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Showing 61 to 80 of 1721 Records
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2019 (6) TMI 1664 - CHHATTISGARH HIGH COURT
Levy of service tax - license fee paid by the petitioners to Indian Railways for award of license for operation, management and supply of catering services in the Trains of Indian Railways - reverse charge mechanism - suppression of facts or not - HELD THAT:- A perusal of the notice would show that preliminary submissions were made by the petitioners' representative(s) and after consideration thereof, the notice under challenge was issued. The show cause notice appears to have been issued after the initial reply. The details of notice purports that the averments of the petitioners were too considered and thereafter, they were given opportunity of hearing in person before adjudication of the case. The said notice further shows that the case is posted for hearing and the petitioners were given opportunity of being heard before any orders have been passed.
Reading of the entire show cause notice which runs into 32 pages primarily describes the averments of the parties. The language of show cause notice would show that after preliminary consideration, the authority issuing the same came to a conclusion that the petitioners have willfully suppressed certain facts of rendering taxable services provided to them. The show cause further speaks that such facts came to fore when the investigation of records was carried out and after examination of records, the authority was of the opinion that suppression of facts exists.
A reading of show cause notice would show that the authority issuing notice has reasonably acted upon and narrations have been made that why the authority has come to conclusion by recording such objective satisfaction of fact and has asked for the explanation by way of show cause.
At this stage, since the petitioners have been given opportunity of hearing, the prayer to quash the show cause at the inception would amount to strangulate the issue which is yet to be adjudicated - it would not be appropriate to exercise the discretionary jurisdiction of writ and quash the show cause notice by evaluating the language of it as primarily it does not show that it is without jurisdiction.
The petitions at this stage are premature and liable to be dismissed.
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2019 (6) TMI 1663 - APPELLATE AUTHORITY FOR ADVANCE RULING, CHHATTISGARH
Liability to pay tax - contributions made to District Mineral Foundation (DMF) and National Mineral Exploration Trust (NMET) as per Mines and Minerals (Development and Regulation) Act, 1957 - HELD THAT:- The activities undertaken by the trusts are under the control of the District Administration and different Government departments entrusted to it by the State Government in respect of the DMF and the Central Government in respect of the NMET respectively.
Section 2(98) of CGST Act, 2017 stipulates regarding liability to pay tax under reverse charge, meaning therein that the liability to pay tax shall be on the recipient of goods/services rather than the supplier of goods/services - Further, Reverse Charge Mechanism is applicable for certain notified services as mentioned in Notification No, 13/2017 - Central Tax (Rate) dated 28,06.2017. As per SI. No. 5 to the said Notification, services supplied by the Central Government, State Government, Union territory or local authority to a business entity attracts GST under reverse charge basis by the recipient of such services. Thus, entry No. (5) of the said notification states that the services supplied by the Central Government/State Government to a business entity will come under Reverse Charge Mechanism.
There appears no merit in the appeal filed by the appellant & thus the ruling of the AAR, Chhattisgarh is upheld.
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2019 (6) TMI 1662 - BOMBAY HIGH COURT
Benefit of the DTVSTV Scheme - HELD THAT:- On considering contents of Praecipe, time to remove office objections on aforesaid matter, if not dismissed / rejected, is further extended till 10th August, 2019, failing the matter to stand rejected under the provision of O.S. Rule 986.
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2019 (6) TMI 1661 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial creditors - Financial Debt or not - existence of debt and dispute or not - HELD THAT:- It is quite clear that a debt can be considered as a 'financial debt' if it is disbursed against the - consideration for the time value of money. It is also required to be noticed that under the provisions of Section 7 of IBC, 2016 the FC is entitled to initiate the CIRP against the CD when a default has occurred on the part of CD in relation to the repayment of financial debt owed to FC.
The Respondent contends that as per section 7 of IBC read with section 3(13), no default could have been committed on the date of petition and therefore no cause of action arose on the date of filing of the petition. Further as per section 3(12) "default" means non- payment of debt/amount which has become due - In the present case the amount had not become due as it was "Long Term borrowings" and was to be returned only after 10 years. The tribunal is required to be satisfied that indeed a default has occurred in relation to a financial debt owed which has to be based on the documents produced by the petitioner, which is missing in the present case.
Also, no resolution as passed by the corporate debtor or relevant entry in register of charges maintained by the ROC to support its claim of remittance by way of loan and tenure of the loan and interest payable by the respondent has been produced - Further the petitioner has also not placed on record the following relevant documents i.e, documents/ resolutions passed by the board for remitting the said amount, registers maintained at the company as are required under sec 186(9) of the Companies Act, 2013, balance sheet and other financial statements related to the transactions.
There are no hesitation in dismissing this petition - petition dismissed.
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2019 (6) TMI 1660 - NATIONAL COMPANY LAW TRIBUNAL HYDERABAD
Seeking approval of the Resolution Plan - Sections 30(6) and 31 of the Insolvency and Bankruptcy Code, 2016 read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- The Resolution Professional filed this Application under Section 30, 31 of the IBC for approval of the Resolution Plan submitted by SMAIT. The Resolution Plan shall confirm to the requirements stated in 30 (2) of the Code. The Resolution Applicant is competent to file the Resolution Plan. The Resolution Professional has given certificate that Resolution Plan confirms to the requirements of Section 30 (2) of the IBC. The Resolution Plan is for revival of the Corporate Debtor Company. In the 200 meeting of CoC held on 10.12.2018 the Resolution Plan filed by SMAIT was taken up for consideration and e-voting window was kept open from 13.12.2018 to 21.12.2018. The Resolution Plan (originally dated 28.11.2018) submitted by SMAIT dated 11.12.2018 was approved by the CoC with 81.39% voting share. Annexure-C is the copy of voting percentage. Annexure-B (Colly) is the Resolution Plan filed by SMAIT dated 11.12.2018. The Plan to be approved by CoC with 66% voting share. However, the Plan has been approved by the members of CoC having 81.39% voting share.
M/s Future Corporate Resources Private Limited (FCRPL) filed counter to the Application filed by the Resolution Professional for approval of the Resolution Plan. The averments in the counter are already stated. Interestingly, FCRPL is a member of CoC which voted in favour of the Resolution Plan. Having voted in favour of the Resolution Plan, FCRPL is now asking the Tribunal to delete Clause 11.28 from the Resolution Plan and related clauses with regard to waiver of guarantees and securities given by DCHL for the loan taken by subsidiary Company Aviotech Pvt Limited. It is not open to FCRPL to ask for deletion of the Clause 11.28 from the Resolution Plan because it has voted in favour of the Resolution Plan. Without going into the merits of the objections raised by FCRPL, the objection cannot be entertained on the simple ground, it has voted in favour of the Resolution Plan. Therefore, it is not open to FCRPL at this stage to direct the Resolution Applicant to delete Clause 11.28. Secondly, The Resolution Plan which is approved by members of CoC having voting share of 81.39% of which FCRPL is also one of the members of CoC. So objection raised by FCRPL cannot be considered and no reliefs can be granted as prayed by FCRPL.
Resolution Plan submitted by Resolution Applicant M/s SREI Multiple Asset Investment Trust Vision India Fund, which is approved by members of CoC having 81.39% voting share stands approved - moratorium order passed under Section 14 shall cease to have effect from today.
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2019 (6) TMI 1659 - ITAT KOLKATA
Addition u/s 68 - bogus STCL - Gain derived from rigging of the scrip prices in issue and involving accommodation entry in collusion with the concerned entry operators - as argued that the department has disallowed/added the impugned STCL based on circumstantial evidence unearthed after a series of search actions / investigations undertaken by the DDIT(Inv) - HELD THAT:- The fact remains that the assessee has duly placed on record the relevant contract notes, share certificate(s), detailed corroborative documentary evidence indicating purchase / sale of shares through registered brokers by banking channel, demat statements etc., Revenue’s only case as per its pleadings and both the lower authorities unanimously conclusion that there is very strong circumstantial evidence against the assessee suggesting bogus STCL accommodation entries.
Find that there is not even a single case which could pin-point any making against these assessees which could be taken as a revenue nexus - we make it clear that the CBDT’s circular dated 10.03.2003 has itself made it clear that mere search statements in the nature of admission in absence of supportive material do not carry weight - we notice that this tribunal’s coordinate bench’s decision in Mahavir Jhanwar vs. ITO [2019 (3) TMI 210 - ITAT KOLKATA] has taken into consideration identical facts and circumstances as well as latest developments on legal side whilst deleting the similar bogus LTCG addition.
Coupled with this, hon'ble jurisdictional high court’s other decisions in CIT vs. Rungta Properties Pvt. Ltd. [2017 (6) TMI 521 - CALCUTTA HIGH COURT], CIT vs. Shreyahi Ganguly [2012 (9) TMI 1113 - CALCUTTA HIGH COURT], M/s Classic Growers Ltd [2013 (2) TMI 825 - CALCUTTA HIGH COURT] also hold such transactions in scrips supported by the corresponding relevant evidence to be genuine.
We adopt the above extracted reasoning mutatis mutandis therefore to delete the impugned STCL disallowance / addition. Unexplained commission expenditure disallowance, if any shall automatically follow suit as a necessary corollary. - Decided in favour of assessee.
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2019 (6) TMI 1658 - MADRAS HIGH COURT
Deduction u/s 80P - whether Tribunal is correct in denying the claim for deduction u/s 80P(2)(a)(i) of the Act by following their non-existent order dated 08.06.2018? - HELD THAT:- We need not labour much to decide the substantial questions of law, as a serious error has crept in in the impugned order presumably due to oversight. The Tribunal relied upon an order for the assessment year 2014-15 and held that the appeal does not merit consideration. Unfortunately, it is the very same appeal which was to be decided by the Tribunal because, the said appeal was disposed of earlier by a single member bench vide order. This order was set aside by the jurisdictional bench of the Tribunal by order [2018 (1) TMI 1670 - ITAT CHENNAI] and accordingly, the appeal stood fixed for hearing. Unfortunately, neither the assessee’s authorised representative, nor the Department's representative brought to the notice of the Tribunal that it is the very same appeal which has to be heard on merits. On the contrary, it appears that both of them had referred to the earlier order dated 11.01.2018 in the same appeal which stood recalled by order dated 08.06.2018.
The impugned order passed by the Tribunal has to be necessarily set aside and the appeal should be remanded to the file of the Tribunal to be heard and decided afresh.
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2019 (6) TMI 1657 - BOMBAY HIGH COURT
Addition on account of excess depreciation claimed - HELD THAT:- we notice that similar issue had come up for consideration before this Court in Revenue’s Income Tax Appeal in case of this very assessee for earlier assessment year. While disposing of the appeal by an order [2017 (4) TMI 1576 - BOMBAY HIGH COURT] the Court recorded that the learned counsel for the Revenue haS instructions not to press this ground. This question is, therefore, not considered.
Capital subsidy received as excise duty reimbursement - Revenue or capital receipt - HELD THAT:- Subsidy scheme formulated by the Government of Bihar was for the purpose of attracting capital investment and to encourage setting up / expansion of existing units. Thus the object / purposes of the subsidy was for the purposes of encouraging capital investments in the State of Bihar. Consequently the impugned order holds that subsidy would be on Capital account and could not be considered to be on Revenue account.
In fact this issue about the object/purpose of the subsidy deciding its character as revenue or capital is no longer res integra in view of the decision of the Supreme Court in CIT, Madras v/s. Ponni Sugars & Chemicals Ltd. [2008 (9) TMI 14 - SUPREME COURT]
Addition made to the book profit on account of excess depreciation and subsidy received by way of reimbursement of commercial tax (VAT) - HELD THAT:- the question as proposed also seeks addition to book profits on account of excess depreciation along with subsidy received by the respondent - assessee. It is settled position in law as held by the Apex Court in Apollo Tyres Ltd. v/s. CIT [2002 (5) TMI 5 - SUPREME COURT] that the Assessing Officer while computing the book profit under Section 115J of the Act has only a power to examine whether the books of account have been maintained in accordance with the provisions of the Companies Act and have been duly audited. The book profits as reflected in the duly audited account have to be accepted by the Assessing Officer and the only limited power he has to increase/ decrease the book profit as arrived at by the assessee is only in terms of the Explanation to Section 115J of the Act. In the present case, the Revenue is not invoking the explanation to Section 115J of the Act to vary the book profit declared in the audited accounts of the respondent - assessee.
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2019 (6) TMI 1656 - ITAT MUMBAI
Reopening of Wealth tax assessment - whether the piece of land in Pineville held by the assessee was its Stock in Trade, or taxable within the provisions of Wealth Tax Act? - HELD THAT:- AO despite recording the liabilities against the land, failed to appreciate that undoubtedly the land was Stock in Trade of assessee. Furthermore, Explanation 1(b) attached with section 2(ea) of the Act clearly specified that any land held by assessee as ‘Stock in Trade’ for a period of 10 year from the date of acquisition, will not include in the definition of ‘Urban Land’. No contrary fact is brought to our notice despite the fact that the assessee throughout the proceedings taken a firm stand that the land is a forming part of their stock in trade. We are also in agreement with the submissions of the assessee that that as per section 2 (m) of Wealth Tax Act, while determining the Wealth Tax liability of the assessee, the aggregate value of debt owned by the assessee in respect of the asset owned by the assessee have to be reduced from the aggregate value of assets belonging to the assessee.- Decided against revenue.
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2019 (6) TMI 1655 - MADRAS HIGH COURT
Service of Communication - HELD THAT:- The Nodal office has served a communication dated 29.03.2019 on the petitioner stating that the issue has been referred to GSTN (Goods and Service Tax Network) and the decision is under process.
The writ petitioner submits that this writ petition can be disposed of as closed. Recording the memo, as the writ petitioner's prayer has since been acceded to, Writ petition is disposed of as closed.
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2019 (6) TMI 1654 - RAJASTHAN HIGH COURT
Seeking stay on operation and effect of the notifications impugned - N/N. 04/2015-2020 dated 25.04.2018 and N/N. 05/2015- 2020 dated 25.04.2018 - HELD THAT:- Issue notice to respondents, returnable by four weeks.
In the meanwhile, operation and effect of notification dated 29.03.2019 (Annexure-9) shall remain stayed qua the petitioner.
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2019 (6) TMI 1653 - TELANGANA HIGH COURT
Validity of revisionary assessment order - failure of petitioner-company to file its objections to SCN within time - HELD THAT:- Perusal of the impugned revisionary assessment order demonstrates that the petitioner-company was served with notices, but it failed to file its objections within time. As it is stated that the earlier assessment which was subjected to revision resulted in a huge enhancement of the total Entertainment Tax payable by the petitioner-company, one more opportunity should be afforded to the petitioner-company to put forth its stand before the revisionary authority.
The Writ Petition is allowed setting aside the revisionary assessment order and remitting the matter to the revisionary authority, viz., the Assistant Commissioner (State Tax), Basheerbagh Circle, Abids Divison, Hyderabad, for consideration afresh of the matter after giving due opportunity of hearing to the petitioner-company through its authorized representative.
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2019 (6) TMI 1652 - NATIONAL COMPANY LAW TRIBUNAL PRINCIPAL BENCH NEW DELHI
Collation of claims - applicability of limitation period of three years - Article 137 of the schedule of the Limitation Act, 1963 - HELD THAT:- IRP is directed to examine the claim of the applicant- NOIDA and shall not reject it on the ground that it is time barred or that it is a claim by an entity other than the ‘Financial Creditor.
List for further consideration on 01.07.2019.
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2019 (6) TMI 1651 - ITAT KOLKATA
Addition u/s 68 - unexplained share capital - Non discharge of burden of proofs viz. identity of the creditor, his creditworthiness and genuineness of the transaction - HELD THAT:- As the net owned funds of each share applicant were several times more than the investment made in equity of the assessee. It is evident that each share applicant had substantial resources of their own compared with the total investible funds available with each share applicants and that investment made in the equity shares and the assessee company was not significant. We note that the AO did not point out any defect or infirmity in the documents placed on record by the assessee as well as the share subscribers. Thus the creditworthiness of the aforesaid share subscribers cannot be disputed.
Assessee had produced the aforesaid documents to explain the nature and source of the share capital along with share premium of the four corporate shareholders. We note that the AO had accepted the share capital subscribed by these four corporate entities. However, without pointing out any defects has arbitrarily without giving any reason by a cryptic order has added the entire share premium which was also given by the very same four corporate entities u/s 68 of the Act. The Ld. AR brought to our notice that the similar additions were made by the same very AO in five cases wherein the AO accepted the share capital but added the share premium which action of the AO was not upheld by the Tribunal.
As share premium cannot be added in the hands of the assessee u/s. 68 of the Act since the proviso was inserted u/s 68 of the Act only from AY 2013-14 and similar additions made only on share premium was directed to be deleted and which action has been upheld by the Hon’ble Bombay High Court in Pr. CIT Vs. Apeak Infotech [2017 (9) TMI 1590 - BOMBAY HIGH COURT]- Decided in favour of assessee.
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2019 (6) TMI 1650 - CALCUTTA HIGH COURT
Jurisdiction - power of Additional Director General of Central Excise Intelligence to issue SCN - HELD THAT:- Following the order passed in an identical matter in COMMISSIONER OF SERVICE TAX KOLKATA VERSUS M/S. IXIA TECHNOLOGIES PVT. LTD. [2019 (2) TMI 1558 - CALCUTTA HIGH COURT] are disposed of by directing the tribunal to decide the appeal before it in accordance with law within three months of communication of this order.
Application disposed off.
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2019 (6) TMI 1649 - ITAT BANGALORE
TDS u/s 195 - Disallowance u/s. 40(a)(i) and 40(a)(ia) in respect of payment being commission on export sales - HELD THAT:- As decided in own case on applicability of Expin-2 to Sec.195(1) of the Act which was introduced by the finance Act 2012 w e f 1- 4 -1962 we are of the view. That the said explanation is applicable only when there is accrual of income in India. When the conclusion reached is that there is no accrual of income in India, we fail to see how Expin,2 to Sec. 195 are attracted.There was no obligation on the part of the Assessee to deduct tax at source while making payment to the non-resident, Consequently, no disallowance of commission expenses paid to non-resident could be made invoking the provisions of sec. 40a)(1) of the Act. We hold accordingly and direct the AO to delete the disallowance so made - Decided against revenue.
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2019 (6) TMI 1648 - ITAT MUMBAI
Reduction of Profit eligible for deduction u/s 80-IB(10) whilst computing Book Profits u/s 115JB - HELD THAT:- Tribunal did not adjudicate the same and dismissed the grounds treating the same to be merely academic in nature. The assessee as well as revenue contested the order of Tribunal for AY 2010-11 before Hon'ble Bombay High Court wherein the Hon’ble Court, [2017 (6) TMI 1361 - BOMBAY HIGH COURT] remitted the matter back to the Tribunal for adjudication in view of the fact that the grounds were not adjudicated. The copy of the order has been placed on record. In the above background, it has been submitted that the non-adjudication of ground in impugned AY would constitute mistake apparent from record and therefore, suitable directions may be given to rectify the same. The Ld. DR fairly conceded the same.
Upon careful consideration, the undisputed position that emerges is the fact that similar issue as stated in Ground A, arose in assessee’s case for AY 2010-11 which was dismissed as academic in nature by the order of Tribunal [2014 (2) TMI 1154 - ITAT MUMBAI]. Upon further appeal by the assessee as well as department, the order of the Tribunal was quashed by Hon’ble Bombay High Court and set aside for readjudication
The controversy being pari-materia the same and in view of the fact that the assessee is not in further appeal with respect to Ground No. A, respectfully following the directions of jurisdictional High Court in AY 2010- 11, we are of the considered opinion that Ground No. A of the appeal would require adjudication. Therefore, we recall the observations of Tribunal in [2016 (3) TMI 907 - ITAT MUMBAI] with respect to Ground No. A. The same would be taken up for re-adjudication in regular course.
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2019 (6) TMI 1647 - GUJARAT HIGH COURT
Seeking grant of bail - company had obtained borrowings from different banks, although, the Company had appeared in the defaulter list of the Reserve Bank of India - allegation that actual turnover of the company was much less than the projected turnover - loan transaction is a genuine transaction or not - HELD THAT:- This Court deems it appropriate, at this stage, when the investigating agency is further investigating into the matter, that instead of granting the regular bail to the present applicant, it is appropriate and equitable in wake of the chargesheet having been laid in this case in the month of July, 2018, to grant him interim bail with certain stringent conditions and more particularly the applicant is having agreed not to transfer in any mode or manner any of the properties which are enlisted by different list before this Court, to grant them interim bail for the period of three months for now.
This Court is conscious of the fact that essentially and predominantly the case is based on documentary evidences. The further investigation of the C.B.I. which is on going is also mainly relying on the documentary evidences and concerned witness is being questioned on the strength of such documents. There is no likely hood of tampering with the documentary evidences which have been seized and which are in the custody of various Banks. The Court is also conscious of the well laid down principle of 'bail and not jail' where more particularly there are rival claims of loss being not on account of any fraud committed with the Bank, but because of the various factors affecting the market so also the aspect that the chargesheet has been filed long ago and there is no likely hood of the trial getting over with such bulky volume of evidence and numbers of witnesses in a near future. The matters which are investigated by C.B.I. since involving serious question, the trial is likely to take a longer time - It will also give an opportunity to the Court to monitor the pace of investigation and the conduct of the accused during the course of further investigation. This will uphold the right of individual liberty and yet will not stultify in any manner the right of investigating agency to further investigate.
The applicant is ordered to be released on interim bail for the period of three months from the date of his release, subject to conditions imposed - application allowed in part.
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2019 (6) TMI 1646 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Seeking extension of period of Corporate Insolvency Resolution Process by 90 days with effect from 04.06.2019 as per the provisions of Section 12(2) of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- It is convincing that case for extension is made out as Resolution might be possible - the application succeeds and the extension is granted for a period of 90 days beyond 03.06.2019.
Rejection of claims by the Resolution Professional - HELD THAT:- The RP has placed reliance on the order passed by the Hon hie Appellate Tribunal in the case of DR. VISHNU KUMAR AGARWAL VERSUS M/S. PIRAMAL ENTERPRISES LTD. [2019 (2) TMI 316 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], and according to the said order no duplicate claim would be maintainable for the same set of claim and default.
It is pertinent to mention that the claims of the applicant have already been admitted against the principal borrower - the present application is not maintainable and is dismissed as such.
List on 11.07.2019.
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2019 (6) TMI 1645 - ITAT CHANDIGARH
Addition by taking the sale consideration of 1/2 portion of the property - Co-ownership of property with husband - HELD THAT:- Addition sustained by the Ld. CIT(A) was not justified particularly when an identical addition made in the hands of the co-owner of the same property i.e; Husband of the assessee, has been deleted by the Ld. CIT(A) and the said order was not challenged before the higher Forum. In view of the above the addition made by the A.O. and sustained by the Ld. CIT(A) is deleted. - Decided in favour of assessee.
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