Appellant, can aptly be construed to be covered under the clause (e) of Section 97(2) of the CGST Act, 2017, which provides for the determination of the liability to pay tax on any goods or services or both. The aforesaid observation also finds support from the Kerala High Court Judgment in the case of SUTHERLAND MORTGAGE SERVICES INC VERSUS THE PRINCIPAL COMMISSIONER OFFICE OF THE PRINCIPAL COMMISSIONER OF CUSTOMS, CENTRAL GST AND CENTRAL EXCISE, KOCHI, THE COMMISSIONER OF STATE TAX, ASSISTANT COMMISSIONER, KAKKANAD RANGE-4 [2020 (3) TMI 186 - KERALA HIGH COURT] wherein the High Court during the course of the judicial review of the Advance Ruling pronounced by the Kerala Advance Ruling Authority inter-alia observed that the provision as per clause (e) of sub-section (2) of Section 97 of the CGST Act, 2017 is in wide terms and the Advance Ruling Authority is obliged to provide the Advance Ruling in all the matters pertaining to the determination of the liability to pay tax on any goods or services or both so that the applicant could get due clarity and precision about various aspects of taxation in the transactions undertaken by them.
Thus, it is evident from the aforesaid High Court Judgment that the clause (e) of Section 97(2) of the CGST Act, 2017 has got a very wide connotation and would cover all sorts of transactions, where the Advance Ruling on the questions related to the determination of the liability to pay tax including the liability under RCM (Reverse Charge Mechanism) can be sought by the Applicant in terms of the provisions related to the Advance Ruling as provided under Chapter XVII of the CGST Act, 2017.
The Appellant is eligible to file the subject Advance Ruling application, wherein they have sought the Advance Ruling as to whether they are liable to pay tax under RCM on the services of “renting of immovable property- received from the SEZ Authority and also on any other services liable for payment of GST under RCM in terms of the Notification No. 13/2017-C.T. (Rate). dated 28.06.2017 as amended.
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2020 (11) TMI 1049
Income deemed to accrue or arise in India - Royalty receipts - India US DTAA - HELD THAT:- As formed a belief that on the basis of granting of rights, the assessee got the exclusive rights with regard to Microsoft Products in exchange of stocks to MS Corp. Due to this, the intellectual property rights owner is Gracemac Corp. and any payments arising in India in light of provisions of Paragraph 7(b), Article 12 of the India-US tax treaty, are taxable as royalties. Forming this belief, the Assessing Officer held that not only 35% or 40% of the amount but total amount of USD 155,646,892 is taxable as royalty @ 15% as provided in Article 12 of India US DTAA.
Before us,the assessee, at the very outset, stated that the entire action by the Assessing Officer has been decided in favour of the assessee and against the revenue by the Tribunal in the case of Mocrosoft Corporation for AY.s 1997-98 to 1999-2000 in the case of MOL Corporation for A.Y 2011-12 [2018 (10) TMI 1939 - ITAT DELHI] and further in the case of MOL Corporation for A.Ys 2007-08 to 2010-11 [2022 (3) TMI 447 - ITAT DELHI]. Copies of the orders of the Tribunal have been supplied to us.
Per contra, the ld. DR, relying upon the orders of the lower authorities, however conceded that the impugned dispute has been decided in favour of the assessee by the Tribunal in the earlier years. - Decided in favour of assessee.
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2020 (11) TMI 1048
Seeking direction to the suspended Board of Directors for providing the record and other information of the Corporate Debtor - application filed under Section 19(2) of Companies Act - HELD THAT:- On one pretext or the other, there is no compliance with the order of this court which makes it clear that the Suspended Board of Directors have not maintained the record of the CD. In other words, they have failed to perform their fiduciary duties in maintaining the record of the Corporate Debtor. Whereas they are duty bound to maintain the record of the CD for a period of not less than 8 years as mandated under the provisions of Section 128 (5) of the Companies Act, 2013. The Directors namely Mr. Ashish Chaturvedi and Mr. Sanjay Kapoor have grossly violated the provisions of Section 128 (5) of the Companies Act, 2013 for which the punishment is provided under Section 128 (6) of Companies Act, 2013. The only option before this Authority/Tribunal is to invoke the provision of Section 128 (6) of the Companies Act, 2013 and impose penalty as prescribed.
Looking to the conduct of the Suspended Board of Directors, penalty of ₹ 5 Lakhs on each viz., Mr. Ashish Chaturvedi and Mr. Sanjay Kapoor is levied - total ten lakhs shall be deposited to the Accounts of the Government of India, Ministry of Corporate Affairs, within a period of four weeks from the date of passing of this order and thereafter compliance reports shall be submitted by the counsel for Respondent No. 1 and 2 to the Registry - application disposed off.
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2020 (11) TMI 1047
Whether the money i.e. ₹ 32 lakhs has been withdrawn from the account of the Corporate Debtor viz., M/S. A to Z Barter Private Limited, maintained at I-IDFC Bank, Branch Mayapuri? - HELD THAT:- In spite of the present application for depositing the amount withdrawn to the accounts of the CD, the respondents have not bothered to deposit an amount of ₹ 32 lakhs approximately.
The respondents are directed to deposit an amount of ₹ 32 lakhs along with interest @ 12 % per annum from the date of the withdrawal and deposit the total amount to the accounts of the Corporate Debtor being maintained by the Resolution Professional within a period of 21 days from the date of this order - application disposed off.
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