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2021 (6) TMI 1103
Addition on account of depreciation - depreciation on intangible assets purchased by the assessee company - HELD THAT:- Issue decided in favour of assessee [2019 (10) TMI 1519 - ITAT SURAT] and by the judgement of the Hon'ble Gujarat High Court in assessee’s own case [2019 (5) TMI 1208 - GUJARAT HIGH COURT] - we delete the addition made by AO/TPO on account of depreciation - Decided in favour of assessee.
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2021 (6) TMI 1102
Rectification of mistake in the cause title - HELD THAT:- Accordingly, all the names of the respondents are incorporated, miscellaneous applications are allowed. Registry is directed to serve the notice along with copy of appeal papers to other respondents whose names have been incorporated in the cause title. All the appeals be listed together on 16th July, 2021.
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2021 (6) TMI 1101
Input Tax Credit - blocked credit or not - Input services - construction or works contract procured for the development of an Industrial area or the special maintenance expenses of the area - mechanism for apportionment of ITC between exempt and taxable supplies as in an industrial area - whether leasing of 'industrial plot' of land is exempt under N.No. 12/2017-Central Tax (Rate) but leasing of 'non-industrial plot' of land/commercial plot of land is a taxable supply? - HELD THAT:- Section 16 (1) of the CGST Act provides for entitlement of registered person to take credit of the input tax charged on any supply of goods or services or both made to him, which are used or intended to be used in the course or furtherance of his business subject to fulfillment of certain conditions such as possession of invoice, receipt of goods/service, payment of tax to Government etc. as provided under Section 16 (2) of the GST Act, 2017. However, certain inward supply of goods or services, as enumerated under Section 17 (5) of CGST Act, 2017, has been specifically barred from taking Input tax credit. These supplies may also be termed as blocked credit.
Sub-section 17 (5) carves out certain exceptions to Section 16 (1) by way of the non-obstante clause - “notwithstanding”, making it clear that the restriction imposed herein is absolute in nature as it seeks to override Section 16 (1) which entitles a registered taxpayer to avail credit on works contract services/goods or services used or intended to be used in the course or furtherance of business. Though the appellant was directed to submit copies of works contracts also, but they have not supplied the same; and it would appear from the facts of the case that they are not providing output service of works contract - it is found that input tax credit in general is not available for construction of an immovable property, in view of the above said provisions. The only exception to this provision is 'plant and machinery'. In other words the input tax credit is available to the taxpayer in respect of works contract services/goods or services used for construction of 'plant and machinery' in spite of their being an immovable property.
It is found that Input Tax Credit is not only restricted to the goods and services used for construction of immovable property (whether capitalized or not) but also restricted for those goods and services which are used for re-construction, renovation, additions or alterations or repairs, to the extent of capitalization, to the said immovable property. It is not the other way round that the Input Tax Credit is available to all the goods and services used for construction of immovable property which is not capitalized in the books of accounts. It is not the case of the appellant that said works contract is related to repair, reconstruction, renovation, etc.
The appellant's undertaking of development work of the land to be leased out to various industrial/ non-industrial users, is construction of an immovable property and any goods and services or both / works contract, used for construction of an immovable property shall attract the provisions of clauses (c) and (d) under sub-section (5) of Section 17 of the CGST Act, 2017 which specifically deny such input tax credit.
The appeal filed by the appellant is liable to be rejected for want of any merit, and hence rejected.
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2021 (6) TMI 1100
Seeking to direct the Respondents to cooperate and provide signed copy of the financial statements for FY of 2019-2020 - Section 19(2) of I&B Code - HELD THAT:- Since CIRP/Liquidation is to be completed in time bound manner, the AA cannot grant time to file Reply/Replies to various IAs filed by aggrieved Parties during the process of CIRP. It is settled position of law that in terms of provisions of Section 19 of Code, the personnel of CD, its promoters or any other person associated with the management of CD shall extend all assistance and co-operation to IRP as may be required by him in managing the affairs of CD. Therefore, in order to avoid further delay, it would be just and proper to direct the Respondents to extend the requisite co-operation to the Applicant in discharge of his functions including to provide signed copy of Financial Statements for the FY of 2019-20.
Application is hereby disposed by directing the Respondents to cooperate and provide signed copy of the financial statements for FY of 2019-2020, within a period two weeks from the date of receipt of copy of this order.
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2021 (6) TMI 1099
Conversion of free shipping bills into Advance Licence/DEPB/DFRC/Drawback shipping bills - effective date that has to be taken into account in deciding the cut-off point when the unit in question would cease to be an Export Oriented Unit and assume status of a unit under the EPCG Scheme - the relevant date would be date of in-principle approval, being 10.04.2007 or final exit order, being 01.01.2008? - Rule 12 of the Customs and Central Excise Duties and Service Tax Drawback Rules, 1995 - HELD THAT:- Rule 12 deals with the declarations to be made on shipping bills specifying the nature of the export transaction. In the present case, all shipping bills between April and end December, 2007 were free shipping bills for the reason that the petitioner had yet to receive the final order of exit. In any event, the proviso to Rule 12 states that the Commissioner of Customs, if satisfied that the exporter or authorised agent has failed to comply with Rule 12 for reasons beyond its control, might well exempt the exporter/authorised agent from the rigour of the clause. According to the petitioner, had the authorities taken it upon themselves to issue the final exit order well in time, then the petitioner would have ensured compliance with provisions of Rule 12 and there would have been no necessity to file free shipping bills as against EPCG bills.
Though Rule 12 (1) clearly vests discretion in the Commissioner to grant exemption by way of duty drawback even in respect of free shipping bills, such discretion must be extended by way of a reasoned speaking order - neither of the impugned orders dated 09.08.2019 and 02.03.2020 satisfy this requirement.
The Customs Act, 1962 is a central enactment and there must thus, be uniformity in the exercise of discretion by officers in different stations. If an officer in a particular station has thought it fit to accept an assessee’s claim in an identical circumstance, then any variation from this point of view only be after a process of detailed reasoning to justify the difference in stand.
The dichotomy in the stand adopted by the different authorities as well as the fact that there is no reasoning to support the conclusion in the impugned order, is fatal to the respondents’ case - impugned orders are set aside - petition disposed off.
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2021 (6) TMI 1098
Seeking to grant anticipatory bail - cheating and other offences - fraudulent activity in regard to the sanction of loans - HELD THAT:- A perusal of the material on record would show that basing on the complaints lodged by the I.F.C.I. alleging cheating and other offences in respect of to V.N.R. Infrastructures Limited, Hyderabad and Sri Krishna Stockists and Traders Private Limited, Rajahmundry, C.B.I., BSFC, Bangalore, registered two cases. Initially the petitioner was not made as an accused in the complaints, but in the charge sheets filed in both the cases, the name of the petitioner was shown as A.3 and A.5 respectively. The petitioner was arrested and he was released on bail in the said cases. The record further discloses that in the year 2017 itself, the S.F.I.O., issued notice to the petitioner to appear before the S.F.I.O. and in compliance of the said notice, the petitioner had appeared and his statement was recorded. In the year 2020, the S.F.I.O. again issued summons to the petitioner directing him to appear before the S.F.I.O. on 09.11.2020 and apprehending arrest in connection with the said summons, the petitioner filed Crl.P.No.5980 of 2020 and this Court granted anticipatory bail to the petitioner vide order dated 18.03.2021.
Admittedly, entire investigation has been completed and charge sheets were filed by the C.B.I., BSFC, Bangalore and the C.B.I. and seized all the documents connected to the subject loan transactions and those documents were filed along with the charge sheets. Hence, there may not be a chance of tampering with the investigation at this stage.
Considering the facts and circumstances of the case and since the petitioner has already been appeared before the S.F.I.O., in compliance with the notice, dated 18.07.2017 and his statement has already been recorded; entire investigation has already been completed and charge sheets were also filed in both the complaints, the custodial interrogation of the petitioner at present may not be required. In such circumstances, granting anticipatory bail to the petitioner on certain conditions is justifiable - petition allowed.
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2021 (6) TMI 1097
Refund of GST - Condonation of delay of 21 days in filing appeal - time limitation - HELD THAT:- In the instant case the appeal has been filed by delay of 21 days from the normal period prescribed under Section 107(1) of the CGST Act, 2017. Though the delay in filing the appeal is condonable only for a further period of one month provided that the appellant was prevented by sufficient cause from presenting the appeal is shown and the delay of more than one month is not condonable under the provisions of sub-section (4) of Section 107 of the Central Goods and Services Tax Act, 2017. With regard to delay in filing of appeal, the appellant has submitted that it was happened due to on going COVID-19 pandemic situation hence he requested for condonation of delay.
The appellant has contended that refund is not time-barred under Section 54 of the CGST Act, 2017 and stated that relevant date in case of refund of ITC on Export of Goods & Services without payment of Tax is the end of the financial year in which the refund claim arises and relevant provision of Section 54, Explanation 2, clause (e); “relevant date means - (e) in the case of unutilized input tax credit under sub-section (3) the end of the financial year in which such claim for refund arises” - Hence the last date for filing of refund application for Zero-Rated Supplies made without payment of Tax under Section 54(3)(i) read with explanation (2) clause (e) for the F.Y. 2017-2018 as an entire period was 31st March, 2020 which was extended due to COVID-19 to 30th June, vide Notification No. 35/2020, dated 3rd April, 2020 and further was extended to 31st August, 2020 by Notification No. 55/2020, dated 27th June, 2020.
As per provision of clause (a) of Explanation 2(2) of sub-section (14) of Section 54 of CGST Act, 2017 in the case of goods exported out of India where a refund of tax paid is available in respect of goods themselves or, as the case may be, the inputs or input services used in such goods - the relevant date shall be calculated as per (i), (ii) and (iii) of clause (a). Whereas, the appellant quoted the unamended clause (e) of explanation (2) of sub-section (14 ) of Section 54 of the CGST Act, 2017 which is applicable only in the case of refund of unutilized input tax credit in respect of inverted duty structure as per clause (ii) of the first proviso to sub-section (3), of Section 54 of the CGST Act, 2017.
In the instant matter the EGMs were filed for the said export consignments on 1-9-2017/29-12-2017 the meaning thereby the export goods left India on 1-9-2017/29-12-2017. As per customs procedure EGM means (Export Goods Manifest) a document which are filed by the carrier of the export consignment before the departure of the carrier (shipments, airlines, etc.,) and it is considered as proof of shipment. From the conjoint reading of Section 54(14)(2) of the CGST Act, 2017 read with Notification No. 35/2020-C.T., dated 3-4-2020 as amended vide Notification No. 55/2020-C.T., dated 27-6-2020 - it is very much clear that refund application has been filed in the instant matter beyond the period of 2 years from the relevant date.
The adjudicating authority has rightly and properly rejected the refund application on the ground of time- barred - there are no force in the contention of the appellant that the date of last date for filing of refund application for Zero-Rated Supplies made without payment of Tax under Section 54(3)(i) read with Explanation (2) clause (e) for the F.Y. 2017-2018 as an entire period was 31st March, 2020 which was extended due to COVID-19 to 30th June, vide Notification No. 35/2020, dated 3rd April, 2020 and further was extended to 31st August, 2020 by Notification No. 55/2020, dated 27th June, 2020 is within the period of limitation.
Appeal dismissed.
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2021 (6) TMI 1096
Direction to provide a copy of ECIR to the petitioners forthwith - HELD THAT:- A careful perusal of writ petition would show that respondent No.2 has been impleaded by his name, but he has not been impleaded in his official capacity, whereas the Assistant Director (Enforcement Directorate) ought to have been impleaded as respondent herein as writ is sought against Assistant Director (Enforcement Directorate) - Likewise, the petitioners have also pleaded that action of respondent No.2 in not supplying a copy of ECIR is arbitrary and irrational, but no quashing has been sought.
In that view of the matter, instead of proceeding further, two weeks time is granted to learned counsel for the petitioners to make the record straight if they are so adviced - List this matter after two weeks.
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2021 (6) TMI 1095
Seeking to give directions to the Respondents to resume uninterrupted flow of water to the Corporate Debtor so as to enable the Corporate Debtor to generate electricity, which is the business of the Corporate Debtor - HELD THAT:- The Law is very clear that supplier of goods or provider of service of the Corporate Debtor cannot stop such supply or stop to provide service but the RP has to pay the expenses to procure such supply or services to keep the Corporate Debtor as going concern.
The Respondents are directed to restart the water supply subject to payment of the transport charges as claimed as per 2014 water supply agreement and as per invoices raised by the Respondent.
Application allowed.
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2021 (6) TMI 1094
Penalty levied u/s. 271(1)(c) - addition on bogus purchases - addition sustained @8% of the bogus purchases - HELD THAT:- CIT-A correctly deleted the penalty with reference to bogus purchase addition at ₹ 3,83,388/-, as the addition was done on estimated basis.
Tax effect in this case is below the limit fixed by CBDT for filing appeals before ITAT. Revenue has tried to make out a case that since the addition was made pursuant to information from sales tax department, this penalty appeal falls in the exception carved out in the CBDT circular regarding appeals arising out of additions made pursuant to information from outside agencies. We are of the opinion that this plea is not tenable inasmuch as once revenue accepts that penalty is levied on outside agency information, the penalty levied will have no legs to stand. Revenue appeal dismissed.
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2021 (6) TMI 1093
Valuation - Statutory charges i.e. External Development Charges and Infrastructural Development Charges recovered by the Applicant from buyers and paid further to respective Government Authorities - forming part of value of taxable supplies being made by the Applicant or not - HELD THAT:- In the Appellant's case however the under relevant law viz. the HDRUA (Haryana Development and Regulation of Urban Areas) Act 1975, the External Development and Infrastructure Development charges are meant to meet, respectively, the cost of external development work to be carried out in respect of an individual infrastructure project viz. a colony, and the cost on developing infrastructure projects development in the State - As per the Act, it is charged 'per square metres of the gross area and of the covered area of all the floors in case of flats proposed to be developed by him into a colony'. Further it is to be paid 'in two equal installments. The first installment shall be deposited within 60 days from the date of the grant of the license and the second installment to be deposited within six months from the date of grant of license'. It is not related to the sale of the flats.
Similarly for the EDC the Licensee has 'to pay proportionate development charges if the external development works as defined in clause (g) of section 2 are to be carried out by the Government or any other local authority. The proportion in which and the time within which, such payment is to be made, shall be determined by the Director - Both are not related with the number of flats to be constructed/sold or are to be paid even if the some/all flats kept for personal use. Since, the 'External Development' and 'Infrastructure Development' do contribute to the value of the flats, the charges for these beyond doubt form a constituent of the value of the construction service provided to the flat owners by the Appellant. The GST shall be applicable, as also provided under Section 15(2).
Appeal dismissed.
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2021 (6) TMI 1092
Striking off the name of the company from the Register of Companies - seeking direction to Registrar of Companies, Odisha to revoke order passed by them under section 248(5) of the Companies Act, 2013 - Section 252(3) of the Companies Act, 2013 - HELD THAT:- The Registrar of Companies did not have any objection for restoration of the company's name in the register. Only they have stated to the effect that order may be passed as may be deemed fit and appropriate depending on the merits of the case - There is nothing on available records in this matter to show that the struck off company was doing its business or was in operation during the relevant time. However, the petitioner has submitted that the struck off company has not paid its income dues for the assessment years 2001-02 and 2003-04, 2004-05 and 2005-06 and the recovery proceedings are pending against them and it will be very difficult to recover the amount due if the company is struck off.
In the interest of revenue and as the struck off company is liable to consequences under the Income-tax Act, it would be just to direct the Registrar of Companies, Odisha to restore the company's name in the Register of Companies - The Registrar of Companies, Odisha, the respondent herein, is ordered to restore the original status of the company, i. e., M/s. Rajlaxmi Promoters P. Ltd., as if the name of the company has not been struck off from the register of companies with resultant and consequential actions like changing status of company from "strike off" to "active".
The name is restored - application allowed.
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2021 (6) TMI 1091
Seeking enlargement on bail - main allegation against the petitioners is that the petitioners and the others, who are family members availed loans on the basis of inflated value of the properties mortgaged - wilful diversion of funds through various group accounts - whether in the facts and circumstances of the case, bail can be granted under Section 45 (1) of Prevention of Money Laundering Act? - twin conditions satisfied or not - HELD THAT:- In view of the amendment, the twin conditions must be satisfied, who seeks bail. A reading of this provision, will take us to the twin conditions that are imposed in Section 37 of NDPS Act. The wording 'in both the Section' are verbatim similar in nature. So, this shows the real purpose and object for which, this amendment has been introduced. So, I am of the considered view that the Parliament thought it fit to treat the offences against the economy on par with the offences against the health. That is why, we see verbatim reproduction of words used section 37 in NDPS Act into the provision of Money Laundering Act.
The reason can be seen in the present day situation. At one end the economy of the country is growing and at another end, Offences against the economy, more particularly, Banking frauds are on the rise running to several Crores. The economic offences are more capable of destablishing the very sustenance of penniless Indian majority than affecting the society at large. When we approach this provision from this angle, we see more reason than one expressed in the words used. But, this is also greatly commented as draconian in nature. But as long as it remains in the Statute Book, it has to be applied with its full vigour and force - unless the petitioners satisfy the above important condition under Section 45 (1) of the Prevention of Money Laundering Act, they cannot be granted bail even though they are in custody for more than 70 days.
Entire case depends upon the documentary evidence - HELD THAT:- The question of tampering the evidence will not arise. So, according to the learned Senior counsel, continuation of detention will not serve any purpose. They are also ready to surrender their Passports; ready to abide any condition that may be imposed by this Court and also ready to co-operate with the investigation conducted by CBI as well as the Enforcement Directorate. According to them, these undertakings are sufficient enough for granting bail - Serious allegations have been levelled against these petitioners that they siphoned off the loan amount obtained from the Bank and forged documents for the purpose of laundering the money.
Considering the stringent provision, the amount involved, the modes operandi adopted, they are not entitled for Bail - bail Petitions are dismissed.
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2021 (6) TMI 1090
Seeking grant of bail - raid - illegal sale of Coderine phosphate IT - offences under Sections 8(c), 21(c) and 25 of the Narcotics, Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- This Court has considered following aspects;
(a) The role attributed to the present applicant;
(b) The applicant has been arraigned into the offence on basis of the statement of co-accused;
(c) The bottles of cough syrup has been found from the main accused;
(d) The applicant is having valid licence to deal with the medical products.
(e) Prima facie, the investigation reveals that the allegation with regard to selling of the cough syrup appears to be related to only 22 bottles.
(f) The custodial interrogation of the applicant is not required at this stage, as the applicant has co-operated with the investigation.
The applicant is ordered to be released on bail subject to the fulfilment of conditions imposed - the present application is allowed.
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2021 (6) TMI 1089
Seeking approval of the Resolution Plan - Section 30(6) of the Insolvency and Bankruptcy Code, 2016 - seeking directions for reinstatement of slots (including bilateral rights and traffic rights) to the Corporate Debtor - slots are present economic resource or are asset? - potential of generating income - HELD THAT:- Admittedly the Corporate Debtor ceased its operations from 17.04.2019. On the date of insolvency commencement i.e. on 20.06.2019, the Corporate Debtor was not in operation. It is not in dispute that the Corporate Debtor was not run as a going concern during the CIRP. Therefore, the protection of the licenses and concessions from termination or suspension would not be available to the Corporate Debtor.
In the case of IN THE MATTER OF: UNION OF INDIA VERSUS VIJAYKUMAR V. IYER, VIJAY KUMAR IYER VERSUS GTL INFRASTRUCTURE LTD., GTL INFRASTRUCTURE LTD. VERSUS VIJAY KUMAR IYER, STATE BANK OF INDIA VERSUS GTL INFRASTRUCTURE LTD., INDUS TOWER LTD. VERSUS VIJAYKUMAR IYER RESOLUTION PROFESSIONAL OF AIRCEL LTD. AND DISHNET WIRELESS LTD. & ANR., TELECOM REGULATORY AUTHORITY OF INDIA VERSUS AIRCEL LTD. & ANR. TATWA TECHNOLOGIES LTD. VERSUS VIJAY KUMAR IYER & ANR., TELECOM REGULATORY AUTHORITY OF INDIA VERSUS DISHNET WIRELESS LTD. &ANR. [2021 (4) TMI 1300 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] the spectrum continued to be with the Telecom Company during the CIRP. In the instant case the slots cannot be regarded as ‘present economic resource’ of the Corporate Debtor. That being an important factor, is squarely lacking in the case of the Corporate Debtor.
Whether the slots could be considered as an ‘asset’ of the Corporate Debtor? - HELD THAT:- Slots are airport specific and are dependent upon the Airline’s operating rights. The mechanism of allotment of slots, though integral to an operating airline, is a very complex and dynamic process upon which the entire flight schedule of an airport depends. The allotment of slots and their usage is like a constantly changing jigsaw puzzle. A single slot therefore could not be left or kept idle. The slots vacated by one Airline would have to go to another Airline for optimum utilisation of the slots and the capacity of the airport - As the guidelines would indicate the allotment of slots is not automatic and needs to be sought by the Airline twice a year respectively for the summer and winter seasons. Once the slots are not used by particular Airline or vacated by it, the same is immediately allotted to another in order to optimize airport capacity. As already indicated a slot in a Level-3 Airport could not be left idle.
No documents however been placed to substantiate and to verify the terms and conditions expressed in relation to the transfer, if any, of the slots, presently held by Air India. Even otherwise the entity / company that would take it over would inherit what the Air India presently has. It can have no claim over what Air India, or for that matter any entity, does not have dominion over. The analogy could not be extended to the Corporate Debtor, in as much as the Corporate Debtor had been divested of these slots w.e.f. 17.04.2019 when it ceased operations and was not operating / using them on the date of the insolvency commencement - The facts and circumstances would indicate that presently the slots cannot be restored to the Corporate Debtor on a historic basis. The thumb rule being ‘use it or lose it’. Be that as it may, we must remember that running an Airline, much less reviving one, is not a facile business. It involves entire gamut of complex and diverse activities from land to sky and everything in between. In the present day air travel has rather become a necessity, than a luxury considered merely a decade back. Increase in the number of Airlines would encourage healthy competition and provide a level playing field to the operators. The result would only benefit the consumer.
Considering the peculiar nature of slots allotment and its usage, the principle of slots allotment could not come within the commercial wisdom of the CoC. As already held the slots being not assets of the Corporate Debtor, the CoC’s decision on protection of historicity would not be of any help to the Corporate Debtor - The success of the Resolution Plan and its implementation is contingent upon certain future events as provided under Clause 7.6 of the Resolution Plan. Since the revival of the Corporate Debtor is dependent upon these factors, the CoC has approved the Resolution Plan taking into consideration the necessity of the conditions which are integral to the successful implementation of the Plan. Thus, the effective date also depends upon the conditions being fulfilled. Despite the effective date being uncertain the CoC has approved the same. Considering the peculiarity of the facts and totality of the circumstances, we feel it appropriate to agree with such decision of the CoC and its fiscal prudence, subject to the following.
The Resolution Plan doesn’t take into account the dues of the employees and workmen during the CIRP period in view of the fact that except for 50 employees retained as ‘Asset Preservation Team’ of the Corporate Debtor none of the other employees or workmen were under the employment of the Corporate Debtor nor did they work for the Corporate Debtor during that period. Decision in that regard appears to be reasonable based on the principle of ‘no work no pay’.
The instant Resolution Plan meets the requirements of Section 30(2) of the Code and Regulations 37 and 38 of the Regulations. The Resolution Plan is not in contravention of any of the provisions of Section 29A of the Code and is in accordance with law. The same needs to be approved as provided under Section 31 of the Code - Application allowed.
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2021 (6) TMI 1088
Seeking grant of Bail - Availment of input tax credit without any transportation of goods - Section 132(1)(b)(c)(F) & (1) read with Section 5 of Central Goods and Service Tax Act, 2017 - HELD THAT:- In the facts and circumstances of the present case and looking to the seriousness of the offence(s) alleged against the petitioner, without expressing any opinion on the merits of the case, no case is made out to grant bail to the petitioner under Section 439 Cr.P.C.
This bail application stands dismissed.
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2021 (6) TMI 1087
TP Adjustment - Arm’s length price ‘ALP’ adjustment qua interest on receivables involving its overseas Associated Enterprises ‘AEs’ - CIT-DR’s contention that the TPO as well as the CIT(A) have rightly treated the foregoing bench mark as per the short term deposit rate in the State Bank of India and therefore, the same deserves to be upheld - HELD THAT:- We find no merit in Revenue’s instant argument since such a short term deposit cannot be taken at par with an international transaction u/s.92B of the Act as the latter involves foreign currency and overseas market conditions.
In addition to this, learned lower authorities have also not adopted any comparable transaction in the very segment as well so as to come to the conclusion that the assessee’s receivables in case of overseas AEs involved more than the market practice of reasonable time period. We keep in mind all these clinching aspects and direct the TPO to delete the impugned ‘ALP’ adjustment in issue. The assessee’s sole substantive ground to this effect stands accepted in the above terms.
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2021 (6) TMI 1086
Approval of Resolution Plan - Corporate Debtor is a Micro, Small or Medium Enterprise or not - Annexure-A/1 is an Acknowledgement issued on 23.03.2015 by the Department of Industries, Government of Kerala valid for a period of 2 years which has already expired - Section 60 (5) of the Insolvency and Bankruptcy code, 2016 read with Rule 11 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- If the Corporate Debtor is a Micro, Small or Medium Enterprise is entitled to file the Resolution Plan, Section 240 A which specifically dispenses the applicability of Section 29A clause (c) to (h) in case the Corporate Debtor is a Micro, Small or Medium Enterprise as per the Amendment Act 26 of 2018. The intention behind the enactment of this provision was to grant exemptions to Corporate Debtor which are MSME(s), by permitting a promoter who is not a wilful defaulter or covered under any other specific disqualification as provided under Section 29A, to bid for the Resolution Plan of an MSME.
In the present case as per Regulation 36-A Resolution Professional Published Form G, on 17.02.2020, within 35 days i.e. on 115th day, final list of the Resolution Applicant has to be prepared by the Resolution Professional. EoI was received from 2 Resolution Applicants, out of which one was found eligible. Further the 3rd CoC decided to extent the time for submission of EOI for further 10 days and reissue the FORM G. No fresh EoI has been received - In the 10th CoC meeting dated 20.11.2020 it was unanimously approved the Resolution Plan in compliance with the provisions of the I&B Code,2016. Applicants who are also a member of the CoC was silent during the CIRP period and they want to submit the plan after the approval of Resolution Plan by the Adjudicating Authority on 08.01.2021.
As Corporate Insolvency Resolution Process is a time bound measure, value maximization has also to be in time bound manner. At this late stage, this Tribunal cannot allow this application to set aside the approved Resolution Plan and allow the applicants to submit a Resolution Plan - Application dismissed.
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2021 (6) TMI 1085
Extension of timelines for RFRP while two Resolution Plans submitted before the CoC as per the earlier timelines are for consideration, by CoC - power of CoC to keep on extending timelines beyond 330 days in the guise of maximization of value - HELD THAT:- The two Resolution Plans pending before the committee were deliberated at length and the contents known to all the CoC members. The CoC in its commercial wisdom has requested the Resolution Professional to extend the RFRP timelines beyond 330 days with a view to give an opportunity to Vedanta Limited to submit their Resolution Plan in the name of value maximization of Corporate Debtor, albeit opportunity was given to the other two resolution applicants to revise their proposal. As this being status, the CoC and Resolution Professional have taken the process into their own hands even though they cannot extend timelines beyond 330 days unilaterally without the approval of the Adjudicating Authority. This action of Resolution Professional is contrary to the letter and spirit of the Code and its Regulations.
The CoC and the Resolution Professional has categorically violated the timelines in the name of value maximization, thereby kept on extending the process beyond 330 days and CoC in its wisdom has stepped into the shoes of the Adjudicating Authority and extended the period without any rhyme or reason. The CoC has no business to extend RFRP beyond 330 days without the specific approval of the Adjudicating Authority - the Resolution Professional/CoC directed to consider the two plans received prior to last extension of RFRP timeline i.e. received before 330 days period to complete the CIRP.
Application allowed.
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2021 (6) TMI 1084
Deduction u/s 80P - Single Judge dismissed the writ petition on the ground that the petitioner had an effective alternate remedy by way of an appeal before the first appellate authority under the IT Act - HELD THAT:- We find that this is a case where the assessing authority has not applied the law as laid down by the Supreme Court on an issue that has been the subject matter of litigation for a considerable period of time. The reversal by the Supreme Court was itself of a judgment rendered by a Full Bench of this Court, which, in turn, had taken note of conflicting views expressed by Division Benches of this Court. When the law is finally settled by the Supreme Court in a contentious issue such as the one presented in the instant case, the said law has necessarily to be applied by the assessing authorities under the IT Act who are bound by it.
It cannot be the stand of the Department that an assessee, who is aggrieved by an assessment order passed ignoring the binding judgment of the Supreme Court, has nevertheless an alternate remedy by way of an appeal before the first appellate authority under the statute. An erroneous assessment occasioned by ignoring a binding judgment of the Supreme Court cannot be trivialized as an order against which an appellate remedy lies that would provide justice to an assessee.
We, therefore, set aside the judgment of the learned Single Judge, and also quash Ext. P11 assessment order in relation to the writ petitioner/assessee, and direct the 1st respondent assessing authority to re-do the assessment of the appellant society for the asst. yr. 2018-19 under the IT Act afresh, after issuing notice to the appellant assessee and after hearing the assessee in the matter. We make it clear that we have not expressed any opinion on the merits of the matter and that all contentions on merits are left open to the assessee to canvass before the assessing authority at the time of hearing. The assessing authority shall endeavour to complete the assessment as directed taking note of the judgment of the Supreme Court in Mavilayi [2021 (1) TMI 488 - SUPREME COURT] within an outer time limit of three months from the date of receipt of a copy of this judgment. With the above direction, the writ appeal is disposed.
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