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Showing 101 to 120 of 1453 Records
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2021 (3) TMI 1353 - SUPREME COURT
Murder - mental cruelty and there was demand of dowry - offences punishable under Sections 498A and 302 read with 34 of the IPC - reversal of acquittal and thereby convicting the appellant - HELD THAT:- It is observed, after following the decision of this Court in the case of KULDEEP SINGH VERSUS COMMISSIONER OF POLICE & ORS. [1998 (12) TMI 627 - SUPREME COURT], that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.
Applying the law laid down by this Court in various decisions to the facts of the case on hand and the findings recorded by the High Court, the High Court has specifically observed and held that the finding recorded by the learned trial Court discarding and/or not believing the dying declaration (Exhibit P5) is perverse and contrary to the evidence on record. The High Court has given cogent reasons while believing dying declaration (Exhibit P5) and has also considered in detail what is stated in the later dying declaration (Exhibit P5), vis-à-vis, the medical evidence and the injuries sustained by the deceased. Therefore, as such, the High Court has not committed any error in reappreciating the entire evidence on record and thereafter interfering with the judgment and order of acquittal passed by the learned trial Court, having found the finding recorded by the learned trial Court perverse.
A somewhat similar submission was made before this Court in the case of SANTOSH VERSUS STATE OF MAHARASHTRA [2015 (4) TMI 1336 - SUPREME COURT]. In the case before this Court, it was contended on behalf of the accused who poured kerosene on the deceased and set her ablaze by matchstick that thereafter they tried to save the deceased by pouring water on her and therefore it was contended on behalf of the accused that by that conduct it cannot be said that the intention of the accused was to cause death of the deceased.
Therefore, after pouring kerosene on the deceased and thereafter setting her ablaze, thereafter merely because the accused might have tried to extinguish the fire will not take the case out of the clutches of clause fourthly of Section 300 of the IPC. The act of the accused pouring kerosene on the deceased and thereafter setting her ablaze by matchstick is imminently dangerous which, in all probability, will cause death. Therefore, the High Court has rightly convicted the accused for the offence under Section 302 IPC.
Appeal dismissed.
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2021 (3) TMI 1352 - ITAT COCHIN
Deduction u/s 80P - HELD THAT:- A perusal of the decision of the Hon'ble Supreme Court in the case of The Mavilayi Service Co-operative Bank Ltd.[2019 (3) TMI 1580 - KERALA HIGH COURT] clearly shows that the Hon'ble Supreme Court has set aside the decision of the Full Bench of the Hon'ble Kerala High Court in the case of The Mavilayi Service Co-operative Bank Ltd. (supra).
Hon'ble Supreme Court has also further explained the decision in the case of Citizen Co-operative Society Ltd. in so far as the deduction that is given without any reference to any restriction or limitation cannot be restricted or limited by implication. In the circumstances in respectful obedience to the principles laid down by the Hon'ble Supreme Court in the case of The Mavilayi Service Co-operative Bank Ltd. (supra) the AO is directed to grant the assessee the benefit of deduction under Section 80P as claimed.
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2021 (3) TMI 1351 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Personal Guarantors - existence of debt and dispute or not - HELD THAT:- It is seen from Part - III at SI. No. 13 of the Application that the Personal Guarantor has executed the Deed of Guarantees dated 31.08.2005, 29.12.2009 & 19.12.2013 and the said Deed of guarantees is enclosed along with the typed set filed along with the Application - the Demand Notice which was issued under Rule 7(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 to the Personal Guarantor on 22.10.2020 is also placed on record.
The Learned Counsel for the Applicant had filed rejoinder to the Counter wherein the Applicant refuted the allegations made by the Guarantor and stated that the personal guarantor is projecting the case of the borrower company and raised several pleas available to the borrower which is not maintainable. In this case, the borrower's liability has been adjudicated and he is made liable. In addition to that, the Personal Guarantor has not preferred any appeal against the decree passed by Hon'ble DRT and the said decree has become final. Further, the CIRP proceedings against the said Corporate Debtor is pending in IBA/624/2019 before this Tribunal. Hence, the Applicant is seeking to admit this application as per the facts stated in the application.
All the defences raised by the Corporate Debtor will be considered at the time when the RP files his report under Section 99 of IBC, 2016 and when the matter is taken up for admission or rejection under Section 100 of IBC, 2016.
Application admitted.
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2021 (3) TMI 1350 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - financial creditor (Non-Banking Financial Company) - existence of debt and dispute or not - HELD THAT:- It is patent that all requirements of Section 7 of the Code for initiation of Corporate Insolvency Resolution Process by a Financial Creditor stand fulfilled. In that regard, the application is complete as per the requirements of Section 7 (2) of the Code and other conditions prescribed by Rule 4 (1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.
The Hon'ble NCLAT in the case of State Bank of India v. Athena Energy Venture Pvt. Ltd. [2020 (11) TMI 800 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI] has expressed its disagreement with the view taken earlier in the case of Dr. Vishnu Kumar Agarwal Vs. M/s Piramal Enterprises Ltd. [2019 (2) TMI 316 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] that CIRP against the corporate guarantor and the borrower cannot commence simultaneously and therefore the rationale in Piramal judgement is no more a precedent. Hence, the ground raised by the respondent that the present petition is not maintainable.
In order to allow any application under Section 7 of the Code, the applicant has to proof that the application is maintainable as the applicant is a ‘financial creditor’, and the debts claimed in the application come within the purview of "financial debt" as defined under the Code. If this is applied to the to the case in hand, it can be seen that there is existence of Loan facility of ₹ 16,00,00,000, Disbursal of Loan facility of INR 13,35,00,000/- and existence of Default of ₹ 7,94,47,080/-. Hence, the present petition is complete.
A default amounting to lacs of rupees has occurred within the meaning of Section 4 of the Code and the application under sub section 2 of Section 7 is complete; and no disciplinary proceedings are pending against the proposed Interim Resolution Professional. Thus, the application warrant admission as it is complete in all respects - application admitted - moratorium declared.
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2021 (3) TMI 1349 - SUPREME COURT
Promotion to the IAS in accordance with the vacancies for 2015 - reconvening a meeting of the Selection Committee and thereafter, to reconsider the first Respondent - whether the first Respondent was correctly denied selection to the IAS having regard to the fact that a disciplinary penalty had been imposed upon him on 29 September 2011? - HELD THAT:- The UPSC has submitted that the DOPT Guidelines apply to the constitution of Departmental Promotion Committees for the purpose of promotion, whereas, in matters relating to selection of officers from the state civil services to the IAS, the UPSC Guidelines which have been framed in exercise of powers Under Article 320 of the Constitution would have to be considered.
It was necessary for the High Court to do so since it was seized of proceedings Under Article 226 of the Constitution. The High Court having not carried out the exercise, the impugned judgment is set aside - appeal disposed off.
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2021 (3) TMI 1348 - ITAT AHMEDABAD
Restoration of the appeal which was dismissed for default since none appeared on 02.07.2019 on behalf of the appellant - HELD THAT:- Explanation given by the appellant for not been able to appear before the Tribunal on behalf of the assessee as appellant had received the notice of hearing for 24-5-2019 but unfortunately there was no sitting of the Bench on the same date due to summer vacation observed from 20th May, 2019 to 31st May, 2019.
Appellant had not received the notice of hearing fixing the hearing on 2-7-2019 and, therefore, the Authorised Representative Shri Rajesh C. Shah, C.A. could not attend the same. The Authorised Representative is also not a regular visitor of the Tribunal and, therefore, he had no such instruction, too.
The above explanation seems to be genuine and hence the order is recalled. Registry is directed to fix the matter for hearing on 05.04.2021. Since both the parties are present before us issuing notice in confirming fixing on the date of hearing is hereby dispensed with.
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2021 (3) TMI 1347 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - pre-existing dispute or not - dishonor of cheque - appropriate forum - HELD THAT:- The E-mail communications between the operational creditor and the Corporate Debtor clearly establishes the fact that there was pre- existing dispute between both the parties. The E-mail communication trail starting from date 28.02.2018, 03.07.2018, 05.07.2018 till 26.09.2018 between the Operational creditor and corporate debtor substantiate the fact that there was delay in supply of material to the Corporate Debtor due to which the Corporate Debtor was forced to purchase the goods at a higher price from the other sellers. The fact that a meeting was called upon on dated 16.02.2018 to address the issues relating to delay in supply and debit notes being issued by the corporate debtor substantiate the fact that there was a pre-existing dispute between the parties prior to the issuance of demand notice.
It is clear from the decision of Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited [2017 (9) TMI 1270 - SUPREME COURT] that the dispute must exist before the receipt of demand notice. Be that as it may, on appraisal of the arguments advanced by the Ld. Counsels, it emerges that there were disputes existing prior to the issuance of the Demand Notice. The E-mail communication trail starting from date 28.02.2018, 03.07.2018, 05.07.2018 till 26.09.2018 between the Operational creditor and corporate debtor substantiate the fact that there was delay in supply of material, the same was duly acknowledged by the Operational Creditor in the Email communications.
The operational creditor regarding the issue of dishonoring of cheque has the option to file Criminal proceedings under section 138 of Negotiable Instruments Act, 1881, before the appropriate forum for the recovery of the same.
Since there is a preexisting dispute between the parties, we have no option but to reject the prayer of the Operational Creditor to initiate proceedings under Section 9 of IBC, 2016 - Application dismissed.
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2021 (3) TMI 1346 - NATIONAL COMPANY LAW TRIBUNAL , CHANDIGARH BENCH
Approval of Resolution Plan - Section 31 of the IBC - HELD THAT:- It is a matter of record that the main petition i.e. CP (IB) No. 122/Chd/HP/2019 was admitted on 23.12.2019 and IRP was appointed, who invited claims by making public announcement in Form A and the last date for submissions of claims were mentioned as 05.01.2020. However, the applicant has submitted its claim on 18.11.2020 in accordance with Regulation 7(1), much beyond the stipulated time. It is matter of record that RP has already issued IM to resolution applicant on 17.10.2020.
The claim made after the resolution plan has already been received by the Resolution Professional. At that belated stage, if such type of applications are allowed, the resolution plans already received by the COC from the prospective resolution applicants, may get failed, as those are filed on the basis of Information Memorandum (IM). The Prospective Resolution Applicants submitted their resolution plan on the basis of their financial capacity and availability of funds - If such claim is accepted, then the Resolution Applicants have to make corrections in their plans, that apart, RP has to make corrections in the IM and its report, correction in the stakeholder list, etc., for which RP has to take permission from this Adjudicating Authority, which may further delay the CIRP. Moreover, CIRP cannot be allowed/extended beyond upper limit of 330 days, in that event the corporate debtor would be compelled to go for liquidation.
There is every likelihood that the Resolution Applicants may withdraw their plan, as it will be a burden with other huge claims of the creditors, which they might have not planned earlier, while working out the resolution plan based on the Information Memorandum. Thus, under such situation, the corporate debtor may be pushed for liquidation - Application dismissed.
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2021 (3) TMI 1345 - CESTAT AHMEDABAD
Levy of service tax - Banking and other Financial Services or not - External Commercial Borrowings obtained from Germany - reverse charge mechanism - revenue neutrality - extended period of limitation - HELD THAT:- Appellant as manufacturer of dutiable goods who has obtained Loans in form of “External Commercial Borrowing [ECB]” from “Lender Banks” of Federal Republic of Germany, as per agreements on consideration of Management Fees, Commitment Fees and repayment of interest for ECB received by them. Adjudicating authority has confirmed Service Tax demand of ₹ 2,96,70,103/- with interest and equal penalty imposed for Banking and other Financial Services under RCM - the levy of Service Tax was on “Taxable Services” provided or to be provided at the material time and it was being collected from Service provider u/s 68(1) of Finance Act 1994 by Forward Charge and it was collected from Service Recipient under Reverse Charge u/s 66A of Finance Act 1994 read with Section 68(2) of Finance Act 1994 and Notification No. 30/2012-ST dated 20.06.2012 as amended and Rule 2(1)(d)(i)(G) of the Service Tax Rules 1994.
Appellant has received services, i.e.“Banking and other Financial Services” from Lender Banks in Federal Republic of Germany. For purpose of Service Tax levy, charges for providing such actual Taxable services recovered by Lender Banks from Assessee are gross amount charged by the Service Provider for such service provided or to be provided.
Service Tax is levied on transactions of “Taxable Services” between Service Providers and Service Recipients under forward charge or reverse charges, as applicable in appropriate cases. Hence, it is essential first to ascertain who is the Service Provider and who is the Service recipient before considering one’s liabilities on the Taxable Services in question. In the present case, we find that Service Tax is confirmed on the Insurance premium amount paid to HERMES by the lender Banks in Germany for providing Insurance cover to the lender Banks in Germany, which lender Banks have recovered from Appellant. However, Appellant claims it not liable to Service Tax as Appellant has not received Services provided by HERMES and service receiver are Lender Banks in Germany and hence Service Tax is not attracted under Finance Act 1994 - in the facts of this case, if Appellant as a Borrower defaults in making repayment of the Loan Amount to Lender Banks, Insurance cover provided by HERMES to Lender Banks would operate in favour of Lender Banks. These facts are available on record in loan agreements. The appellant is liable to pay Service Tax under RCM or not in respect of the amount paid by Appellant to Lender Banks towards all HERMES premium charges during the period in question, is the question to be decided on merits, in the facts of this case.
Extended period of limitation - suppression of facts or not - HELD THAT:- There is nothing on record to show that any suppression of facts or illful misstatement were made on the part of the Appellant who has filed periodical ST-3 return regularly and disclosed all necessary details as required. In this circumstances charge of suppression or willful misstatement with intention to evade Service Tax can not be alleged against Appellant. For this reason no mala fide can be attributed to appellant. Hence longer period of demand can not be invoked. No mala fide can be alleged for such issue of interpretation and hence extended period of time limitation is not invocable in the facts of this case.
Reverse Charge Mechanism - revenue neutrality - HELD THAT:- The Order-in- Original has rejected submission on Revenue Neutrality with illogical, incorrect and unjustified observation that if argument of Revenue Neutrality as a permissible defense is accepted, entire scheme of payment of taxes on reverse charge basis will become irrelevant. However, the facts of payment of substantial amount of Excise duty from PLA during the period in question can not be ignored, while considering Revenue Neutrality. Revenue has not adduced any evidence to show that Appellant had not paid disputed Service Tax with intention to evade payment of Service Tax, when it was available as credit to Appellant themselves under RCM. There are also force in the submissions of Appellant on both these points. The demand of entire Service Tax is not sustainable on time limitation.
When the Service Tax demand is not sustained, consequential interest and penalty imposed does not survive - appeal allowed - decided in favor of appellant.
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2021 (3) TMI 1344 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Classification of supply - supply of goods or supply of services - financial assistance to be received by the Appellant are covered as consideration for supply or not - exempted supply or non-taxable supply - Zero Rated Supply or not - export of service or not - reversal of input tax credit - service is classifiable under SAC 9997 as other services nowhere else classified or not - applicability of SI. No 35 of the Notification-11/2017- Central Tax (Rate) dated 28.06.2017 / Sl. No. 35 of the Notification- 11/2017-State Tax (Rate) dated 29.06.2017 / SI. No. 35 of the Notification-8/2017- Integrated Tax (Rate) dated 28.06.2017.
HELD THAT:- The Appellant is undertaking multiple activities under different categories, i.e., activities related to construction, training, etc., against the lumpsum amount paid by their Principal, which can clearly be considered as “composite supply” in terms of Section 2(30) of the CGST Act, 2017 - In the present case, the Appellant is undertaking multiple taxable supplies of services such as construction of training workshop, providing training to apprentices, unskilled workers, students of various technical institutes, etc. All these activities, which are being supplied in conjunction with each other, can aptly be said to be naturally bundled where the principal supply will be training services being provided to the various candidates as mentioned. The activities related to the construction of the training workshop can be construed as ancillary services to this principal supply, i.e., training service, provided to various candidates as the same are essential for the said principal supply.
All the activities are performed by the Appellant for the completion of the project run by their German Principal. Since the objectives of the said project is to provide the vocational/on-job training to the various candidates, like, apprentices, unskilled workers, students, etc. from various institutions and colleges to mitigate the investment related risks in developing and emerging countries. Hence, the entire gamut of activities performed by the Appellant can be construed as composite supply where the principal supply will be supply of training services to the various candidates from the selected institutions with all other supplies being ancillary and incidental to the principal supply.
Now, once the activities undertaken by the Appellant are held as composite supply where the training service being imparted to the various candidates is the principal supply, the said supply will squarely be covered under the SAC 999294 prescribed at SI. No. 600 of the Annexure to the Notification No. 11/2017-C.T. (Rate) dated 28.06.2017 and bearing the description “Other education and training services nowhere else classified”.
Since it has been established that the Appellant is providing composite services of which the training services is the principal supply, it can be said that the Appellant is undertaking the performance-based service where the said training services are supplied to individuals, such as apprentices, unskilled workers, students of various technical institutes and colleges, who can be said to be representing on behalf of the recipient, i.e., the Principal located in Germany as the Appellant are receiving the consideration/financial assistance for undertaking the aforesaid training services being provided to above-said individuals from their German Principal, therefore, it can unambiguously be said that the above-mentioned individuals whom the Appellant are rendering training services are acting on behalf of the recipient, in this case, the German Principal of the Appellant.
It is established beyond doubt that the activities undertaken by the Appellant by way of providing training services to the individuals acting on behalf of their Principal are performance-based services. Since, in this case, the said services are performed at the premises of the Appellant, which is in India, the place of supply of the impugned services will also be in India in terms of Section 13(3)(b) of the IGST Act, 2017.
Zero-rated supply in terms of Section 16(1) of the IGST Act, 2017 or not - export of service or not - HELD THAT:- The said supply of services will not be considered as export of services on account of the above findings that the place of supply of the services under question will not be outside India, and thereby, not complying with the clause (iii) of the Section 2(6) of the IGST Act, 2017, which stipulates five conditions or clauses that are required to be fulfilled for any supply of service to qualify for export of service.
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2021 (3) TMI 1343 - KARNATAKA HIGH COURT
Deduction for payment u/s 37 of the Act towards donation to CM Relief Fund - Disallowance of claim as it cannot be treated as business expenditure and not even coincidental to the business carried on by the assessee - benefit of indexation while calculating long term capital gain - HELD THAT:- The substantial questions of law involved are covered by the decision of the Supreme Court in the case of Sri Venkata Satyanarayana Rice Mill Contractors [1996 (10) TMI 2 - SUPREME COURT]
Disallowance under Section 14A read with Rule 8D - HELD THAT:- Substantial question of law involved is covered by the decision of this Court in the case of CIT –v- Karnataka State Industries and Infrastructure Development Corpn. Ltd. [2015 (11) TMI 1631 - KARNATAKA HIGH COURT]
Entitled to the benefit of indexation while calculating long term capital gain which are to be considered for the purpose of computing tax liability under Section 115JB - HELD THAT:- Substantial question of law involved is covered by the decision of this Court in the case of Best Trading and Agencies Ltd. [2020 (9) TMI 94 - KARNATAKA HIGH COURT] and decision of this Court in the case of MSR and Sons Investments Ltd. [2011 (9) TMI 1127 - KARNATAKA HIGH COURT]
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2021 (3) TMI 1342 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA
Nature of transaction - goods or service - e-goods as commercially known in the market - HSN classification - rate of GST on its sale/ supply within state - exemption from GST or not - applicability of reverse charge mechanism - If the customer is from India and paying the consideration in dollar, whether it will be allowed as exports or if not allowed as exports then whether GST is leviable? - levy of SGST AND CGST or IGST, If customer pays for the e goods in Indian rupees and goods delivered through CLOUD located outside India - In case the buyer is from India, the goods/ services are stored in CLOUD which are the servers outside India. therefore even though payment is received in rupees, it is again export of service being services are received from distantly installed servers.
Condonation of the delay which had occurred in filing of the subject Appeal - HELD THAT:- It is observed that the said delay of 20 days in filing the subject Appeal has occurred under the circumstances which appears to be beyond the control of the Appellant and accordingly, the said delay cannot be considered as intentional or deliberate on the part of the Appellant, and hence the said delay of 20 days is condoned in filing the subject Appeal in terms of the proviso to Section 100 (2) of the CGST Act, 2017.
On perusal of the subject appeal memorandum filed by the Appellant, it is observed that the Appellant have not disputed the classification of the impugned e-goods dealt with by the Appellant where the MAAR has held the same as supply of services under the SAC 998439 bearing the description “Other online contents not elsewhere specified”.
It is an undisputed fact that the Appellant are the recipient of the impugned OIDAR services procured from their foreign supplier/vendors, hence the place of supply in this case will be the location of the recipient, i.e., the Appellant, who are located in India. i.e., in the taxable territory - As per the definition of import of services, the supplier is outside India and the recipient i.e applicant is in India. The place of supply of OIDAR as per Section 13 (12) of the IGST Act is the location of the recipient of services. Therefore, all the conditions being fulfilled as the place of supply of service is in India. Therefore. the transaction qualifies for import of services. So even though the said e-goods, after being purchased by the Appellant are stored on the Cloud Servers located outside India. and the same are not downloaded by the Appellant in India. the same will be import of services. The Appellant has made the payments to the foreign suppliers i.e consideration is paid which enables him to supply them to his customers or provide access to them, the fact that he gets the right to supply it to his customers shows that there is supply by the foreign supplier to the Appellant and the Appellant gets the right to supply it further.
The transaction of purchase of e-goods from the foreign suppliers will attract the levy of IGST under the Reverse Charge Mechanism in terms of the provisions of Section 5(3) of the IGST Act, 2017 read with the Notification No. 10/2017-I.T. (Rate) dated 28.06.2017. Accordingly, the Appellant will be liable to pay IGST under reverse charge basis on the purchase of the e-goods from their foreign suppliers even though the said e-goods, after being purchased by the Appellant, are stored on the Cloud Servers located outside India. and the same are not downloaded by the Appellant in India. It is so because the said provision related to the place of supply of OIDAR services as prescribed under Section 13 (12) of the IGST Act. 2017 does not mention about how and where the services related to OIDAR are received by the recipient but mentions only of the place of the recipient.
Supply of e-goods by the Appellant to the Indian customers. from whom the payments are received in Indian Rupees, will also attract GST which leads to conclude that the place of supply of OIDAR services in the subject transaction will be in India, i.e., in the taxable territory because the recipient of the OIDAR services, i.e. the customers of the Appellant are located in India. The MAAR has further held that since both the Appellant and the recipient are located in India and the place of supply is also in India, hence, the Appellant will be liable to pay GST on the transaction under consideration - there is no case of an out and out sale, there is import of digital goods by the Appellant by which he gets the right to transfer it to his customers and as his customers are located in India, it will attract GST. As to whether it attracts SGST-CGST or IGST will depend upon the location of the customers in India- whether in or out of Maharashtra. As regards this issue under discussion, we approbate the ruling pronounced by the MAAR and reject the contention, put forth by the Appellant in as much as the supply of the subject e-goods to the Indian customers are being made through the Cloud Servers located abroad.
Export of the said OIDAR services being provided by the Appellant to their foreign customers - HELD THAT:- It is truly not possible to determine the place of supply of the subject OIDAR services without putting to the test all the seven non-contradictory conditions prescribed under explanation to Section 13 (12) of the IGST Act, 2017 with respect to the potential recipient of the subject OIDAR services. Also, the fulfillment of the conditions will be vis-à-vis an evaluation of every single transaction undertaken by the Appellant - As the evaluation is based on pure facts, it is deemed proper not to answer it.
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2021 (3) TMI 1341 - ITAT DELHI
Gain on sale of land - nature of land - AO was of the opinion that since the land in question was situated within Municipal Limits of Faridabad, thus a capital asset chargeable to tax u/s. 45 (5) - HELD THAT:- The fact is that the assessment order was framed exparte. The documents filed before us show that the assessee has entrusted his counsel to furnish evidence before the first appellate authority but a perusal of the order of the first appellate authority show that the appellate proceedings were not properly attended.
We have also given through the application for the admission of additional evidences. We are of the considered view that these documents go to the root of the matter. Therefore, in the interest of justice and fair play we deem it fit to restore the entire quarrel to the files of the AO. The assessee is directed to furnish all those documents before the AO and the AO is directed to decide the issue fresh after considering the documents and after giving a reasonable opportunity of being heard to the assessee.
Appeal filed by the assessee is treated as allowed for statistical purposes.
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2021 (3) TMI 1340 - ITAT MUMBAI
Addition u/s 69C - additions made on account of purchase from M/s. Artview Gems Private Limited holding its as "accommodation entry." - Appellant had purchased cut and polished diamonds from the aforesaid party in normal course of its business - HELD THAT:- In the present case, the assessee being in the business of manufacturing of jewellery required cut and polished diamonds as an essential material. The assessee purchased the diamonds from various entities as is evident from extracts of stock register of the assessee forming part of the paper book - AO doubting the existence of only one entity, i.e. M/s. Artview Gems Pvt. Ltd., held that the purchase of cut and polished diamonds by the assessee to be a bogus transaction and added the entire expenditure pertaining to the said transaction, under section 69C. In order to decide the issue arising in this appeal, it is relevant to analyze the provisions of section 69C.
Thus, as per the provisions of section 69C of the Act, in case the assessee fails to explain the source of expenditure or part thereof to the satisfaction of the AO, such expenditure shall be considered as unexplained expenditure and be deemed to be income of the assessee.
The documents of loans sanctioned by Merrill Lynch Wealth Management to the assessee are placed at Pages–41 & 45 of the paper book. From the aforesaid factual details forming part of the paper book, which have also not been denied by the learned DR, it is evident that sufficient funds were available with the assessee for making the payment to M/s. Artview Gems Pvt. Ltd. for the purchase of diamonds. Thus, we are of the view that provisions of section 69C of the Act are not applicable to the facts of the present case.
Further regarding the apprehension / allegation of the AO that M/s. Artview Gems Pvt. Ltd., is not a genuine entity, the AO neither discussed nor denied the submission dated 24th November 2017, filed by the entity before the AO at Mumbai, wherein the return of income for the assessment year 2015–16 of the said entity, copy of ledger account of the assessee as well as PAN details of the entity were furnished.
It is evident that the AO also has not denied the existence of said entity during the assessment year under consideration. Another basis of the AO to disallow the expenditure that caratage, clarity and colour were not mentioned in the invoice raised by M/s. Artview Gems Pvt. Ltd. also appears to be mere presumption, as the AO has not referred to any document of third-party having mention of such factors in transaction of purchase of diamonds. In view of the above findings, we find no reason to sustain the addition made by the AO and confirmed by the CIT(A), and least under section 69C of the Act. Accordingly, the grounds raised by the assessee are allowed.
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2021 (3) TMI 1339 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI COURT-V
Seeking extension of further period of 60 days from CIRP - HELD THAT:- It is noticed that COC has approved the extension. Since the CoC has approved the extension of 60 days beyond the period of 270 days, therefore, under Section 12 Sub-Section 3 of the IBC, the resolution of the C0C is approved and the period of CIRP is extended for further period of 60 days from the date of its expiry of 270 days - application disposed off.
Non-payment of electricity dues - after the initiation of CIRP, the total dues of electricity has not been paid by the applicant since the initiation of CIRP - HELD THAT:- The RP/Applicant is directed to pay ₹ 1,50,000 out of total outstanding dues of the electricity within one week from today. If the that amount is paid by the RP then respondent is directed to restore the electricity connection. List the matter on 30.04.2021.
Prayer for exclusion of period of CIRP on the ground of lockdown imposed by the Central Government/State Government commencing from 15.03.2020 till 30.06. 2020 for the purpose of counting the period of CIRP - HELD THAT:- The period on the ground of lockdown imposed by the Central Government/State Government extended from 25.03.2020 to 31.05.2020 or in some cases from 25.03.2020 to 30.06.2020. Therefore, in this matter, the period on account of lockdown imposed by the Central Government/State Government commencing from 25.03.2020 to 30.06.2020 i.e. total period of 98 days is excluded and further the extension of 90 days beyond the 180 days is approved, which was approved by the C0C by 96.4% votes, at page 37 of the paper book - application disposed off.
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2021 (3) TMI 1338 - BOMBAY HIGH COURT
Taxability - Undenatured ethyl alcohol of any alcoholic strength (including neutral and extra neutral alcohol) when used in the production of alcoholic liquors for human consumption - C Forms - F Forms - HELD THAT:- From the evaluation of various provisions of the CST Act, 1956, CST Rules, 1957, or the Goa Rules, 1973 it is clear that the subject of issuance of C and F Forms is squarely governed by the statutory provisions that prescribe not only the authorities competent to issue these forms but also the conditions subject to which such forms are to be issued. Admittedly, the OM dated 21.04.2021 is like an executive instruction. Such an executive instruction cannot interfere with the statutory provisions or introduce any additional conditions of furnishing the impugned undertaking, when in fact the statutory provisions do not provide or contemplate the issuance of any such undertaking.
The Court after analyzing and listing the conditions prescribed by the CST Act, 1956, CST Rules, 1957, and the Jharkhand Rules, 2006 proceeded to formulate the conditions that a dealer is required to fulfill before he can insist upon the State issuing the C Form. The High Court then concluded that once these conditions are fulfilled, there is a corresponding duty on the State to issue the C Forms and further, the State authorities cannot refuse the C Forms at the whims and caprice of the officers of the State. The High Court held that sometimes, over-anxious officers of the State fall in the track (sic) of looking at the nature of the transactions or looking to the uses of C Forms by the registered dealers and held that this is not permissible at the stage of issuance of C Forms. - The Court analyzed the various provisions and concluded that under the provisions of Section 8(1) of the CST Act read with Rule 8(4), a registered dealer has a right to obtain a declaration form from the prescribed authority to avail concession in payment of tax on inter-State transactions. Neither Section 8 of the Act nor Rule 12 imposes any restriction on the supply of "C” declaration form by the notified authority to a dealer registered under the Act. Under the provisions of Section 10 of the CST Act only if a person misuses the "C" form he is liable to a penalty. It is only Rule 6 of the CST (O) Rules which imposes certain restrictions on the supply of the “C“ declaration form.
It is quite apparent that the State upon perceiving that the statutory provisions may not be sufficient to protect its interests at revenue collection has virtually attempted to add to or alter the statutory provisions enacted by the Central Government. Merely styling such acts as filling the vacuum in the legislation or supplementing the legislative vacuum is not sufficient to mask the true nature of the exercise - the presumption of constitutionality that attaches to legislation does not extend to an executive act or an executive instruction like the OM in the issue.
The impugned direction and the impugned undertaking are declared ultra vires and the respondents are restraint from enforcing the same. As a consequence, it is directed that the respondents to consider petitioners' applications for issuance of C and F Forms in accord with the law but without insisting upon the petitioners furnishing the impugned undertaking - petition disposed off.
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2021 (3) TMI 1337 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The application is filed by Shri. Vishal Jitendra Patel, Director of the Petitioner Company with authorization papers. As per Section 7 of IBC, for an application preferred by the Financial Creditor for initiation of Corporate Insolvency Resolution Process, the Adjudicating Authority is required to see the existence of financial debt and ascertain the existence of default. As per the documents submitted by the Petitioner that there is a financial debt in the form of loans availed by the Corporate Debtor. The date of default is on 29.09.2015. The last date of payment by the Corporate Debtor is on 29.09.2015 and thereafter no payment was made. The last entry in 26AS of the Income Tax Statement for payment of interest is on 31.03.2016. The application is Educational Society held that Limitation Act is applicable to the proceedings under IBC.
The petition is not maintainable as time barred. As a consequence, the instant petition is rejected in terms of Section 7 of the IB Code - Petition dismissed.
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2021 (3) TMI 1336 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI
Seeking consideration of re-casted vote of TARCL - violation of principles of natural justice - HELD THAT:- The prayer sought for recast of the vote is not considered by this Adjudicating Authority. However, considering the developments in the events, taken place subsequent to the CoC meeting, the RP shall convene a fresh meeting and place before the CoC, for deliberation and approval.
Application is disposed of.
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2021 (3) TMI 1335 - MADRAS HIGH COURT
Validity of notice - HELD THAT:- Since the petitioner has come at the notice stage itself, this Court may not be inclined to entertain this writ petition. Thereupon, the petitioner's counsel submitted that all the contentions of the petitioner may be left open. The petitioner has already given reply before the second respondent.
The second respondent shall give an opportunity of personal hearing to the petitioner and thereafter, pass orders in accordance with law. I make it clear that all the contentions of the petitioner are left open and have not gone into the merits of the matter.
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2021 (3) TMI 1334 - ITAT MUMBAI
Reopening of assessment u/s 147 - eligibility of reasons to believe - Approval u/s 151 - HELD THAT:- From the perusal of the reasons recorded for reopening the assessment, as furnished to the assessee, it is a fact that the said reasons communicated to the assessee were incomplete and no where in the reasons recorded, the failure on the part of the assessee to furnish full and true information necessary for the purpose of assessment was mentioned. When this was put to ld DR, he argued that the full text of the reasons recorded would be available in the assessment folder and that whatever is relevant to be given to the assessee had been duly furnished by the ld AO. We find that the ld DR had duly furnished the full text of the reasons recorded for reopening the assessment which was also duly placed before the competent authority while seeking approval in terms of section 151 of the Act. In the said full text of reasons, omission on the part of the assessee was mentioned as a general and vague statement without specifically pointing out as to what was the clear omission or failure on the part of the assessee in not furnishing the requisite information that was necessary for the assessment.
The entire information was very much available with the ld AO in the records which alone enabled him on bare perusal, to come to a conclusion that income of the assessee had escaped assessment. Hence in this scenario, how failure or omission could be attributed on the part of the assessee. Once there is no failure on the part of the assessee in providing requisite information, then the basic premise on which the entire reassessment was framed by recording reasons, vanishes in thin air. This makes the entire reassessment proceedings void abinitio. Moreover, we also find that the ld AO had triggered the reopening only based on verification of records. This goes to prove beyond doubt that there was absolutely no tangible material available with the ld AO to form a belief that income of the assessee had escaped assessment. On this count also, the reopening of the assessment deserves to be declared as bad in law.
We further find that the sanction obtained in terms of section 151 of the Act was not provided to the assessee along with the reasons recorded despite assessee asking for the same in writing before the ld AO. This, in our considered opinion, is against the settled principles of natural justice as reopening of an assessment is an extraordinary power available to the ld AO and it should not be done in a cavalier manner.
Since the reopening in the instant case had been done beyond 4 years from the end of the relevant assessment year, approval and sanction ought to have been granted only by ld PCIT alone. Hence this is a case where satisfaction of ld Additional CIT is also obtained in addition to the approval of ld PCIT, the said approval becomes invalid in terms of section 151 of the Act. It is trite law that if the law requires an act to be done in a particular manner, more particularly acts conferring jurisdiction like the present one, then, such act has to be done in that manner alone and the same cannot be compromised in any manner whatsoever.
Since reopening of assessment is quashed for more than one reason as enumerated above, we do not deem it fit to address the other legal issues raised by the ld AR as they would be purely academic in nature.
On merits also we find that the Act provides for a specific mechanism for computation of taxable profits of an insurance company and the taxable profits of an insurance company are required to be computed under the provisions of section 44 read with First Schedule to the Act which is a self contained code in itself. Rule 2 of First Schedule to the Act specifically provides that profits and gains of life insurance business is to be computed as per surplus / deficit disclosed by the actuarial valuation made in accordance with the Insurance Act, 1938.
The consolidated Revenue Account was prepared without segregating income/ expenses for policyholders as well as shareholders. Therefore, the said Form-1 reflected the surplus/ deficit of the business as a whole (i.e.. considering shareholders" as well as policyholders" account) since in those days there was no bifurcation of the accounts of insurance companies into policyholders and shareholders accounts.
Post introduction of IRDA Regulations, 2000. IRDA. the insurance regulator, has made specific rules for presentation of insurance accounts as prescribed in IRDA (Preparation of Financial statements and Auditor's Report of Insurance Companies) Regulations. 2002. Under these norms, profit & loss of life insurance company is divided into a technical account (policy holder's account represented in Form A-RA) also called as revenue account and non-technical account (shareholder's account represented as Form A-PL) also called Profit & Loss A/c. The technical account deals with all the transactions relating to and includes income from premium and expenditure in relation to the Policyholders account and related investment income.
For negative reserves are nothing but discounted value of estimated future net income of the Company which cannot be brought to tax in the year under consideration. Reliance is placed on Mumbai Tribunal Judgment in the case of ICICI Prudential Insurance Co. Ltd. vs. ACIT [2012 (11) TMI 13 - ITAT MUMBAI]wherein it was held that negative reserve disclosed in Form-1 does not give rise to distributable surplus.
As per IRDA (Actuarial Report and Abstract for Life Insurance Business) Regulations. 2016, the disclosure of negative reserves in the Form-1 is not required. Hence, this further proves the assessee's contention that negative reserves in Form-I is just a disclosure requirement. For the aforesaid cumulative reasons, it is respectfully submitted that the AO be directed to delete the addition of negative reserves - Decided in favour of assessee.
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