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Showing 81 to 100 of 2015 Records
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2018 (12) TMI 1937
Stay petition - Whether assessee has not violated the condition of stay? - HELD THAT:- To verify the correctness of the submission of AR we verify the order sheets of the appeals and find that the contention of ld. AR of the assessee are correct,there is no intentional or deliberate delay in disposal of appeal on the part of assessee. Considering the submission of the assessee, the stay is further extended for three month or till the disposal of appeal whichever is earlier. All the conditions, if any, imposed in earlier orders will remain inforce.
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2018 (12) TMI 1936
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- In view of lack of response by way of payment of the amount claimed in default or notice of dispute being issued to the Operational Creditor on the part of the Corporate Debtor, the present application has been preferred under Section 9 of IBC, 2016 read along with attendant rules seeking for the initiation of Corporate insolvency Resolution Process (CIRP) as against the Corporate Debtor wherein an amount of debt in a sum of ₹ 33,44,351/- is claimed as the amount in default which became due and payable after the expiry of 7 days from the date of the respective invoices.
Vide order dated 05.06.2018 it is seen that upon service of the notice of the Application, the Corporate Debtor is being represented by Mr. Rahul Sharma, Advocate. It is seen vide order dated 24.07.2018 the liabilities are been admitted by the Corporate Debtor and hence no reply is filed. Under the circumstances of further non-appearance of Corporate Debtor vide order dated 12.10.2018, this Tribunal was constrained to proceed with the matter exparte in relation to the Corporate Debtor - That the Operational Creditor has filed an affidavit along with the petition as mandated under section 9 (3) (b) of the Insolvency and Bankruptcy Code, 2016 thereby submitting that a demand notice U/s 8(1) of the IBC, 2016 dated 19.03.2018 to which no reply was received raising any dispute of the unpaid operational debt and no payment towards the outstanding debt has been received by the Operational Creditor.
The Corporate Debtor accepted the liabilities and a default of debt due to the Operational Creditor is also in existence remaining unsatisfied as evident prima facie, this Tribunal is of the considered view that this petition requires to be admitted and that CIRP process is required to be initiated against the Corporate Debtor - the Application/ Petition stands admitted in terms of Section 9(5) of IBC, 2016 and the moratorium shall come in to effect as of this date - Application allowed.
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2018 (12) TMI 1935
Interpretation of statute - applicability of provisions of the Indian Penal Code - offences also within the purview of the Information Technology Act, 2000 - whether the invocation and application of the provisions of the Indian Penal Code can be sustained in the facts and circumstances of the case when the offences committed by the petitioners are also sought to be brought within the purview of the Information Technology Act, 2000? - it was held by Bombay High Court that The Information Technology Act, 2000 being a special enactment, it requires an able investigation keeping in mind the purpose of the enactment and to nab the new venturing of crimes with the assistance of the Technology. The subject FIR insofar as the investigation into the offences punishable under the Indian Penal Code is set aside.
HELD THAT:- The Special Leave Petitions are dismissed.
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2018 (12) TMI 1934
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- The amount involved in this case is below the monetary limit of ₹ 20 lakhs which has been notified vide instruction being F. No. 390/Misc./116/2017-JC dated 11/07/2018. The present case falls under exclusion Clause 3 (C) of the National Litigation Policy introduced vide Board’s Instruction dated 17.12.2015 which has been deleted vide Instruction F. No. 390/Misc./116/2017-JC dated 04.04.2018.
Accordingly, the appeal is dismissed under litigation policy.
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2018 (12) TMI 1933
Jurisdiction - Attachment of land owned by respondent No.1 - power and jurisdiction of respondent Nos.3 and 4 to attach the immovable property of respondent No.1, that is mortgaged with the petitioner bank - non-compliance with the notice issued under Section 13(2) of the SARFAESI Act - non-performing assets - HELD THAT:- In the present case, the petitioner and respondent No.1 are the Cooperative Societies, registered under the Maharashtra Cooperative Societies Act. There is no provision under the Maharashtra Cooperative Societies Act similar to Sections 529 and 529A of the Companies Act.
There cannot be any dispute with the proposition that the welfare legislation will have to be liberally construed and the payment of gratuity would be a part of welfare legislation as has been held by the Apex Court in the case of All India Allahabad Bank Retired Employees Association [2009 (12) TMI 1024 - SUPREME COURT]. In the said case, the question before the Apex Court was whether the retired employees of the appellant Bank therein were entitled for the payment of gratuity under the provisions of Payment of Gratuity Act. In that context, the Apex Court had observed that the said remedial statute will have to be liberally construed.
In the present case, the dispute would be about the priority of claim, whether the claim of the petitioner bank would have a priority over the claim under the Payment of Gratuity Act visavis the provisions of the SARFAESI Act. The Apex Court in the case of UNION OF INDIA VERSUS SICOM LTD. [2008 (12) TMI 53 - SUPREME COURT] has unequivocally held that considering the statutory right of the Financial Corporation under the State Financial Corporations Act and the non obstante clause occurring therein, the Corporation had a preferential claim.
The SARFAESI Act has also been amended and Section 26E is introduced with the non obstante clause giving a priority claim over all other debts - The recovery certificate has been legitimately and validly issued. However, pursuant to the said recovery certificate, the secured assets of respondent No.1 with the petitioner bank cannot be attached under the said recovery certificate and as observed above, after the sale of the assets of respondent No.1 and realisation of the dues of the petitioner, if certain amount remains, then respondent Nos.5 to 62 would be entitled for the same.
The attachment over the secured assets with the petitioner bank i.e. the properties of respondent No.1 bearing Gat Nos.44/1, 44/2 and 44/3 is quashed and set aside. However, the prayer of the petitioner for quashing recovery certificate is rejected - Application disposed off.
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2018 (12) TMI 1932
Addition u/s. 68 - investment in share capital of amalgamating companies - CIT(A) has deleted the addition taking note that the AO has made the addition in the hands of the amalgamated company (assessee company) - HELD THAT:-The identity of the amalgamating 14 companies were lost and it effaces away for all practical purposes and is no longer in-existence and so non-est in the eyes of law. And since the assessee company is different juristic entity cannot be taxed by applying sec. 68 of the Act for the share capital and premium which these 14 amalgamating companies have shown in their respective books from FY 2008-09 onwards.
CIT(A) has correctly taken note of the judicial precedence to come to the conclusion that on the date of transfer taking effect, the corporate entity of the transferor company ceased to exist and from that date the amalgamating companies is non-est in the eyes of law and the amalgamated assessee company is a different corporate entity and cannot be saddled with the share capital introduced by 14 different amalgamating companies in FY 2008-09, therefore, we are inclined not to interfere with the order passed by the Ld. CIT(A) and for the reasons discussed above and the reasons given by the Ld. CIT(A) we concur and, therefore, we uphold the same and dismiss the Revenue’s ground of appeal for AY 2012-13.
Disallowance u/s. 14A of the Act read with Rule 8D - HELD THAT:- As brought to our notice that the assessee has not earned any dividend income which is exempt from tax, so according to Ld. AR, no disallowance could have been made applying sec. 14A read with Rule 8D of the Rules. We note that Hon’ble High Court of Delhi in the case of CIT Vs. Cheminvest Ltd. [2015 (9) TMI 238 - DELHI HIGH COURT] has held after taking note that assessee company in that case also did not earn any dividend income.
Thus as per law, the receipt of the income exempted from tax is necessary for any disallowance u/s 14A of the Act read with Rule 8D. If there is no exempted income received during the year, there can be no disallowance made applying section 14A of the Act read with Rule 8D. Hence, in the instant case of the assessee company, question of any disallowance does not arise, as it has not received any exempt income. Therefore, in view of the case laws discussed hereinabove, no disallowance is warranted in the instant case as no exempted income has been earned by the assessee. Therefore we confirm the action of ld CIT(A) on this issue and dismiss the ground of appeal of revenue.
Claim of assessee in respect to “Preliminary Expenses written off.” - disallowance on the reason that assessee has not filed any details before him in respect to this claim made by assessee - HELD THAT:- CIT(A) has not deliberated on this issue while allowing the claim of the assessee. Therefore, for the interest of justice and fairplay, we set aside this order of Ld. CIT(A) and remit this matter back to the file of AO to decide de novo the claim of the assessee and the assessee is directed to file all details before the AO. And the AO to decide this issue after hearing the assessee in accordance to law. This ground of appeal of revenue is allowed for statistical purposes.
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2018 (12) TMI 1931
Loss aggravated for the purpose of showing reduced profit on adjustment - whether the assessed profit and assessed loss could be adjusted in the same year in accordance with law under sections 70(1) and 71(1) of the Income Tax Act, 1961? - HELD THAT:- At this stage there is no scope of going into this question of fact that the loss was enhanced so as to reduce profit. Regrettably that stage of fact finding is over. The assessee now is entitled to this adjustment as prayed for.
In those circumstances, we find no merit in the appeal of the revenue. It is dismissed.
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2018 (12) TMI 1930
TP Adjustment - interest on receivables - treating the receivables outstanding beyond 60 days from the associated enterprises [AEs] as deemed loan and charging notional interest on the basis of average State Bank of India base rate of 9.83% per annum plus 300 basis points - HELD THAT:- Since no disturbance has been made in so far as OP margin of the assessee is concerned the OPN has been arrived after making working capital adjustment. Operating mark up of the appellant company is 16.19% whereas the comparables working capital adjustment mark up comes to 15.72%. This shows that the profit margin of the appellant company is higher than that of the comparables. The ratio laid down by the Tribunal in the case of Kusum Healthcare Pvt Ltd [2015 (4) TMI 180 - ITAT DELHI] also affirmed by HC [2017 (4) TMI 1254 - DELHI HIGH COURT] squarely applies
DR pointed out that the Revenue has preferred SLP before the Hon'ble Supreme Court against the judgment of the Hon'ble High Court of Delhi. In our understanding, since the operation of the judgment of the Hon'ble High Court is not stayed by the Hon'ble Supreme Court, the same is binding on us and, therefore, respectfully following the decision of the coordinate bench, affirmed by the Hon'ble High Court [supra] we direct the Assessing Officer/TPO to delete the addition - Decided in favour of assessee.
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2018 (12) TMI 1929
Appointment of independent arbitrator - declination to appoint holding that as per the terms of the agreement, arbitrator had already been appointed - in the light of the agreement between the parties in Clause (65) of the general conditions of contract whether the Appellant/contractor can challenge the appointment of the Superintendent Engineer, Arbitration Circle as Arbitrator to resolve the dispute between the parties? - HELD THAT:- The High Court placed reliance upon the judgment in ANTRIX CORP. LTD. VERSUS DEVAS MULTIMEDIA P. LTD. [2013 (5) TMI 402 - SUPREME COURT]and held that when the Superintendent Engineer, Arbitration Circle was appointed as the Arbitrator in terms of the agreement (or arbitration clause), the provisions of Sub-section (6) of Section 11 cannot be invoked again. The High Court further observed that in case, the other party is dissatisfied or aggrieved by the appointment of an arbitrator in terms of the agreement, his remedy would be by way of petition Under Section 13 and thereafter while challenging the award Under Section 34 of the 1996 Act.
In the present case, the Arbitrator has been appointed as per Clause (65) of the agreement and as per the provisions of law. Once, the appointment of an arbitrator is made at the instance of the government, the arbitration agreement could not have been invoked for the second time.
When the parties have specifically agreed for appointment of sole Arbitrator of the person appointed by the Engineer-in-Chief/Chief Engineer, HPPWD, the Appellant was not right in approaching the High Court seeking appointment of an independent Arbitrator - Inspite of extension of time, since the Appellant-contractor had not filed statement of claim, the arbitrator terminated the proceedings Under Section 25(a) of the 1996 Act by proceedings dated 06.08.2014. The Appellant-contractor did not file his statement of claim before the arbitrator since the Appellant had approached the High Court by filing petition Under Section 11(6) of the 1996 Act, probably under the advice that the Appellant can get an independent arbitrator appointed. The Appellant had been writing letters to the arbitrator before the hearing seeking adjournment.
An opportunity is to be afforded to the Appellant to go before the departmental arbitrator (as agreed by the parties in Clause (65) of the general conditions of contract) and the proceedings of the arbitrator dated 06.08.2014 terminating the proceedings is to be set aside. After the Amendment Act, 2015, there cannot be a departmental arbitrator - in this case, the agreement between the parties is dated 19.12.2006 and the relationship between the parties are governed by the general conditions of the contract dated 19.12.2006, the provisions of the Amendment Act, 2015 cannot be invoked.
The proceedings of the arbitrator dated 06.08.2014 terminating the arbitral proceedings is set aside. In terms of Clause (65) of the general conditions of contract, the Chief Engineer, Himachal Pradesh Public Works Department is directed to appoint an arbitrator in terms of Clause (65) of the agreement - the Appellant shall file his claim before the arbitrator so nominated and the arbitrator shall afford sufficient opportunities to both the parties and proceed with the matter in accordance with law.
Appeal disposed off.
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2018 (12) TMI 1928
Exemption u/s 11 - allowability of depreciation of fixed assets in the case of public charitable trust - HELD THAT:- The issue of allowability of depreciation of fixed assets in the case of public charitable trust has been settled in the case of CIT Vs. Rajasthan and Gujarati Charitable Foundation, Poona [2017 (12) TMI 1067 - SUPREME COURT] - the Hon'ble Bombay High Court in the case of CIT Vs. Institute of Banking Personnel Selection [2003 (7) TMI 52 - BOMBAY HIGH COURT] and in the case of Director of Income Tax(Exemptions), Mumbai Vs. Shri Vile Parle Kelavani Mandal [2015 (5) TMI 220 - BOMBAY HIGH COURT] has held that there is nothing like double deduction and when the assessee has acquired an asset from the income of the trust and thereafter, claimed the depreciation on the use of fixed assets, such depreciation claim does not mean double deduction. Accordingly, we do not find any reason to deviate from the findings of the Ld. CIT(A) and therefore, we uphold the order of CIT(A) on this issue. Grounds raised by Revenue on this issue are dismissed.
Carry forward loss and allow the set off against the subsequent year's income - HELD THAT:- It is an undisputed fact that during the year, assessee has deficit as his gross expenditure exceeded the gross income and claimed the same to subsequent year for being set off against the subsequent years - AO disallowed the same by holding that if the deficit is allowed to be carried forward; the same would result in double deduction to assessee. CIT(A) in the appellate proceedings, after relying on the decision in the case of CIT Vs. Institute of Banking Personnel Selection [2003 (7) TMI 52 - BOMBAY HIGH COURT], allowed the appeal of assessee. In the present facts and circumstances of the case and after perusing the decision of the Hon'ble Jurisdictional High Court in the case of CIT Vs. Institute of Banking Personnel Selection (supra), we are of the view that the Ld. CIT(A) has correctly allowed the carry forward of deficit to the following years for claiming set off. - Decided against revenue.
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2018 (12) TMI 1927
Assessment u/s 153A - Gross profit on bogus purchases - CIT(A) has confirmed the addition merely on the ground that the.assessee could not produce, evidence regarding transportation of goods from Mumbai to Nagpur and for further sale of the purchased goods - HELD THAT:- A perusal of the assessment order shows that no incriminating material was found in the case of assessee during the course of search Proceedings showing that the purchases made from the three parties was bogus - the assessment in the appellant's case was unabated/completed assessment and therefore any addition in the appellant’s case could be made only on the basis of incriminating material found during the course of search.
AO has not pointed out any defect in the purchase bills and other evidences produced by the appellant nor has he given any findings that the payment made by appellant to the aforesaid parties through banking channel is not genuine nor the AO has brought any evidence on record to prove that the appellant has received back cash from the aforesaid parties in lieu of payment made through banking channel. The Ld. AO has not rejected appellant's books of accounts - AO has simply relied on information supplied by sales tax authority that the so-called sellers have provided bogus bills on commission - addition is completely based on conjecture and surmise. Further when evidence clearly proves purchases as genuine, merely because the evidence of transportation is not available in case of jewellery which could easily be carried in person, it cannot be held that there is no evidence of transportation especially when the said goods have been held in closing stock and declared as such in the books of accounts - do discrepancies except the statement of the said supplier before the sales tax authorities were brought on record by the AO and that the said addition amounted to double addition as the said goods were already recorded in the regular books of accounts and were included in the closing stock which was considered for arriving at the gross profit offered for taxation. AO, failed to bring on record any other evidences, except statements before the sales tax authorities to prove that the said purchases are non-genuine and accordingly we delete the addition towards gross profit on alleged bogus purchases for AY. 2012-13.
Additions towards share capital and share premium u/s 68 - assessee has failed to offer any explanation with regard to the credits found in the nature of share capital and share premium - On perusal of the facts available on record, we find that the assessee has filed enormous details in respect of subscribers to the share capital and the evidences filed by the assessee categorically proves that subscribers to the share capital are companies having financial position to establish creditworthiness. Therefore, considering the facts and circumstances of the case and also relying upon the case laws discussed above, we are of the view that the AO was erred in making addition towards share capital and share premium u/s 68 of the Act. CIT(A), after considering relevant submissions has rightly deleted the addition made by the AO towards share capital and share premium. We do not find any error or infirmity in the order of the CIT(A); hence, we are inclined to uphold the findings of the CIT(A) and dismiss the ground taken by the revenue.
Addition on account of closing stock u/s 69 - difference price of gold and jewellery as per Jilaba Software and books of accounts maintained in tally software - Addition un-explained closing stock’ on the basis that the column in the Jilaba Software represent Purchase Price - HELD THAT:- In absence of any defects pointed in books, and also when the search operation could not establish any unaccounted stock, merely for the reason of difference in price of stock items in one software which is used for monitoring stock movement, such a huge addition cannot be made towards unexplained investments in stock, that too when assessee has clarified the said difference and also the software developer clarified that the data in Jilaba software cannot be considered as true. Therefore, we are of the considered view that the AO was erred in making addition towards unexplained stock.
AO has made addition for the sole reason it the valuation of few top items of closing stock (Minus date ‘Null‘) on the basis of value in Jilaba data was examined. AO has misconstrued the column sale value so as to arrive at purchase cost of stock, as the assessee had explained the same as per which the name itself suggest that it is not a purchase cost. The Assessing Officer’s opinion that “the sale value shown is constant and hence it is purchase cost in case of closing stock” and accordingly assessing officer made addition on the basis of total of Column of all items, gets contradicted by the actual data as reproduced below, i.e. there are many cases where value of the Tag Key is changing and hence cannot be construed as purchase cost.
CIT(A), has apprised the facts in right perspective before coming to the conclusion that the AO was erred in making addition towards difference stock u/s 69 - DR has-not been able to point out any discrepancy during the hearing of the above appeal nor has been able to contradict the fetter submitted by the Assessee from the jilaba software company, Clearly stating that the in the Jilaba software, cannot be considered as purchase price as contended by the AO - we are of the view that the AO was erred in making additions towards unexplained stock u/s 69.
Addition on account of loans u/s 68 - HELD THAT:- We find that the Id. CIT(A) thoroughly examined the issue in the light of facts brought out by the assessee and also various case laws brought to his knowledge before coming ‘to the conclusion that the assessee has produced all the required evidences, has paid: interest, deducted TDS and repaid the loans during the same financial years and as the AO has not brought on any evidance except the said statement. Therefore, we are of the considered view that, the AO was erred in making addition towards unsecured loan u/s 68 of the Act, when all three ingredients provided in said section has been proved with necessary evidences - DR failed to bring on record any evidences to controvert the findings of Id. CIT(A).
When addition is made on the basis of third party statements, the AO ought to have furnished such statements for the assessee for its rebuttal. In this case, the AO had made additions without confronting such statements in violations of principles of natural justice.
We find that just because the bank statement of M/s. Halduar showed numerous transactions, it could not be held that the said company did not have credit worthiness especially when the said company was an NBFC company and would not like to keep its funds blocked in the direct account, when it could easily utilize its funds for earning income as the Companies are compulsorily required to keep funds in current account on which no Interest is received. We further noted that just because the said company was taken over at much reduced price it cannot be said that the said company lacked credit worthiness especially when the company not only had proved the source of its fund but source of source also. There may be several reasons due to which the directors are forced to sale the companies and adhering to strict RBI guidelines in case of NBFC companies is one of them.
We are of the considered view that the said loan amount could not be added under the first proviso to Section 68 as also that the identity, creditworthiness and genuineness of the transactions are proved. Hence, we direct the AO to delete the addition on account of loan received from M/s. HLFPL in both the years. - Decided in favour of assessee.
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2018 (12) TMI 1926
Denial of deduction u/s.80P - interest income received by the assessee from Nationalised Banks - HELD THAT:- The Pune Bench of the Tribunal in the case of Shri Laxmi Narayan Nagari Sahakari Pat Sanstha Maryadit [2015 (8) TMI 1085 - ITAT PUNE] has allowed deduction u/s 80P of the Act in similar circumstances in the contrary views expressed in Tumkur Merchants Souharda Credit Cooperative Ltd. [2015 (2) TMI 995 - KARNATAKA HIGH COURT] allowing the deduction u/s. 80P on interest income and the Hon’ble Delhi High Court in Mantola Cooperative Thrift Credit Society Ltd. [2014 (9) TMI 833 - DELHI HIGH COURT] not allowing deduction u/s.80P on interest income earned from banks under similar circumstances. Both the Hon’ble High Courts have taken into consideration the ratio laid down in the case of Totgar’s Cooperative Sale Society Ltd. [2010 (2) TMI 3 - SUPREME COURT]. There being no direct judgment from the Hon’ble jurisdictional High Court on the point, the Tribunal in Shri Laxmi Narayan Nagari Sahakari Pat Sanstha Maryadit (supra) preferred to go with the view taken in favour of the assessee by the Hon’ble Karnataka High Court in the case of Tumkur Merchants Souharda Credit Cooperative Ltd. (supra).
Thus respectfully following the precedent, we overturn the impugned order in not allowing deduction u/s.80P on the interest income and direct to grant deduction on such interest income. - Decided in favour of assessee.
Disallowance u/s. 40(a)(ia) - assessee paid commission to Pigmy agents - HELD THAT:- There can be no reason to stop the assessee from taking a fresh legal plea before the Tribunal which was inadvertently not taken up before the ld. CIT(A). Since this matter has not been examined by the ld. CIT(A) on merits, we are of the considered opinion that it would be in the fitness of things if the ld. CIT(A) is directed to examine the assessee’s case on this issue. Needless to say, the assessee will be allowed reasonable opportunity of hearing.
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2018 (12) TMI 1925
Request not to adjudicate the matter - HELD THAT:- On perusal of the documents submitted along with the papers of chargesheet and the case diary, his request for now not to adjudicate the matter is being acceded to.
Let the report of further investigation be submitted to this Court on 08.01.2019. Investigating Officer shall aim to complete this investigation on or before 30.01.2019. Further request on this count shall not be entertained.
The matter is posted now on 08.01.2019 for taking stock of the situation. Matter shall be treated as part heard on a joint request of both the sides.
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2018 (12) TMI 1924
Allocation of voting share to the CoC, as per the agreement - HELD THAT:- The RP could not have allocated voting share to the Capri Global Capital Limited by taking total loan amount of all the three corporate debtors whereas only one of them is involved in the present proceedings. The CoC would tilt in favour of Capri Global as against the voting share of Home Buyers’ if the whole loan amount of three companies is clubbed.
List for further consideration on 15.01.2019.
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2018 (12) TMI 1923
Valuation of imported goods - Star Aniseeds - undervaluation of goods - rejection of declared value based on contemporaneous value - invocation of principle of sampling - demand of differential duty alongwith interest and penalty - HELD THAT:- The petitioner herein had imported vide as many as 59 bills of entry. The authority had some material to doubt the truth or accuracy of two of the transactions. The respondent chose to invoke the principle of sampling and determine all the 59 transactions on this basis. This is clearly not correct. The imported goods are agricultural commodities. It may not be anybody's case that the value of the goods prevailing in one month would be the same over a period also. Therefore, on the strength of some materials obtained in respect of a few transactions, the respondent could not have determined the value of the remaining 57 transactions also. Only in Statistics and Psephology, the sampling methods are adopted. In matters having serious civil and penal consequences, such sampling methods should not be adopted.
There are no hesitation to hold that the approach adopted by the respondent does not conform to the statutory procedure laid down in the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. As already pointed out as per Rule 12, before passing an order of rejection, the authority must first ask the importer for further information. In this case, there is nothing on record to show that this Step-1 was performed. Once the declared value is rejected, the next step is to proceed sequentially in accordance with Rules 4 to 9. The respondent did not do so. As already shown, the respondent by not furnishing the authenticated copies of the documents with true translation has committed gross violation of the principles of natural justice.
The matter is remitted to the file of the respondent to proceed afresh in accordance with law - petition allowed by way of remand.
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2018 (12) TMI 1922
Interest on delayed refund - reversal of Cenvat credit on the inputs laying in stock work in progress - N/N. 23/2004-CE dated 09.07.2004 - HELD THAT:- In this case in pursuance to Notification No.23/2004-CE dated 09.07.2004 the tractors manufactured by the appellant became exempt from payment of duty. Therefore, appellant was directed to reverse the Cenvat credit through PLA for input laying in stock, work in progress and contained finished goods. Admittedly, at the time of availment of Cenvat credit the tractors are dutiable. Therefore, they were entitled to take Cenvat credit of inputs and capital goods.
The appellants are entitled to pay interest from the date of payment of deposit, till its realization - appeal allowed.
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2018 (12) TMI 1921
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial debt or not - Guarantee or not - existence of debt and dispute or not - whether the undertaking of the Corporate Debtor to purchase the loan in part or whole in pursuance of clauses 2 and 4.2 of the Loan Purchase Agreement (Annexure A/ 5) amounts to guarantee within the meaning of Section 126 of the Contract Act? - whether the Corporate Debtor by executing the Promoter's undertaking, deed of pledge and undertaking dated 27.03.2015 as an additional contractual comforts providing that the Corporate Debtor undertook to arrange for funding any cost overrun in the project and shortfall in payment to lenders in the event of termination of the Concession Agreement would arnount to 'Guarantee'?
HELD THAT:- There is no doubt left that Concession Agreement was terminated by the NHAI on 25.05.2018 resulting in the emergence of right provided in the Promoter's Undertaking, Deed of Pledge and the Corporate Debtor undertaking dated 27.03.2015 (Second Promoters Undertaking).
A bare perusal of Section 126 of the Contract Act makes it patent that it demystify a contract of guarantee to mean a contract to perform the promise, or discharge the liability of a third person in case of his default. The parties involved are known as 'surety' 'principal debtor' and the 'creditor'. A contract of guarantee involves three parties: creditor, surety, and principal-debtor. A contract of guarantee must, therefore, involve a contract to which all those parties are privy. A guarantee is an undertaking to indemnify, if some other person does not fulfil his promise. The liability under a contract of guarantee is conditional on the default of the principal-debtor, and hence does not amount to a 'promise to pay' - It is evident from the facts of this case that Principal Debtor are EIIL and DHPL. The Corporate Debtor is the 'Surety' and the applicant is 'Creditor'. The essential ingredients of contract of guarantee are also fulfilled as is patent from the preceding paras. As per various clauses surety has stood guarantee for the facilities given in case of default by the Principal Debtor. The default has occurred and the amount is recoverable from the Corporate Debtor. If that be so then the Resolution Professional was not justified to decline the claim made by the applicant.
It may be true that every security interest would not be a guarantee but in the present case as already held that 'NonDisposal Undertaking' coupled with other would amount to Guarantee.
A 'financial creditor' is a person to whom financial debt is owed and the financial debt means a debt along with interest which is disbursed against consideration for the time value of money. The financial debt in the present case is the amount of liability in respect of any of the guarantee as referred in clauses (a) to (h) of Section 5 (7) of the Code. Therefore, any amount raised under any other transaction which has the commercial effect of a borrowing would be considered as financial debt as is specified by Section 5 (8) (f) of the Code.
The Corporate Debtor is liable to repay the amount granted by the ICICI Bank Limited to Era Infrastructure (India) Limited and Dehradun Highways Project Limited, as a Financial Debt as per the provisions of the Code - Application allowed.
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2018 (12) TMI 1920
Disallowance u/s 14A r.w.r. 8D - Mandation of recording satisfaction - HELD THAT:- Whether it is obligatory on the part of the A.O to record his satisfaction as to why the claim of the assessee in respect of the expenses incurred for earning of the exempt dividend income was not to be accepted is no more res integra and has been settled by the Hon’ble Supreme Court in the case of Godrej & Boyce Manufacturing Company Ltd. Vs. DCIT & Anr.[2017 (5) TMI 403 - SUPREME COURT]
The Hon‟ble Apex Court in its aforesaid order had observed that it is obligatory on the part of the A.O to record his satisfaction that having regard to the accounts of the assessee as placed before him, it was not possible to generate the reasonable satisfaction with regard to the correctness of the claim of the assessee - It was observed by the Hon‟ble Apex Court that it was only after the A.O had recorded his dissatisfaction as regards the correctness of the claim of the assessee that the provisions of Sec.14A(2) and (3) r.w. Rule 8D could be invoked.
Claim of the assessee as regards the expenditure incurred in relation to income which does not form part of the total income under the I.T Act was rejected by the A.O in the assesses own case for the immediately preceding year viz. A.Y. 2011-12. However, on appeal the Tribunal had vacated the disallowance that was made by the A.O under Sec. 14A r.w. Rule 8D de hors recording of such satisfaction on his part, by relying on the judgment of the Hon‟ble Supreme Court in the case of Godrej & Boyce Manufacturing Company Ltd. Vs. DCIT & Anr.[ supra] - Decided in favour of assessee.
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2018 (12) TMI 1919
Seeking permission of this Court to withdraw this Writ Petition - HELD THAT:- Recording the submission and the endorsement made by the learned counsel appearing for the petitioner, this Writ Petition is dismissed as withdrawn.
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2018 (12) TMI 1918
Seeking permission to withdraw the present writ petition - HELD THAT:- It is the discretion of the petitioner to withdraw the writ petition, permission is granted. The learned counsel for the petitioner has also made an endorsement in the bundle.
The writ petition is dismissed as withdrawn.
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