TMI Tax Updates - e-Newsletter
June 30, 2020
Case Laws in this Newsletter:
GST
Income Tax
Corporate Laws
Insolvency & Bankruptcy
Central Excise
Highlights / Catch Notes
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GST:
Determination of value of second hand goods - Applicability of Rule 32(5) of CGST Rules,2017 - sale of Paintings bought from individual collectors and connoisseur - Antique jewellery, watches and books - Collectibles and Memorabilia - The appellant is eligible to take benefit of rule 32(5) for the products in TABLE 1 placed by them before us except items placed at 7 & 8.
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Income Tax:
Expansion of scrutiny from the ‘Limited Scrutiny’ to ‘Complete Scrutiny - Addition u/s 68 - Since the CBDT Circular issued u/s. 119 of the Act is binding on the department/AO, the AO was bound by it and without taking approval in writing from Pr CIT/CIT could not have enquired into other issues other than the issue for which the assessment was selected for Limited Scrutiny.
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Income Tax:
LTCG - valuation of the property to the DVO - Valuation report given by the DVO cannot be ignored. Since the DVO himself valued the property which is less than the value adopted for the purpose of stamp duty and registration, the same should be adopted for the purpose of determining the full value of consideration received on transfer of capital asset for computing LTCG as laid down in Sec.50C(3)
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Income Tax:
Deemed dividend u/s 2(22)(e) - effective date for determination of substantial share holding - one can file belated return with the ROC along with "late fee" as applicable, as was done by assessee and since the same was accepted by the ROC, hence, for all intents and purposes, the effective date of transaction will be the date as mentioned in the return.
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IBC:
Initiation of CIRP - Period of limitation - It is clear that on the day of filing the petition U/S 7 of the Code, there was a subsisting liability on the corporate debtor, and due to the acknowledgement of debt in writing, though the account of the corporate debtor which was classified as NPA on 15th Dec 2012, its validity got extended from time to time by acknowledgement of debt in writing and a fresh period of limitation started after the acknowledgement of debt as per provision of Sec 18 of the Limitation Act - the petition filed by the Respondent Oriental Bank of Commerce is not barred by limitation.
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IBC:
Initiation of CIRP - A combined reading of Sections 8 and 9 of the 'I&B Code' leaves no room for doubt that the payment of unpaid operational debt has to be unqualified and evidenced by electronic transfer from Bank account of the 'Corporate Debtor' to the Bank account of the 'Operational Creditor' and that the 'Operational Creditor' can initiate 'Corporate Insolvency Resolution Process' only if he does not receive payment from the 'Corporate Debtor'
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Central Excise:
Clandestine manufacture and removal - The allegation/observation of suppression of production and clandestine removal is a serious allegation and it has to be established by the investigation by affirmative and cogent evidence, which is absent in the Order –in-original except relying upon such documents and entries there in, which has been disputed by the Appellant - Demand set aside.
Articles
Notifications
DGFT-
16/2015-2020 - dated
29-6-2020
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FTP
Amendment in Export Policy of Personal Protection Equipment
GST-
F. No. CBEC-20/06/08/2020-GST - G.S.R. 418 (E) - dated
27-6-2020
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CGST
Seeks to issue notification under "The Taxation And Other Laws (Relaxation Of Certain Provisions) Ordinance, 2020" to extend due date of compliance under Central Excise Act, Customs Act, Customs Tariff Act and Finance Act, 1994 which falls during the period from "20.03.2020 to 29.09.2020" till 30.09.2020
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56/2020 - dated
27-6-2020
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CGST
Seeks to amend notification no. 46/2020-Central Tax in order to further extend period to pass order under Section 54(7) of CGST Act till 31.08.2020 or in some cases upto fifteen days thereafter.
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55/2020 - dated
27-6-2020
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CGST
Seeks to amend notification no. 35/2020-Central Tax in order to extend due date of compliance which falls during the period from "20.03.2020 to 30.08.2020" till 31.08.2020.
GST - States-
28/2020– State Tax - dated
25-6-2020
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Delhi SGST
Seeks to prescribe the due date for furnishing FORM GSTR-1 by such class of registered persons having aggregate turnover of more than 1.5 crore rupees in the preceding financial year or the current financial year, for each of the months from April, 2020 to September, 2020.
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35/2020-State Tax - dated
23-6-2020
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Himachal Pradesh SGST
Seeks to extend due date of compliance which falls during the period from "20.03.2020 to 29.06.2020" till 30.06.2020 and to extend validity of e-way bills.
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34/2020-State Tax - dated
23-6-2020
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Himachal Pradesh SGST
Seeks to amend Notification No. 21/2019- State Tax, dated the 30th May, 2019
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33/2020-State Tax - dated
23-6-2020
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Himachal Pradesh SGST
Seeks to amend Notification No. 4/2018– State Tax, dated the 30th January, 2018
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32/2020-State Tax - dated
23-6-2020
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Himachal Pradesh SGST
Seeks to amend Notification No. 76/2018–State Tax, dated the 31st December, 2018
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31/2020-State Tax - dated
23-6-2020
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Himachal Pradesh SGST
Seeks to amend Notification No. 13/2017–State Tax, dated the 30th June, 2017
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REMOVAL OF DIFFICULTIES ORDER NO.01/2020 - dated
26-6-2020
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Karnataka SGST
Karnataka Goods and Services Tax (Removal of Difficulties) Order, 2020.
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(4-C/2020)-FD 05 CSL 2020 - dated
10-6-2020
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Karnataka SGST
Karnataka Goods and Services Tax (Fourth Amendment) Rules, 2020.
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REMOVAL OF DIFFICULTIES ORDER (02/2020) - dated
17-4-2020
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Karnataka SGST
Karnataka Tax on Entry of Goods (Removal of Difficulties) Order, 2020
Income Tax-
39/2020 - dated
29-6-2020
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IT
Corrigendum – Notification No. 35/2020, dated the 24th June, 2020
Circulars / Instructions / Orders
News
Case Laws:
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GST
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2020 (6) TMI 678
Determination of value of second hand goods - Applicability of Rule 32(5) of CGST Rules,2017 - sale of Paintings bought from individual collectors and connoisseur - Antique jewellery, watches and books - Collectibles and Memorabilia - interpretation of statute - scope of phrase 'where no input tax credit has been availed on the purchase of such goods' - challenge to AAR decision - HELD THAT:- The only conclusion we can draw from the order of the AAR is that they seem to have been swayed by the fact that antique watches, painting and jewelry are valuable products which cannot be classified in the category of second-hand or used . Also the fact that there is a separate tariff heading for Antiques in the form of tariff heading code 97060000 covering Antiques exceeding 100 years seems to have influenced them. However, we wish to point out that the classification of the goods does not have anything to do with the application of rule 32 (5). The question of whether the rule will apply has to be decided independently of the fitment of the product. There is nothing in rule 32 (5) which says that it is not applicable to valuable or precious objects or objects having antique value. It is a settled principle of jurisprudence that when the words of a statute are unambiguous and only one reasonable meaning can be given to it, then the courts are bound to give effect to that meaning. Such words have to be interpreted in their natural and ordinary sense. Therefore, the term second-hand and used has to be given its ordinary meaning and nothing more is to be attributed to it especially when the legislature has not chosen to expand or contract its meaning. Antique pieces are also second-hand and used by people before they come in the market. The paintings are bought by the appellant from individual art collectors. It presupposes that the art collectors have bought it second-hand or used and then sold it to the appellant. It would be an entirely different thing if the appellant has bought the paintings from the artists themselves. However, this is not the fact before us and we go entirely by the submissions of the appellant that they have bought it from individual art collectors. If such is the case, then there are no grounds to say that they are not second-hand or used. All the categories- valuable paintings, antique watches, antique jewelry, though falling under the category of valuable goods, are at the same time also second hand or used goods and therefore they cannot be denied the benefit of rule 32(5). We feel that the term antique books is evocative enough to describe what it contains and the appellant can apply Rule 32(E) to it. The AAR has not given any ruling on collectibles/memorabilia and collectible books; the reason being given is that no specific details of such goods are given. In the grounds of appeal presented before the AAR, the appellant has described such goods as only collectibles and memorabilia and collectibles . They have not dwelt at length as to what commodities are covered in that category. The appellant has stated that collectibles and memorabilia encompasses clothing, support equipment, spectacles, accessories etc. The above description is of general nature. The appellant has not given any further description as to whether they are bought from individual art collectors or not. Also, the appellant has asked for separate ruling on collectible books and antique books. It is not known whether they are same or not. Also no specific explanation is given as to what is the difference between collectible books and antique books. The ruling of AAR has to be upheld.
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2020 (6) TMI 677
Grant of Anticipatory Bail - evasion of tax - HELD THAT:- Taking into consideration the gravity of accusation, there being no criminal antecedents of the applicant and there being no possibility of his fleeing from justice, without expressing any opinion on the merits of the case, the applicant is entitled to be released on anticipatory bail in this case - In the event of arrest of the applicant Shahzad Alam involved in the aforesaid case shall be released on anticipatory bail till the submission of police report if any under section 173 (2) Cr.P.C. before the competent Court on his furnishing a personal bond of ₹ 50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned, with conditions imposed.
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2020 (6) TMI 676
Profiteering - Frozen Green Peas - allegation that the Respondent had not reduced the selling price of the Frozen Green Peas , when the GST rate was reduced - penalty - HELD THAT:- The profiteering amount is determined as ₹ 2,33,515/- as per the provisions of Rule 133 (1) of the CGST Rules, 2017 as per Annexure-12 of the Report. The Respondent is therefore directed to reduce the prices of the above products as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017, keeping in view the reduction in the rate of tax so that the benefit is passed on to the recipients. The Respondent is also directed to deposit the profiteered amount of ₹ 2,33,515/- along with the interest to be calculated at 18% from the date when the above amount was collected by him from the recipients till the above amount is deposited. Since the recipients, in this case, are not identifiable, the Respondent is directed to deposit the amount of profiteering of ₹ 2,33,515/- as per Table-B, mentioned above and Annexure-12 of the DGAP's Report dated 23.12.2019, in terms of Rule 133 (3) (c) of the CGST Rules, 2017, along with 18% interest in the Central and the State Consumer Welfare Funds of State of Andhra Pradesh and Telangana. The above amount shall be deposited within a period of 3 months from the date of this order failing which the same shall be recovered by the concerned Commissioner CGST/SGST as per the provisions of the CGST/SGST Act, 2017. Penalty - HELD THAT:- The Respondent has denied the benefit of reduction in the tax rate to his buyers in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus resorted to profiteering. Hence, he has committed an offence under section 171 (3A) of the CGST Act, 2017, and therefore, he is liable for imposition of penalty under the provisions of the above Section. Accordingly, a Show Cause Notice be issued to him directing him to explain why the penalty prescribed under Section 171 (3A) of the above Act read with Rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him.
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2020 (6) TMI 675
Profiteering - purchase of Flat in the Devaan project of the Respondent - allegation that the Respondent had not passed on the benefit of Input Tax Credit (ITC) availed by him by way of commensurate reduction in the price of the above flat - contravention of section 171 of CGST Act - Penalty - HELD THAT:- This Authority under Rule 133 (3) (a) of the CGST Rules, 2017 orders that the Respondent shall reduce the prices to be realized from the buyers of the flats/shops commensurate with the benefit of ITC received by him as has been detailed above. Since the present investigation is only up to 30.06.2019 the DGAP is directed to further investigate the quantum of ITC benefit under Rule 133 (4) of the above Rules which the Respondent is required to pass on to the home/shop buyers w.e.f. 01.07.2019 till 30.06.2020 or till the Completion Certificate is obtained by the Respondent whichever is earlier as the project is still under execution and submit his report as per the provisions of Rule 129 (6) of the above Rules. Penalty - HELD THAT:- The Respondent has denied benefit of ITC to the buyers of the flats being constructed by him in his above project in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus resorted to profiteering. Hence, he has committed an offence under Section 171 (3A) of the CGST Act, 2017 and therefore, he is apparently liable for imposition of penalty under the provisions of the above Section. Accordingly, a Show Cause Notice be issued to him directing him to explain why the penalty prescribed under Section 171 (3A) of the above Act read with Rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him.
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2020 (6) TMI 674
Profiteering - purchase of Flat - allegation that the Respondent had not passed on the benefit of Input Tax Credit (ITC) by way of commensurate reduction in the prices - contravention of section 171 of CGST Act - penalty - HELD THAT:- The Respondent has benefited from the additional ITC to the extent of 8.73% of the turnover during the period from July, 2017 to March, 2019 and hence the provisions of Section 171 of the CGST Act, 2017 have been contravened by the Respondent as he has not passed on the above benefit to his customers and thus he has profiteered an amount of ₹ 19,23,01,682/- inclusive of GST @ 12% on the base profiteered amount of ₹ 17,16,97,930/-. Further, the Respondent has realized an additional amount of ₹ 4,06,859/- and ₹ 2,85,572 which includes both the profiteered amount @ 8.73% of the taxable amount (base price) and 12% GST on the said profiteered amount from the Applicant No. 1 and Applicant No. 2 respectively. He has further realized an additional amount of ₹ 19,16,83,441/- which includes both the profiteered amount @ 8.73% of the taxable amount (base price) and 12% GST on the said profiteered amount from the 907 flat buyers other than the Applicant No. 1 and 2. The details of the profiteered amount and the buyers have been mentioned by the DGAP in Annexure-14 of his Report dated 28.10.2019. These buyers are identifiable as per the documents placed on record and therefore, the Respondent is directed to pass on the amounts of ₹ 19,16,83,441/-, ₹ 4,06,859/- and ₹ 2,85,572/- to the other flat buyers, the Applicant No. 1 and the Applicant No. 2 respectively along with the interest @ 18% per annum from the dates from which the above amounts were collected by him from them till the payment is made, within a period of 3 months from the date of passing of this order as per the details mentioned in Annexure-14 attached with the Report dated 28.10.2019. This Authority under Rule 133 (3) (a) of the CGST Rules, 2017 orders that the Respondent shall reduce the prices to be realized from the buyers of the flats of the above Project commensurate with the benefit of ITC received by him as has been detailed above. Since the present investigation is only up to 31.03.2019 any benefit of ITC which accrues subsequently shall also be passed on to the buyers by the Respondent. The concerned Commissioner CGST/SGST shall ensure that the above benefit is passed on to the eligible flat buyers. In case the above benefit is not passed on by the Respondent the above Applicants or any other buyer shall be at liberty to approach the Haryana State Screening Committee to initiate fresh proceedings against the Respondent as per the provisions of Section 171 of the CGST Act, 2017. Penalty - HELD THAT:- The Respondent has denied benefit of ITC to the buyers of the flats being constructed by him in his above project in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and he has thus resorted to profiteering. Hence, he has committed an offence under Section 171 (3A) of the CGST Act, 2017 and therefore, he is apparently liable for imposition of penalty under the provisions of the above Section. Accordingly, a Show Cause Notice be issued to him directing him to explain why the penalty prescribed under Section 171 (3A) of the above Act read with Rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him.
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Income Tax
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2020 (6) TMI 673
Expansion of scrutiny from the Limited Scrutiny to Complete Scrutiny - Addition u/s 68 - proceedings initiated for limited scrutiny - Assessee s case was selected by CASS (computer aided scrutiny selection) for Limited Scrutiny i.e. for only one issue i.e. whether stock has been valued correctly or not but AO expanding the jurisdiction to make addition u/s. 68 which was not specified in the Limited Scrutiny notice issued u/s. 143(2) - HELD THAT:- Perusal of the order sheet does not indicate that the AO has taken the approval of the Pr. CIT/CIT for expanding the assessment from Limited Scrutiny to Complete Scrutiny. DR fairly conceded this fact after perusal of the order sheet that no approval in writing was taken by the AO for expanding the scope of assessment so as to make the addition u/s. 68 of the Act. Since the CBDT Circular issued u/s. 119 of the Act is binding on the department/AO as held by the Hon ble Apex court and High Courts, the AO was bound by it and without taking approval in writing from Pr CIT/CIT could not have enquired into other issues other than the issue for which the assessment was selected for Limited Scrutiny. Here, the AO without following the procedure has expanded his jurisdiction without approval which action of AO is held to be without jurisdiction - Addition is null in the eyes of law and, therefore, it has to be deleted - Decided in favour of assessee.
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2020 (6) TMI 672
Rectification u/s 154 - assessee did not appear before AO so he passed the section 154 - CIT(A) has dismissed the same ex parte , without going into the merits - HELD THAT:- Assessee did not get proper opportunity before the AO and the Ld. CIT(A) has passed an ex parte order. Therefore, taking note of the decision of Hon ble Supreme Court in the case of Tin Box Company Vs. CIT [ 2001 (2) TMI 13 - SUPREME COURT] wherein it was held that in case if the assessee did not get proper opportunity before AO, then the matter needs to be remanded back to AO. We set aside the orders of the Ld. CIT(A) and restore the matter back to the file of the AO for fresh adjudication after affording reasonable opportunity of being heard to the assessee.
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2020 (6) TMI 671
Deduction u/s 80P(2)(a)(i) - agricultural credit provided by the assessee is only minuscule and assessee cannot be termed as primary agricultural credit society accordingly disallowance of claim of deduction u/s 80P made by the AO was upheld by the CIT(A) - HELD THAT:- In the light of the dictum laid down by the Full Bench of the Hon ble Kerala High Court in the case of The Mavilayi Service Co-operative Bank Ltd. v. CIT [ 2019 (3) TMI 1580 - KERALA HIGH COURT] we are of the view that there should be fresh examination by the AO as regards the nature of each loan disbursement and purpose for which it has been disbursed, i.e., whether it for agricultural purpose or not. A.O. shall list out the instances where loans have disbursed to non-members of assessee-society, for non-agricultural purposes etc. and accordingly conclude that the assessee s activities are not in compliance with the activities of primary agricultural credit society functioning under the Kerala Co-operative Societies Act, 1969, before denying the claim of deduction u/s 80P(2) of the I.T.Act. For the above said purpose, the issue raised in this appeal is restored to the files of the Assessing Officer. The Assessing Officer shall examine the activities of the assessee-society by following the dictum laid down by the Full Bench of the Hon ble jurisdictional High Court in the case of The Mavilayi Service Co-operative Bank Ltd. v. CIT (supra) and shall take a decision in accordance with law. - Appeal filed by the assessee is allowed for statistical purposes
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2020 (6) TMI 670
Deduction u/s 80P(2) - reasoning of AO to disallow the claim of deduction was that the assessee was essentially doing the business of banking, and therefore, in view of insertion of section 80P(4) with effect from 01.04.2007, the assessee will not be entitled to deduction u/s 80P - HELD THAT:- There is a passing statement in the assessment orders that there have been disbursement of loans to non-members as well. In the light of the dictum laid down in the case of The Mavilayi Service Co-operative Bank Ltd. v. CIT [ 2019 (3) TMI 1580 - KERALA HIGH COURT] we are of the view that there should be fresh examination by the AO as regards the nature of each loan disbursement and purpose for which it has been disbursed, i.e., whether it for agricultural purpose or not. A.O. shall list out the instances where loans have disbursed to non-members of assessee-society, for non-agricultural purposes etc. and accordingly conclude that the assessee s activities are not in compliance with the activities of primary agricultural credit society functioning under the Kerala Co-operative Societies Act, 1969, before denying the claim of deduction u/s 80P(2) of the I.T.Act. For the above said purpose, the issue raised in these appeals is restored to the files of the Assessing Officer. AO shall examine the activities of the assessee-society by following the dictum laid down by the Full Bench of the Hon ble jurisdictional High Court in the case of The Mavilayi Service Co-operative Bank Ltd. v. CIT (supra) and shall take a decision in accordance with law. Needless to state, the assessee shall co-operate with the A.O. and shall furnish the necessary details called for. Further, the assessee shall not seek unnecessary adjournment. Appeals filed by the assessee are allowed for statistical purposes
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2020 (6) TMI 669
Applicability of section 206AA - payments made to non-resident entities - there is no scope for deduction of tax at the rate of 30%, as provided under the provisions of Section 206AA when the benefit of DTAA - HELD THAT:- Applicability of provisions of section 206AA of the Act, in cases of tax to be deducted at source, when the income is exigible to tax under DTAA and the payees are unable to provide valid Permanent Account Numbers, came up for consideration before the Special Bench, ITAT Hyderabad in the case of Nagarjuna Fertilizers Chemicals Ltd. Vs. AC IT [ 2017 (3) TMI 81 - ITAT HYDERABAD]. The question before the special bench was whether the provisions of section 206AA had overriding effect for all other provisions of the Act, whether the assessee has to deduct tax at source at the rates prescribed in section 206AA in case the payees are unable to furnish their PANs, even in cases where tax liability arises out of the treaty. DTAA provides for a rate of 10% whereas as per the provisions of Sec.206AA of the Act, the rate of tax deduction at source is 20%. Whether section 206AA starts with a non-obstante clause and therefore it overrides all other provisions of the Act including 90(2), 115A and 139A? - Special Bench held that DTAA overrides the Act, even if it is inconsistent with the Act. DTAAs are entered into between two nations in good faith and are supposed to be interpreted in good faith. Otherwise it would amount to the breach of Article 253 of the constitution. Hon ble Delhi High Court in the case of Danisco India Private Limited Vs. Union Of India Ors. [ 2018 (2) TMI 1289 - DELHI HIGH COURT] held that where reciprocating states mutually agree upon acceptable principles for tax treatment, the provision in Section 206AA (as it existed) has to be read down to mean that where the deductee i.e., the overseas resident business concern conducts its operation from a territory, whose Government has entered into a Double Taxation Avoidance Agreement with India, the rate of taxation would be as dictated by the provisions of the treaty. - Decided against revenue.
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2020 (6) TMI 668
Registration u/s 12AA and recognition u/s 80G denied - Whether order was to be passed by learned CIT(E) within 6 months from the end of the month in which the application was filed by the assessee? - HELD THAT:- As per sub-section 2 of section 12AA learned CIT(E) was required to pass the order under section 12AA of the Act within 6 months from the end of month in which the request was made by the assessee for Registration under section 12AA of the Act and therefore, the last date for passing the order under section 12AA of the Act was 30.11.2019 and learned CIT(E) has taken more than 5 month to issue the only notice dated 29.10.2019. Under these facts, we find force in the submissions of learned AR of the assessee that reasonable opportunity of being heard was not provided by learned CIT(E) and therefore, we set aside both the orders of learned CIT(E) and restore the matter back to his file for a fresh decision, after providing reasonable opportunity of being heard to the assessee. In view of this decision, we make no common on merit. Appeals of the assessee are allowed for statistical purposes.
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2020 (6) TMI 667
LTCG - valuation of the property to the DVO - AO was of the view that the capital gain had to be computed by substituting the fullm value of consideration received on transfer by the value adopted by the state government for the purpose of stamp duty - HELD THAT:- Purchaser of the property filed a letter before the Inspector General of Registration and Controller of Stamps, would not be sufficient to conclude that the value adopted for the purpose of stamp duty by the registering authorities had been disputed in an appeal revision before an authority as contemplated under Sec.50C(2)(b) of the Act. Apart from the above the AO made reference to the DVO before conclusion of the Assessment proceedings i.e., before 28.12.2018 on which date he passed the order of assessment. The letter of the purchaser of the property to the Inspector General of Registration and Controller of Stamps is dated 26.2.2019 which is after the date of reference to DVO by the AO. Thus as on the date on which the AO referred the question of valuation of the property to the DVO, there was no bar in terms of Sec.50C(2)(b) of the Act. Therefore, we are of the view that the valuation report given by the DVO cannot be ignored. Since the DVO himself valued the property which is less than the value adopted for the purpose of stamp duty and registration, the same should be adopted for the purpose of determining the full value of consideration received on transfer of capital asset for computing LTCG as laid down in Sec.50C(3) - Appeal of the assessee is partly allowed.
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2020 (6) TMI 666
Deemed dividend u/s 2(22) (e) - effective date for determination of substantial share holding - HELD THAT:- Revenue could not establish beyond doubt that the assessee was having substantial interest in CCNPL on the date of advancement of loan by CCNPL to JCTPL. On the other hand, the Ld. CIT(A) has specifically observed that as per the annual return filed with the Registrar of Companies, which is a legal and valid document as per law, the assessee was holder of only one share in CCPNL and the other shares stood transferred to the JCTPL. CIT(A) has noted that it is the mere suspicion of the AO that the assessee was having substantial share holding in the CCNPL on the date of transaction. To apply a deeming fiction, the first set of facts is to be proved beyond doubt and the deeming fiction cannot be applied on the basis of assumption, presumption or suspicion about the first set of facts. CIT(A) also rightly noted that ss per record of Registrar of Companies , the effective date of transfer of shares was May 8, 2012. That one can file belated return with the ROC along with late fee as applicable, as was done by assessee and since the same was accepted by the ROC, hence, for all intents and purposes, the effective date of transaction will be the date as mentioned in the return. Since, the revenue could not rebut the above stated facts beyond reasonable doubt, hence, CIT(A) has rightly declined to apply the deeming provisions of section 2(22) (e) - It has also been observed by the Ld. CIT(A) that in the subsequent assessment years AY 2014-15 and even AY 2015-16, in the scrutiny assessments carried out u/s 143 (3) of the Act, the AO has accepted the very transaction of shares effected in May 2012. - Decided against revenue.
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2020 (6) TMI 665
Validity of reopening of assessment - Non appearance by assessee - non-disclosure of profit on transactions at National Stock Exchange platform carried out by the assessee - Four Notices were issued by the AO but Assessee did not reply - important fact that was placed before the ld. CIT (Appeals) was that there was a fire on 9.11.2017 at the principal place of business of the assessee - HELD THAT:- We find that naturally if there is a fire then subsequent non-compliance within a short span of one month may be due to sufficient cause - non-compliance prior to that cannot be accepted in the civilized society. CIT (Appeals) has also not dealt with the issue on the merits of the case, but has merely brushed aside the arguments of the assessee and upheld the order of the AO - assessee could not get proper opportunity of explaining transactions before the lower authorities. We have given an offer to the AR to explain the transaction before the lower authorities by placing the accounts of the broker, the bank statement etc. with which he readily agreed. The purpose of making the assessment would be met if complete details are filed by the assessee before the Assessing Officer. Assessee has not co-operated before the lower authorities, precisely the Assessing Officer, we direct the assessee to deposit as a contribution ₹ 5,000/- to the Prime Ministers National Relief Fund as the public money is involved in the efforts of AO and same is wasted by non-compliance of the assessee. The learned Authorized Representative also agreed to that. There was no objection from the learned Departmental Representative, if the issue is set aside to the file of the Assessing Officer. In view of this, we direct the assessee to make the contribution as directed above on or before 30th June, 2020 and on or after 16th August, 2020 appear before AO with relevant information. - Appeal of the assessee is allowed, for statistical purposes.
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2020 (6) TMI 664
Valuation of opening stock and/or closing stock - GP rate estimation - value of closing stock to be adopted in the case of the assessee - AO noted that the G.P. rate declared by the assessee in Assessment Year 2014-15 was 9.38% and in Assessment Year 2015-16 was 9.07% and adopting the average of 9.22%, the Assessing Officer worked out the value of closing stock at ₹ 16.68 crores (approx.) - HELD THAT:- Assessee is unable to point out the basis for adopting 25% as the benchmark for working out the value of closing stock; though, the said benchmark was applied from year to year but the same has no basis. Accordingly, we find no merit in the methodology adopted by the assessee in valuing its closing stock. On the other hand, the Assessing Officer had applied the G.P. rate of 9.22% in order to compute the value of closing stock i.e. sale value less 9.22%. We are of the view that the value of closing stock as computed by the Assessing Officer needs to be accepted as such. However, same method is to be applied for valuation of opening stock, which is to be re-determined by reducing the value of opening stock by 9.22%. It is an admitted position that same rate needs to be applied to compute the value of opening stock and/or closing stock. It may also be pointed out that the value of closing stock as on the close of the year would be the value of opening stock as on the opening day of next Assessment Year. Accordingly, we hold so. The grounds raised by the assessee in this appeal are thus allowed.
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Corporate Laws
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2020 (6) TMI 663
Fraud/cheating - damaged/second hand vehicle - primary allegation of the complainant/respondent No. 2 is that all the petitioners have cheated her by giving a different vehicle, which was not booked by her and the said vehicle was second-hand defective vehicle, for which she cannot run the vehicle - HELD THAT:- The selling of vehicle by the manufacturer to the dealer and the purchase of vehicle by customer from the dealer by its own choice by executing all necessary documents and it is a purely business transaction. The dealer while selling a vehicle obviously explained the features/benefits to its customer and equally the customer by its option purchased such vehicle and such transaction cannot be termed as an inducement on the part of the manufacturer/dealer/ sub-dealer within the purview of law. In the given case, there is nothing to reflect about fraudulent or dishonest intention at the time the petitioner sold the vehicle, as the complainant/respondent No. 2 purchased the vehicle by signing all the relevant documents, got the vehicle registered and vehicle run on the road for more than a year. The vehicle was brought to the dealer for servicing upto the warranty period without any complaint and only after warranty period, there was some starting problem. The condition necessary for an act to constitute an offence under Section 415 of the Penal Code is that there was dishonest inducement by the accused. In the instant case, nothing emerges to indicate that the petitioners dishonestly induced the complainant to deliver money to them. Cheating is an essential ingredient to an offence under Section 420 of the Penal Code. The ingredient necessary to constitute the offence of cheating is not made out from the face of the complaint and consequently, no offence under Section 420 is made out. Admittedly, the complainant/respondent No. 2 has lodged her complaint before the Consumer Forum, claiming damages etc. and the said forum can suitably address the issue regarding awarding compensation for damage etc. and by filing the criminal complaint, an attempt has been made by the complainant to clock the civil dispute to a criminal nature dispute despite the absence of ingredients necessary to constitute criminal offence. Criminal proceedings are not a shortcut for other remedies - Application allowed.
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Insolvency & Bankruptcy
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2020 (6) TMI 662
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- A combined reading of Sections 8 and 9 of the 'I B Code' leaves no room for doubt that the payment of unpaid operational debt has to be unqualified and evidenced by electronic transfer from Bank account of the 'Corporate Debtor' to the Bank account of the 'Operational Creditor' and that the 'Operational Creditor' can initiate 'Corporate Insolvency Resolution Process' only if he does not receive payment from the 'Corporate Debtor' - Admittedly, in the instant case, even the payment of the admitted part of the claim amounting to ₹ 27,08,891/- has not been received by the 'Operational Creditor'. Default being in excess of Rupees One Lac would warrant initiation of 'Corporate Insolvency Resolution Process' at the instance of 'Operational Creditor'. There is no legal infirmity in the impugned order of admission passed by the Adjudicating Authority - appeal dismissed.
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2020 (6) TMI 661
CIRP process - Proposal for One Time Settlement rejected - Financial Creditor was not agreed with the proposal and on the ground that the settlement is going on some hearing dates have been adjourned - initiation of parallel proceedings under SARFAESI Act, 2002 as well as under I B Code - whether filing of parallel proceedings attracts proceedings under section 65 of I B code? HELD THAT:- The Financial Creditor can proceed simultaneously under SARFAESI Act, 2002 as well as under I B Code. Section 238 of I B Code provides that the provisions of this code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by the virtue of any such law. Thus, the non-obstante clause of the I B Code will prevail over any other law for the time being in force - Ld. Adjudicating has incorrectly held that after initiating proceedings under SARFAESI Act the Appellant i.e. Financial Creditor should be precluded from filing application under section 7 of I B Code. From the reading of impugned order it seems that as the Financial Creditor has initiated parallel proceedings. Hence, Adjudicating Authority has drawn the conclusion that the Financial Creditor fraudulently/maliciously initiated proceedings under I B Code against the Corporate Debtor - In the application under section 7 of I B Code Financial Creditor has mentioned that the Corporate Debtor has sent the notice under section 13 (2) of SARFAESI Act, 2002, thus, the Financial Creditor has not suppressed any material fact. The Financial Creditor has initiated parallel proceedings against the Corporate Debtor in SARFAESI Act as well as I B Code, only on this ground it cannot be inferred that proceedings against the Corporate Debtor are fraudulent or malicious. The Adjudicating Authority shall decide the application expeditiously as per law.
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2020 (6) TMI 660
Initiation of CIRP - Extension of period of limitation by acknowledgement of debt - Corporate Debtor failed to make repayment of its dues - HELD THAT:- A limitation can be extended based on acknowledgement in writing, provided the said acknowledgement is made before the expiration of the prescribed period of limitation for a suit or application in respect of any property or right. An acknowledgement of liability in respect of such property or right has been made in writing, signed by the party, against whom such property or right is claimed, or by any person through whom he derives his title or liability, if the acknowledgement is made before the expiry of the period of limitation, then a fresh period of limitation shall be computed, from the time, when the acknowledgement was so signed. Admittedly, in this case, the account of the Corporate Debtor was classified as NPA on 15th December 2012. The Financial Creditor has also admitted that date of default of the Corporate Debtor account is on 16th September 2012. Therefore, any acknowledgement of liability could only be made within a period of limitation; i.e. three years. It is clear that on the day of filing the petition U/S 7 of the Code, there was a subsisting liability on the corporate debtor, and due to the acknowledgement of debt in writing, though the account of the corporate debtor which was classified as NPA on 15th Dec 2012, its validity got extended from time to time by acknowledgement of debt in writing and a fresh period of limitation started after the acknowledgement of debt as per provision of Sec 18 of the Limitation Act - the petition filed by the Respondent Oriental Bank of Commerce is not barred by limitation. Appeal dismissed.
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Central Excise
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2020 (6) TMI 659
Clandestine manufacture and removal - finished goods, Iron Steel Ingot - period from March, 2007 to March, 2008 - demand based on documents recovered and statements recorded - HELD THAT:- The entries in the loose sheet might have created doubt in the minds of the Revenue, but it could not have been taken as a piece of evidence by itself. It would, at best, only create suspicion to further investigate the matter. Other evidence regarding procurement of raw material, manufacture of goods by engaging labour, usage of electricity, dispatch and transport of final goods, destination of final goods and receipt of sale proceeds etc, could have probably substantiated the allegation even if not proved with arithmetical accuracy. No such evidence has been produced by the revenue - In such circumstances, it cannot be held that the clandestine removal is proved, if not beyond doubt. The allegation/observation of suppression of production and clandestine removal is a serious allegation and it has to be established by the investigation by affirmative and cogent evidence, which is absent in the Order in-original except relying upon such documents and entries there in, which has been disputed by the Appellant. Since the department has not adduced evidence to establish suppression of production, evidence of excess receipt of raw materials and clandestine removal of the goods with reference to any enquiry made with the buyers, supplier of the raw materials, confessional statement of transporters about transport of goods etc. the demand is not sustainable. Appeal allowed - decided in favor of appellant.
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