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2018 (1) TMI 1675
Seeking replacement of the RP - HELD THAT:- The RP sought to be replaced in this case Mr. Navin Kumar Jain is also present in court. He has certain grievances with respect to his nonpayment of his remuneration for the period he has acted as the Resolution Professional. He was confirmed as the RP in this case on 18th December, 2017, after expiry of 30 days in the absence of any other name being proposed.
The amount claimed by the RP is considered to be excessive by the COC. Since his name was initially proposed by the IBBI on certain terms and conditions, including the remuneration to be given to him, his grievance be addressed by the IBBI Notice of his submissions filed in court be served on the IBBI Dasti, for an appropriate response - To come up on 29th January, 2018.
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2018 (1) TMI 1674
Liquidation of the company based on the resolution passed by the complete majority of the Committee of Creditors - section 33(2) of the Insolvency & Bankruptcy Code - HELD THAT:- Since Liquidation order has been passed no suit or other legal proceedings shall be instituted by or against the Corporate Debtor, save and except as mentioned in section 52 of the Code, as to institution of legal proceedings by the Liquidator, he is at liberty to initiate suit or legal proceedings with prior approval of this Adjudicating Authority, but this direction shall not apply to legal proceedings in relation to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.
The order shall be deemed to be a notice of discharge to the officers, employees and workmen of the Corporate Debtor except to the extent of business the Corporate Debtor carrying - it is directed that the fee shall be paid to the Liquidator as envisaged under Regulation 4 of IBBI (Liquidation Process) Regulations, which forms part of the liquidation cost.
Application allowed.
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2018 (1) TMI 1673
Doctrine of promissary estoppel - grant of injunctive relief - Applicability of clause (e) of Section 41 of the Specific Relief Act - Doctrine of legitimate expectation - HELD THAT:- The position that emerges is that power to grant injunctive relief, under Section 9 of the 1996 Act, has to abide by the provisions of the Specific Relief Act. Injunction which cannot be granted under Section 41 of the Specific Relief Act, cannot be granted under Section 9 of the 1996 Act, either. Neither can relief be granted, under Section 9, as would amount to specific enforcement of a contract which, by nature, is determinable, in view of Section 41 of the Specific Relief Act. The power to grant injunctive relief, under Section 9 of the 1996 Act, is essentially intended to protect the subject matter of the contract, and to avoid frustration of arbitral proceedings which may be initiated with respect thereto. Such relief can be granted only if the three pre-requisites, governing grant of injunctive relief, i.e. existence of a prima facie case, balance of convenience being in favour of the claimant and possibility of irreparable loss that would ensue to the claimant were such relief not granted, stand fully satisfied. Even in cases where a contract is being sought to be terminated, in violation of the terms thereof, if it appears that the party who suffers as a result of such termination could be adequately compensated in terms of money at the stage of final adjudication of the dispute, no injunctive relief, under Section 9 of the 1996 Act, would be granted.
Applicability of clause (e) of Section 41 of the Specific Relief Act - HELD THAT:- In the present, there is no termination of the contract, no breach thereof is, consequently, alleged by the claimant, a decision not to renew the contract further beyond its expiry is taken prior to such expiry, and the only relief sought by the claimant, before this court, is to injunct the said decision being acted upon, and, consequently, for the contract to be renewed for a further period. Where no breach of contract is alleged by the petitioner before this court, the applicability of clause (e) of Section 41 of the Specific Relief Act appears, to my mind, to be excluded altogether. Section 14 of the said Act, however, still appears to be applicable, and would be addressed hereinafter.
There is no question of exercising any equitable jurisdiction, continuing the said relationship, by grant of injunctive relief under Section 9 of the 1996 Act. No such exercise of power is contemplated, expressly or by necessary implication, in Section 9. This Court would be wildly transgressing the boundaries of its jurisdiction under Section 9, if it attempts to grant any such relief - Mr. Chetan Sharma has chosen to pitch his case on the principles of promissory estoppel and legitimate expectation, also relying for the said purpose, of Section 115 of the Evidence Act.
Doctrine of legitimate expectation - HELD THAT:- It is obvious that there is a distinction between legitimate expectation and mere hope or anticipation of an event occurring. The legitimacy of the expectation has to be established. Bona fide justification, for the action impugned, is an absolute defence, to a plea of legitimate expectation - the inadvisability of invoking the doctrine of legitimate expectation, in the area of contract, is also apparent from reading of the Indian Contract Act, 1872. Section 10 thereof clearly states, inter alia, that "all agreements or contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void." "Consent" is defined, in Section 13, by stating that "two or more persons are set to consent when they agree upon the same thing in the same sense".
The terms of the contract, between the rival parties in the present case, are so transparent, and unequivocal, that it is not necessary to dilate further on the applicability, to them, of the doctrine of legitimate expectation. The contract between the petitioner and respondent states, quite clearly that it would come to an end on 31st December, and that renewal thereof would be subject to a decision in that regard by the respondent, on terms and conditions acceptable to it. The mere fact that the respondent may have renewed the contract in the past, cannot justify entertainment, by the petitioner, of any expectation that the respondent would continue to renew the contract in perpetuity - In view of the admitted position that, in 2016 and 2017, the petitioner was unable to meet the targets set by the respondent, in contradistinction to the position that existed prior thereto, it is impossible to comprehend how the petitioner can seek to contend that its "expectation", even after it had failed to meet the targets, to have its contract renewed, can be regarded as "legitimate". Any such expectation, on the petitioner's part, can only be regarded as thoroughly misguided.
Doctrine of promissory estoppel - HELD THAT:- The "doctrine of promissory estoppel is not really based on principle of estoppel but is a doctrine evolved by equity in order to prevent injustice - no case for entertaining the present petition exists, is that, even assuming the decision of the respondent, not to renew the contract with the petitioner, suffers from any illegality, the petitioner could be adequately compensated by damages, should it choose to initiate any action in this regard. Applying clauses (a) and (c) of Section 14 of the Specific Relief Act, therefore, no case for injuncting the respondent, from acting on its decision not to renew the contract with the petitioner, is made out, as grant of any such relief would amount to specific enforcement, at the interim stage, of the agreement between the petitioner and respondent, which is determinable in nature; further, inasmuch as the case of the petitioner is that it had mobilised considerable resources, and incurred considerable expenditure, in setting up and operating its distributorship, the grievance of the petitioner could adequately be redressed by compensation, should the contentions of the petitioner be finally found to be acceptable.
The petitioner has been able to make out a case justifying the grant, to it, of any "window period" to wind up its affairs beyond 31st December 2017, or for any other form of injunctive relief, against the respondent - The present petition, under Section 9 of the Arbitration and Conciliation Act, 1996, is dismissed.
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2018 (1) TMI 1672
Addition on account of typing error in the Audit Report 3CD when compared with the audited profit & loss account - HELD THAT:- As analyzed facts & circumstances of the case we find that on a perusal of the paper book filed by the assessee, especially the statement of profit & loss account, the profit before tax is ₹ 1,13,41,172.87 and correspondingly the clarification letter filed by the Chartered Accountant of the assessee clearly states that the figure mentioned in column 40(C) of 3CD Audit Report has to be read as ₹ 1,13,41,173/- instead of ₹ 1,77,94,019/-, which was inadvertently mentioned.
Even before the Assessing Officer, the same was explained vide letter dated 13/1/2017 as is appearing at page 7 of the paper book filed before us in response to notice dated 25/11/2016. In this view of the matter, we are of the considered view that there was an inadvertent mistake committed by the Auditor of the assessee by wrongly mentioning the figure in column 40(C) of 3CD Audit Report as ₹ 1,13,41,173/- instead of ₹ 1,77,94,019/-, therefore, any addition in the hands of the assessee due to some typing error is not legally permissible. With these findings, we direct the deletion of addition made in the hands of the assessee. Accordingly, grounds of appeal taken by the assessee are allowed.
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2018 (1) TMI 1671
Addition u/s 37(1) - gifts/freebies to Doctors and Medical Practitioners - expenses claimed by the assessee under the head ‘Sales Promotion Expenses’ and under the head ‘Other Selling Expenses’ - disallowance on the ground that the same were with regard to providing gifts/freebies to Doctors and Medical Practitioners and the same was against the Medical Council Act, 1956 in view of the amendment made to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 - whether the Medical Council Act, 1956 apply to the assessee? - scope of amendment - HELD THAT:- The receiving of the gifts/freebies by Professionals is against public policy as also against the law in so far as the amendment by the Medical Council Act, 1956 to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, once receiving of such gifts have been held to be unethical obviously the corollary to this would also be unethical, being giving of such gifts or doing such acts to induce such Doctors and Medical Professionals to violate the Medical Council Act, 1956. Consequently, we are of the view that the expenditure incurred by the assessee which has resulted in the violation of the amendment to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 under the Medical Council Act, 1956, is not an allowable expenditure and hit by the explanation to Sec.37(1) of the Act.
Coming to the issue as to whether the same is operative prospectively or retrospectively or as to whether the said amendment is clarificatory in nature. A perusal of the said amendment notification dated 10.12.2009 under Clause-1(ii) specifies that it shall come into force from the date of their publication in the Official Gazette. The said amendment came to be published in the Official Gazette on 14.12.2009.
Consequently, the said amendment cannot be treated as operating retrospectively nor can it be treated as clarificatory in nature, clearly the said amendment is prospective in nature and operative from 14.12.2009.
CIT(A) has granted the assessee the benefit of the expenditure till 14.12.2009 and has restricted the disallowance by invoking the explanation to Sec.37(1) of the Act for the period from 14.12.2009. This being so, we find no error in the findings of the Ld.CIT(A) which calls for any interference.
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2018 (1) TMI 1670
Deduction u/s 80P - interest income earned on staff advances - HELD THAT:- It is not disputed that assessee was given deduction u/s.80P(2)(a)(i) of the Act on interest earned by it from its business of providing credit facility to its members. Such deduction was denied only on the interest received by the assessee on advances given to employees and interest earned on the deposits in savings bank account. In so far as interest earned from employees are concerned, contention of the assessee is that this was to be construed as a part of its main business activity of providing credit facility to its members. Certificate of registration of the assessee issued by the office of the Central Registrar of Cooperative Societies, which is available on record, clearly indicate that it is a Multi State Co-operative Society. It is obviously not a society engaged in the business of banking.
As noted by the Hon'ble Apex Court in the case of The Citizen Co- operative Society Ltd [2017 (8) TMI 536 - SUPREME COURT] there are two classes of businesses mentioned in the above clause. First class is those Co-operative societies carrying on business of banking and second class is Co-operative societies providing credit facilities to its members. Assessee falls in the second class. While holding that liberal interpretation has to be given for Sec.80P(2)(a)(i) of the Act, since said Section was enacted for encouraging its Co-operative Sector, their lordships took a view that interest earned by a Co-operative Societies providing credit facilities to its Associate Members would not be eligible for deduction u/s. 80P(2)(a)(i) of the Act. If interest earned from credits provided to Associate Members is not eligible for claiming the benefit of Section 80P(2)(a) (i) of the Act, it will nigh be impossible to give such benefit to interest earned on advances given to staff.
Considering the view taken by Hon'ble Apex Court on the extent of applicability Sec. 80P(2)(a)(i) of the Act, on a Co-operative Society providing credit facilities to its members, the decision of Jaipur Bench of the Tribunal in the case of Jalwar Sahkari Bhoomi Vikas Bank Ltd . [2015 (3) TMI 1411 - ITAT JAIPUR] relied on by the ld. Authorised Representative, in our opinion pales into insignificance.
Availability of such deduction on interest earned from deposits with savings bank account - Except for stating that the bank account on which it had earned interest was maintained with Schedule bank to enable it to carry out day to-day business, nothing has been brought on record by the assessee to show how such bank account was used for its business. What I notice is that interest was earned was savings bank account and saving bank accounts are not generally used for regular business activity.
Assessee was also unable to demonstrate that what was parked by it in its saving bank account was only temporary surplus. Coming to the decision of Bangalore Bench of the Tribunal in the case of M/s. KPTC & HESCOM Employees Co-Op Credit Society Ltd. [2015 (10) TMI 941 - ITAT BANGALORE] strongly relied on by the ld. Authorised Representative, money which was deposited was surplus remaining with the concerned assesses since there were no takers for loans. Against this, as mentioned be me nothing was brought on record by the assessee to show that deposits in the savings bank were money meant for lending remaining surplus because there were no takers. No reason to interfere with the order of the ld. Commissioner of Income Tax (Appeals) on both the issues raised by the assessee
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2018 (1) TMI 1669
Addition u/s 14A r.w.r. 8D - Tribunal justification in reading the word “net” in the expression, “expenditure by way of interest”, used in Rule 8D, while calculating disallowance in respect of exempt income even when there is no ambiguity in the expressions used in Rule 8D or in Section 14A - HELD THAT:- It is an agreed position between the parties that the issue raised herein stands concluded against the Revenue by the decision of this Court in CIT v/s. Jubiliant Enterprises Pvt. Ltd [2017 (2) TMI 1219 - BOMBAY HIGH COURT] - No substantial question of law.
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2018 (1) TMI 1668
Dishonor of Cheque - suit for recovery under Order XXXVII of the Code of Civil Procedure, 1908 - whether suit was beyond limitation as the period of limitation under Article 35 of the Limitation Act, 1963 has to be construed from the date of the cheque and not from the date when the cheque is dishonoured - jurisdiction of the Trial court - cheque was issued in Agra and the Defendants were located in Agra - HELD THAT:- Order XXXVII of the CPC lays down procedure for summary trials which are meant for quick adjudication of commercial transactions. The said procedure requires the parties to act with utmost diligence and alacrity. Once the suit under Order XXXVII of the CPC is filed and summons is issued, the Defendant is expected to file a memo of appearance within 10 days of the service of the summons. The Plaintiff has to then file a summons for judgment, which would be returnable in not less than 10 days.
The question as to whether leave to defend is to be granted or not depends upon the case set up by the Defendant, both by way of pleadings as well as documents. The Court takes an overall view of the matter at that stage, which is clearly prior to the trial of the suit, to determine whether the Defendant has a triable case or not. Order XXXVII Rule 3 of the CPC uses the terminology that the court would not refuse leave to defend unless "the facts disclosed by the Defendant do not communicate that he has a substantial defence to raise or the defence intended to be put up by the Defendant is frivolous or vexatious". Thus, the proviso to Order XXXVII Rule 3 of the CPC is worded in a double negative and the Defendant has to show a substantial defence which is not frivolous or vexatious.
Error in the summons by the Trial court - HELD THAT:- The Defendants were already well aware of the amount for which the Plaintiff had filed the suit as the initial summons in the suit issued on 4th July, 2014, clearly mentions the sum of ₹ 15,00,000/-. The Trial court in para 7 records that the wrong mentioning of the amount was merely a typographical error in the summons, which fact was conceded by the Defendants. Thus, this ground raised by the Defendants is not tenable.
Jurisdiction - HELD THAT:- The Plaintiff is located in Delhi and the delivery of the goods was made to the Defendants from the Plaintiff's Delhi office. The cheques which were issued by the Defendants to the Plaintiff were presented in Delhi. Even, the cheque of ₹ 15,00,000/- was presented in Delhi. Thus, under Section 20(c) of the CPC, part of the cause of action has arisen in Delhi.
Limitation - HELD THAT:- In a case like the present one, where there were a series of transactions between the parties and some amount remained outstanding, the giving of the cheque, which was given as a security, would not by itself construe the cause of action. It is only when the payment is not made and the person in whose favour, the cheque has been issued, seeks to encash the cheque and it is thereafter dishonoured, that the right to sue itself arises. Until and unless the cheque is dishonoured, the Plaintiff cannot maintain a suit under Order XXXVII of the CPC in case of a cheque. There could be a situation where a cheque which has been issued as security for a future payment would be presented only when amounts become due and payable in future. The law of limitation has been designed not to reject claims of parties but to only ensure that old claims are not re-agitated and there is a finality after a particular period.
Though the transaction between the parties relates to supply of skimmed milk powder, the suit is a simple suit under Order XXXVII of the CPC based on a cheque. The cheque was valid on the date it was presented. It was returned due to 'insufficient funds'. It is the Defendants' contention that the cheque for ₹ 15,00,000/- has been issued as a security, however, there is no document to this effect. The Plaintiff simply submits that the cheque in question was dishonoured and that gave it a cause of action to file the suit for recovery. The cause of action arose only when the cheque was dishonoured and hence the suit is filed within limitation.
Payment made - HELD THAT:- The cheque that was dishonoured was for ₹ 15 lakhs. In the reply to the leave to defend, there is a mere bald denial of the receipt of these payments and the effect thereof is not clear - The Defendants, though did not file any documents with the leave to defend application, have placed on record in this appeal, a bank statement to support the payments made as enumerated in para 8 of the application. It does appear clearly that the Defendants ought to be given an opportunity to place the evidence on record. The application for leave to defend was accompanied by an affidavit. The Court while considering the said appeal has to keep the said application in mind.
Defendants are accordingly, entitled to conditional leave to defend, subject to depositing a sum of ₹ 3,00,000/- in the Trial court within 10 days, which is the difference in the amount of the cheque of ₹ 15,00,000/- and the amounts claimed to have been paid by the Defendants - List before the Trial Court on 19.02.2018.
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2018 (1) TMI 1667
Deduction u/s. 80IA - deduction in respect of the Captive Power Plant established by it - HELD THAT:- In earlier years on the basis of such valuation, deduction u/s.80IA (4)(iv) of the Act were allowed from A.Y. 06-07. In our considered opinion, assessee is therefore on the principle of consistency, eligible for such deduction. Further as required assessee filed a certificate inform 10CCB from a charted accountant for claim and therefore the reasonableness and valuation of steam is certified through that certificate is eligible deduction
Also gone through the assessment order in details in that there is a finding of the AO in Page No.9 Para ii, wherein she has stated that 80IA(4) is an allowable deduction on steam and there is no dispute on it, steam has already been held to be power within the meaning of Section 80IA(4) of the Act. When on one hand AO herself is accepting that steam is eligible for deduction and on the other hand she is disallowing the deduction, it itself is contradictory, when once the AO is of the opinion that deduction is available on steam then no disallowance should have been made only on assumptions basis. The assessee has submitted several decisions in support of its contention and same are stated therein, the steam was transferred at a higher price. Further assessee has submitted engineer certificate at Page No.10 of Paper Book in which also the cost of generation of steam can be considered in the range of ₹ 1.16/- to 1.24/- per kg of steam. Further the saving in cost due to Captive production also cannot be ruled out which has been elaborated discussed by the ld. CIT(A).
Relying on various decision in support of the claim made by the assessee and acceptance by the AO that steam is a form of power and eligible for deduction and for the basis of deduction relying on the engineers certificate as well different case laws held. CIT(A) has rightly deleted the addition and profit margin kept by the assessee in Captive consumption is fair and reasonable - Decided against revenue.
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2018 (1) TMI 1666
Entitlement for deduction u/s 80IA(4) - whether activities undertaken by the assessee do not fall within clause (d) of the Explanation to Section 80IA(4) defining the term infrastructure facilities? - HELD THAT:- Appeal from the order of the Tribunal for the assessment year 200809 to this Court was dismissed in Commissioner of IncomeTax Vs. Continental Warehousing Corporation (Nhava Sheva) Ltd.[2015 (5) TMI 656 - BOMBAY HIGH COURT]
In view of the above, the question as framed does not give rise to any substantial question of law. Thus, this Appeal is not entertained.
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2018 (1) TMI 1665
Money laundering - criminal conspiracy - non-application of mind - criminal misconduct on the part of the public servant and the criminal conspiracy on his part with M/s. Emaar Properties to have their wrongful gain - HELD THAT:- The ends of justice are to be understood by ascertainment of the truth as to the facts on balance of evidence on each side. With reference to the facts of the case the Court held that in the absence of any other method, it has no choice left in the application of the Section except, such tests subject to the caution to be exercised in the use of inherent jurisdiction and the avoidance of interference in details and directed providing of a legal practitioner. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
The principle thus laid down is before issuing a process and taking cognizance the Court has to consider from the existing material whether case falls within the exception and only if not, to say prima facie accusation on a complaint or final report to take cognizance for any criminal if makes out. It is something different of prima facie consideration at pre-cognizance stage to the post-cognizance defence available to the accused under any of the exceptions in detail to make out either from the prosecution material or from any material placed by accused to show he is not liable to be charged to face the ordeal of trial.
When such is the case, so far as the quash Court under Section 482 CrPC from the accused also entitled to ask by placing any material in defence to consider from facts and circumstances, to subserve the ends of Justice, irrespective of the complaint allegations make out case for taking cognizance, where it deserves for quashing instead of continuing a lame prosecution with no purpose and by no need of inviting the accused to face the ordeal of trial.
The very cognizance order against the Petitioner-A11 in its entirety since unsustainable as concluded for various reasons from consideration of the material on record is liable to be quashed - Petition allowed.
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2018 (1) TMI 1664
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of genuine dispute as alleged by the corporate debtor or not - HELD THAT:- The ingredients as provided under section 9(5) (a to c) are satisfied by the petitioner for admission of this petition under section 9 of I&B Code. The Form 2 contains written communication from the proposed insolvency professional. The Insolvency Professional has given a declaration that no disciplinary proceeding is pending against him. Therefore, requirement under section 9(5)(e) of I&B Code also complied in the case in hand.
Whether the petitioner is an insolvent and a willful defaulter to is a bank is not a factor to be considered by this Adjudicating Authority.
It is an indication that the goods which were delivered to the corporate debtor and the demand made by the petitioner is genuine and those entire goods purchased by the corporate debtor was utilized by it. Raising of quality issue and the alleged return of goods and sending debit notice are all factors seems to have raised in the reply for the sake of objection. No materials are available to prove that any further investigation regarding the demand made is necessitated or that the dispute raised is genuine - In the case in hand learned C.F.O failed to convince that a dispute regarding plea of discharge is true or that the dispute raised in the reply is genuine which require further consideration.
In the present case, the Respondent-Corporate debtor not at all succeeded in proving the existence of a dispute regarding the supply of goods received by him whereas corporate debtor committed default by not making payment of outstanding dues along with interest to the operational creditor - it can be concluded that the objection raised by the corporate debtor is mere objection raising a dispute for the sake of dispute and unrelated to clause (a) or (b) or (c) of sub-section 6 of section 5 of the 'I & B Code'. It appears that raising a dispute in the reply is for the sake of dispute and is vague and motivated to evade the liability.
This petition deserves admission under section 9 of I&B, Code - petition admitted - moratorium declared.
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2018 (1) TMI 1663
Condonation of delay in instituting the departmental proceedings against the petitioners - chargesheet came to be issued against the petitioners on 18/12/2009 nearly 8 years from the date of the incident - satisfactory explanation for delay was produced or not - HELD THAT:- The Tribunal has relied upon the brief synopsis and the events mentioned therein while arriving at the finding that the delay is satisfactorily explained. It is further found that in the reply filed by the respondents there is no mention of the details which are set out in the brief synopsis. It is also the submission of the learned Counsel for the petitioners that the brief synopsis which is at Exh.M to the petitions was tendered after completion of the pleadings and when the arguments were in progress.
It is on the basis of the sequence of events and the action taken by the respondents as mentioned in the synopsis but which are not part of the pleadings that the Tribunal proceeded to hold that the delay has been satisfactorily explained. The Tribunal could not have relied upon the events mentioned in the synopsis which events were clearly beyond the pleadings or the materials on record.
The matter needs to be remitted back to the Tribunal for a fresh decision on merits - Writ Petitions are partly allowed.
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2018 (1) TMI 1662
Stay of recovery of outstanding demand - Assessment order in the name of company amalgamated - HELD THAT:- We find that the department is seeking adjournment for hearing of the main appeals. As the balance of convenience is in favour of the assessee considering the fact that the Hon’ble High Court has given stay of recovery for the earlier years and also considering the fact that the assessment order was passed in the name of non-existing company, the assessment order itself may not survive depending upon the facts on record. We cannot pass on any order without hearing the main appeal. Therefore, we are inclined to grant temporary stay of the outstanding demands for both the years under consideration for a period of month from the date of this order.
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2018 (1) TMI 1661
Cenvat Credit - Input Services - 2(l) of CCR - catering services - HELD THAT:- The issue has been decided in the case of CCE, NAGPUR VERSUS ULTRATECH CEMENT LTD., [2010 (10) TMI 13 - BOMBAY HIGH COURT] where it was held that all services used in relation to the business of manufacturing the final product are covered under the definition of `input service' and in the present case, the outdoor catering services being integrally connected with the business of the manufacture of cement, credit of service tax paid out on catering services has been rightly allowed by the Tribunal.
The questions proposed in the present appeal cannot be treated as substantial questions of law - Appeal dismissed.
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2018 (1) TMI 1660
Revision u/s 263 by CIT - Reopening of assessment u/s 147 - eligibility of deduction u/s 11(1)(d) of corpus donation - HELD THAT:- As the amount received by the assessee was voluntary in nature and the donors had specifically mentioned that their donations are towards infrastructure development. A copy of the specimen letters from the donors confirming their voluntary contribution and partaking the nature of corpus of the trust, is enclosed as book filed by the assessee. A copy of the receipt issued by the assessee is also enclosed as filed by the assessee.
The building fund is capital in nature and forming part of corpus of the trust. The words “Corpus Fund” are not defined in the Income-tax Act. Normally, “Corpus Fund” denotes a permanent fund separately accounted and capital in nature. Therefore, the receipt of voluntary contributions towards “infrastructure fund” is a voluntary contribution towards the corpus fund and is therefore exempted u/s 11(1)(d) in Chandraprabhu Jain v. ACIT [2016 (11) TMI 1041 - ITAT MUMBAI] had held that the building fund is forming part of the corpus fund eligible for deduction u/s 11(1)(d). Therefore, the initiation of the proceedings u/s 263 for disallowing the claim u/s 11(1)(d) of the corpus donation on the ground that it is not voluntary and not capital in nature is not in accordance with law and hence void - Decided in favour of assessee.
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2018 (1) TMI 1659
Addition u/s u/s 40(a)(i)and 40(a)(ia) - suo moto disallowance made by assessee - provision made towards payments - Assessee contending that the provisions made were in the nature of contingent liability as the identity of the recipients was not known and in the absence of income in the hands of the recipient, the question of tax deduction at source does not arise - whether the assessee can be held to be in default for non-compliance with the TDS provisions in the facts of present case? - HELD THAT:- As provisions are made at the end of the year in respect of which services were received and no TDS deduction was made. It is not the case of the assessee that the services were not rendered by the vendors. Therefore, it can be said that the liability had already crystallized and there exists an obligation to pay this amount and no uncertainty is involved in the transaction. Once services are received by the assessee, the payee or recipients of the payments are clearly identified and therefore the contention that the payees are not identifiable cannot be accepted.
Furthermore, the provisions of section 194A and 194 C which are applicable to the payments in question contains Explanation clarifying that any amount credited to any account called “payable account” or “suspense account” or by any other name in the books, the same shall constitute credit of income to the account of the payee and the provisions of TDS are applicable.
As in the present case, payees were identified and from the details of provisions made available before us, in the paper book, it is clear that it is not an ad hoc provision as the provisions contained odd figure also and it is also clear that the payees were clearly identified as the services were already received. Therefore, the ratio of the decision of this Tribunal in the case of M/s.TE Connectivity India Pvt. Ltd. [2016 (5) TMI 1222 - ITAT BANGALORE] is not applicable - in the result the appeal filed by the assessee is dismissed.
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2018 (1) TMI 1658
Addition being the notional interest and advance given to sister concern - assessee explained before the Assessing Officer that these are strategic investments made by it for the immediate working capital needs of the sister concern - HELD THAT:- As in case SA BUILDERS LTD. [2006 (12) TMI 82 - SUPREME COURT] held that when the borrowed funds were used for the business of sister concern, then the interest can be allowed as deduction even though the borrowed company has not used the loan amount for its business. The utilization of funds by the sister concern would tantamount to utilization of borrowed funds by the assessee. Therefore, the Apex Court found that there cannot be any disallowance. Moreover, in this case, the assessee claims that sufficient interest free funds were available with it. In those circumstances, this Tribunal is of the considered opinion that the disallowance is not justified. - Decided in favour of assessee.
Addition being the contribution towards gratuity scheme - HELD THAT:- It is not clear from the orders of the authorities below whether the gratuity fund was created by the assessee itself or it was contributed to the LIC gratuity fund. In the absence of any details of the nature of fund to which the contribution is said to be made, this Tribunal is of the considered opinion that the claim of the assessee cannot be adjudicated. In case the assessee has contributed to the LIC gratuity fund or any other similar fund and the contribution paid by the assessee has gone out of the hands irrecoverably, then the claim of the assessee needs to be allowed. In case the fund, which is said to be paid by the assessee, still remains with the assessee, then it cannot be said that the fund was irrecoverably gone out of the hands of the assessee. For deciding this issue, the nature of fund to which the assessee made contribution towards gratuity scheme needs to be examined. In the absence of any details before this Tribunal, the issue of contribution to gratuity scheme is remitted back to the file of the Assessing Officer. The Assessing Officer shall re-examine the matter and bring on record the nature of the gratuity fund to which the contribution is said to be made and thereafter decide the issue in accordance with law, after giving a reasonable opportunity to the assessee.
TP adjustment on Deduction u/s 80-IA - counsel submitted that the profit of the eligible business shall be computed as if the power generated by captive power plant was transferred to manufacturing industry at the market value - HELD THAT:- On identical situation, the issue of deduction under Section 80-IA of the Act was elaborately considered by the Mumbai Bench of this Tribunal in M/s Reliance Industries Limited [2017 (4) TMI 1489 - ITAT MUMBAI] after elaborately considering the provisions of Electricity Act for the purpose of deduction under Section 80-IA of the Act, found that the price at which the Electricity Board sells the electricity to its consumer has to be taken as market price for the purpose of computing deduction under Section 80-IA - This Tribunal is unable to uphold the orders of the authorities below. Accordingly, the orders of the authorities below are set aside and the Assessing Officer is directed to adopt the arm's length price of electricity at 6.03 per unit.
Determination of purchase of power from subsidiary company located in Karnataka - HELD THAT:- The assessee purchased power from subsidiary company, namely, KPR Sugar Mills at Karnataka. The purchase of power is not in dispute. Had the assessee purchased power from State Electricity Board or Karnataka State Electricity Board, it would have paid the price fixed by the respective Electricity Board. Merely because the assessee purchased the power from subsidiary company that cannot be a reason to fix the cost of generation and also the purchase price. We have to determine the purchase price in an estimated market rate at which the assessee would have purchased the power from open market. When the Tamil Nadu Electricity Board sells power at ₹ 6.03 per unit, this Tribunal is of the considered opinion that the assessee could not have paid in the open market at ₹ 7 per unit. Therefore, even though the assessee claims ₹ 7/- per unit, this Tribunal is of the considered opinion that the assessee ought to have purchased the power at ₹ 6.03 per unit from TNEB. There is no justification in fixing the arm's length price at ₹ 3.59 per unit. In view of the above, and the reason stated in the earlier part of the order for deduction under Section 80-IA of the Act, the orders of the lower authorities are modified and the Assessing Officer is directed to fix the purchase price of power from subsidiary company, namely, KPR Sugar Mills Ltd. at ₹ 6.30 per unit.
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2018 (1) TMI 1657
Validity of final awards that were passed and the MoRTH as well as PWD had already deposited - case of the petitioners is that since the compensation were not paid to the land holders in respect of the majority of the land under acquisition on or before 31.12.2014 - whether Section 24 of the Acquisition Act of 2013 is applicable to the NH Act of 1956 or not? - HELD THAT:- The Acquisition Act of 2013 came into force on 01.01.2014,wherein Sub-section (1) of Section 105 of the Acquisition Act of2013 provides that the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fourth Schedule. The NH Act of 1956 figured in the Fourth Schedule at Serial No.7 - it is clear that the applicability of the Acquisition Act of 2013 has been given effect in respect of the enactment specified in Fourth Schedule including the NH Act of 1956 with effect from 01.01.2015.
It is to be noticed that as per Sub-section (3) of Section 105 of the Acquisition Act of 2013 (as amended), the provision of the Acquisition Act of 2013 relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule have only been applied in the NH Act of 1956 and Section 24 of the Acquisition Act of 2013 is not made applicable to the acquisitions made under the NH Act of 1956 - it is held that Section 24 of the Acquisition Act of 2013 has no application in the acquisition proceedings under the NH Act of 1956.
Whether the determination of compensation in lieu of the acquisition of land of the petitioners is to be determined as per the First Schedule of the Acquisition Act of 2013 or not? - HELD THAT:- It is not in dispute that the final awards in respect of the notification issued under Section 3A of the NH Act of 1956 were issued under Section 3G of the NH Act of 1956 prior to 31.12.2014 and whole amount of compensation was deposited by the MoRTH and the PWD with the CALA before 31.12.2014.
The petitioners have admitted that they have received the compensation as deter mined in the awards passed under Section 3G of the NH Act of 1956 and they have not disputed this fact that they received the said compensation amount prior to 31.12.2014 - assertion is made on behalf of the petitioners in these writ petitions as well as during the course of argument that the majority of the land owners was not paid the compensation before 31.12.2014, yet no material is produced on record to prove the said fact. Only the information, said to have been received under the Right to Information Act, is furnished in some of the writ petitions, however, from the said information, it cannot be gathered that compensation was not paid to the majority of the land owners on or before 31.12.2014.
It is not in dispute that the acquiring authority i.e. MoRTH and the PWD had already deposited the whole amount of compensation with the CALA before 31.12.2014 and, therefore, it cannot be said that the compensation was not paid before31.12.2014. The disbursement of compensation to the landowners is the function of the Land Acquisition Officer and if there is any laxity on the part of the Land Acquisition Officer in disbursing the compensation amount, the acquiring authority cannot be held liable for the said inaction.
Petition dismissed.
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2018 (1) TMI 1656
Classification of goods - water Tank Assembly of Aluminium metal - to be classified under chapter 8607 or chapter 7611 of the Tariff? - HELD THAT:- In the present case the applicant M/s ASL Industries Limited sales water tank which are not common use in general market. Since, they are manufactured as per specific design provided by the central railway and to be fitted in passenger coaches hence it is a part of railway bogies.
The specially designed water tank assembly specifically made for Indian railways is falling under the HSN Code-8607 and the same has been specified in the entry no- 241 in notification no- 1/2017 dated 28.06.2017 of schedule I as notified u/s 5 (1) of the IGST Act (act no-13 of 2017) shall be taxed @5%.
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