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2020 (11) TMI 1096 - SC ORDER
Assessment on the basis of seized material and documents u/s 158BB(1) - HC held that Tribunal had recorded a categorical finding that addition cannot be made merely on presumption that assessee had earned undisclosed income and incurred expenses outside books of account, which need no interference being finding of fact, the appeal lacks merit and is hereby dismissed - HELD THAT:- Delay condoned. The special leave petitions are dismissed.
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2020 (11) TMI 1095 - ORISSA HIGH COURT
Shortage of Iron Ores - Presumption of existence of a prima facie case against these petitioners for commission of offence under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 - framing of charges - HELD THAT:- The crystallized judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused and the Court for the purpose is not required to appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
It becomes necessary to address the last limb of the contentions of the learned counsel for the petitioners with reference to the documents placed on record being gone through. It may be stated that said documents are not disputed. The petitioners having filed the certified copy of the order of the Revisional Authority in connection with the proceeding pursuant to the very same joint inspection and verification report before the trial court in support of that point raised for their discharge, the prosecution had nothing to dispute as to factum of passing of said order.
The shortages 3,04,568.175 MT as alleged/found in the impugned Proceedings are not only unsubstantiated but also have been found to be alleged in contradiction to state Govt.’s own records. When the figures of three sources viz. Revisionist, IBM and departmental tally with each other, allegations of shortages based on these figures cannot sustain. Revisionist’s contention that in the impugned Proceedings quantity transferred for processing/crushing from the existing stock has been accounted twice by the Department for Feb., Mar, June, July and Sept. months of year 2009 and which she has also explained with statutory returns (Annex.- F to I). Thus she has successfully demonstrated and explained where department has erred. It has added to the merit in her contention - Revisionist has produced 29,18,431 MT of iron ore, whereas only 8,49,589.56 MT can be produced from the excavated pits, as stated above there is no basis given in the impugned Proceedings or in the reply. Nor any document/ evidence in support has been given to the Revisionist or filed before Revision Authority.
The order dated 28.07.2018 which has been impugned in this revision cannot be sustained - Revision disposed off.
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2020 (11) TMI 1094 - ITAT DELHI
TP Adjustment - Comparable selection - HELD THAT:- Assessee is engaged in providing coordination and quality assurance services for the medical transcription work outsourced to Home Based Medical Transcriptionist (HMTs) and third party medical transcription service providers (suppliers) by Spryance USA, thus companies functionally dissimilar with that of assessee need to be deselected.
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2020 (11) TMI 1093 - ITAT DELHI
TP Adjustment - comparable selection - HELD THAT:- Accentia technologies Ltd - We find that the revenue shown by this comparable company is only medical transcription, billing and collection and income from coding. We do not find any product sale by this comparable company, therefore, the reason given by the learned Dispute Resolution Panel for exclusion of this comparable company is devoid of any merit. Therefore, we reverse the finding of the learned Dispute Resolution Panel and direct the learned Transfer Pricing Officer to include the above comparable company for the comparability analysis. Therefore, the ground of the learned assessing officer with respect to this comparable company for its inclusion is upheld.
ACROPETAL TECHNOLOGIES LTD - In schedule 9 the comparable company is also debited software development expenses. The learned departmental representative on this aspect could not show us that whether the company is not engaged in development of software or not. This comparable has been selected by the learned Transfer Pricing Officer and therefore he should have brought on record necessary details to show that this company is not engaged in development of the software but in the similar kind of functions as performed by the assessee. For this reason , we do not find any infirmity in the order of the learned Dispute Resolution Panel in directing the learned TPO to exclude this comparable company. Thus, direction of the learned Dispute Resolution Panel with respect to exclusion of this comparable is upheld.
E Clrex Services Limited - This company is in the business of providing Knowledge Process Outsourcing services which is not the function of the assessee. Therefore, we do not find any infirmity in the direction of the learned dispute resolution panel in directing the learned transfer pricing officer to exclude this comparable company. Thus, direction of the learned dispute resolution panel with respect to this comparable is upheld.
Infosys BPO Ltd and TCS E serve Ltd - No infirmity in the direction of the learned dispute resolution panel to exclude both these comparable from the comparability analysis on the basis of their turnover being multiple times then the turnover of the assessee.
Working capital adjustment granted by the learned dispute resolution panel despite the assessee does not bear any working capital risk - Substantial revenue of the assessee is locked into the sundry debtors. Therefore we do not find any infirmity in the order of the learned dispute resolution panel in upholding the working capital adjustment granted by the learned transfer pricing officer. Accordingly the cross objection filed by the assessee with respect to ground is dismissed.
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2020 (11) TMI 1092 - DELHI HIGH COURT
Doctrine of Frustation - Extension of effective date of termination of the contract and for hearing - seeking declaration that the Toll Tax & ECC Agreement is ultra vires Section 113 (2) (g) of the Delhi Municipal Corporation Act, 1957 - re-determination of annual/ weekly amount payable by the petitioner to the SDMC towards toll tax - suitable downward revision in the weekly/ annual remittance commensurate with the reduction in toll tax paying commercial vehicles and taking into account the tax leakages on account of free lanes - HELD THAT:- There is a serious dispute regarding the actual number of vehicles passing through the toll gates during the Force Majeure period as MCD is claiming that a large number of vehicles are passing through the said toll gates whereas claim of MEP is that lesser number of vehicles are passing through the said gates. MEP was expected under the clauses of the contract to give average weekly traffic count and to calibrate the toll collection system with the servers of MCD. To put this controversy at rest, the learned Single Judge may explore all the possibilities to arrive at a reasoned conclusion as to whether the number of vehicles passing through these toll plazas are correct or not as different figures are being claimed by the contesting parties. The said exercise is also necessary to decide two contempt petitions filed by both the parties against each other, which are pending adjudication before this Court.
In case the system of actual collection of toll tax to be deposited by MEP with SDMC after adjustment of administrative and toll collection expenses continues for some time, the SMCD will be at liberty to get the said toll plazas inspected by its inspectors/staff on regular basis and/or by continuously monitoring the said toll plazas by installing the CCTV system or any other appropriate gadgets to enable it to count the actual number of vehicles passing through toll gates and paying the toll, so as to avoid continuous bickering between the two parties on this issue and the court being unable to continuously monitor implementation of directions to deposit the amount so collected by MEP in the bank accounts of SDMC after deducting the administrative and toll collection expenses @ 7.5%. It is made clear that the excess 7.5% administrative and toll expenses for the period from 26.03.2020 till today deducted by MEP from collection of toll tax made by it is to be deposited in the bank account of SDMC within 15 days of passing of this order by MEP as the actual rate of administrative and toll collection expenses allowed to be deducted by the contractor is 50% of the agreed expenses, which comes to 7.5% and not 15% as claimed earlier by the MEP.
The Force Majeure clause stands invoked w.e.f. 26.03.2020 in terms of OM dated 18.05.2020 issued by MORTH, Govt. of India and it shall stand revoked when 90% traffic, in comparison to the traffic before lockdown period of weekly basis, stands resumed - The SDMC shall be entitled to weekly payments of Rs.20.00 crores till 25.03.2020 and after resumption of 90% traffic in comparison to the pre-lockdown period on weekly basis during pendency of the writ petition. Arrears of Rs.115.04 crores are held to be cleared without being affected by Force Majeure clause.
Application disposed off.
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2020 (11) TMI 1091 - ITAT DELHI
TP Adjustment - payment made for management related activities under CSA which has been taken at ‘Nil’ by the TPO - HELD THAT:- This adjustment is a recurring issue in assessee’s own case right from the Assessment Years 2007-08, 2009-10 and Assessment Year 2012-13 [2018 (5) TMI 848 - ITAT DELHI]. The Tribunal has remanded this issue to the file of the Assessing Officer with certain directions.
Thus, in the same lines, we direct the TPO to carry out fresh analysis and determine the Arm’s Length Price and the payments relating to other R&D task and decide the issue fresh in accordance with law. Appeals of the assessee are allowed for statistical purposes.
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2020 (11) TMI 1090 - ITAT DELHI
TDS u/s 192 or 195 - expatriate employees seconded to the taxpayer have worked as employees of the taxpayer company - reimbursement of salaries and other expenses as fees for technical services ('ITS') under section 9(1)(vii) of the Act and Fees for Included Services ('FIS')/Royalty under relevant Articles of Indo-USA and Indo- Australia Tax Treaties - Applicability of ‘fee for technical services’ - HELD THAT:- As following the decisions rendered by the coordinate Bench of the Tribunal in taxpayer’s own case for AY 2015-16 [2020 (8) TMI 410 - ITAT DELHI] in the identical facts and circumstances and by following the decisions rendered in the cases of Centrica India Offshore P. Ltd. [2014 (5) TMI 154 - DELHI HIGH COURT], HCL Infosystems Ltd. [2004 (1) TMI 16 - DELHI HIGH COURT], Marks & Spencer Reliance India Pvt. Ltd 2017 (5) TMI 1638 - BOMBAY HIGH COURT] & AT&T Communication Services (India) P. Ltd. [2018 (11) TMI 130 - ITAT DELHI] when relationship of employer and employees between expatriate employees and the taxpayer have been established in view of the Secondment Agreement duly discussed in order passed in taxpayer’s own case for AY 2015-16 (supra) and that taxpayer has duly deducted full tax u/s 192 of the Act being on the income chargeable under the head ‘salaries’, section 195 of the Act has no applicability.
Moreover, when expatriate employees seconded to the taxpayer have worked as employees of the taxpayer company, their salary has been rightly subjected to section 192 of the Act and Explanation to section 9(1)(vii) of the Act which apparently makes it clear that salary would not fall within the expression ‘fee for technical services’ has no applicability to the facts and circumstances of the case. Consequently, addition made by the AO and confirmed by the ld. CIT (A) on account of disallowance under section 40(a)(i) of the Act is not sustainable in the eyes of law and hence ordered to be deleted. Grounds determined in favour of the taxpayer.
Adjustment u/s 92CA of the Act on account of outstanding receivables from AEs - HELD THAT:- When undisputedly identical issue has already been decided by the TPO in favour of the taxpayer by not imputing any interest on outstanding receivables, the TPO in the instant case has no option except to follow the rule of consistency, as has been held by the Hon’ble Supreme Court in case of CIT vs. Shiv Sagar Estate [2002 (7) TMI 103 - SC ORDER] that when the Revenue has accepted the contention of the applicant in the earlier year, it would not be entitled to challenge that contention in subsequent years.
We are of the considered view that when AO/TPO have not brought on record any distinguishable fact they are required to follow the rule of consistency by not imputing any interest to the outstanding receivables. So, this issue is remitted back to the TPO/AO to decide afresh by following the rule of consistency. Ground determined in favour of the taxpayer for statistical purposes.
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2020 (11) TMI 1089 - ITAT DELHI
TP Adjustment - Comparable selection - exclusion of three companies, namely M/s. Accentia Technologies Ltd., M/s. Eclerx Services Ltd. and M/s. Acropetal Technologies Ltd. from the list of comparable companies - HELD THAT:- As far as the exclusion of Accentia Technologies Ltd. is concerned, we find that CIT(A) after considering the submission of the assessee has given a finding that it is engaged in rendering high end services and the nature of its activities are more in the nature of KPO services whereas the services rendered by the Assessee are of ITeS Services. He has therefore held Accentia Technologies Ltd. to be not a comparable to that of assessee.
With respect to Acropetal Technologies Ltd. and Eclerx Services Ltd., we find that CIT(A) has noted that in assessee’s own case for A.Y. 2008-09, CIT(A) had held these two companies to be functional dissimilar to that of assessee. He has further noted that there are no changes in the facts and circumstances in the year under consideration and that of A.Y. 2008-09. Before us, no fallacy in the findings of CIT(A) has pointed out by the Revenue. In such a situation, we find no reason to interfere in the order of CIT(A) and thus the ground of Revenue is dismissed.
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2020 (11) TMI 1088 - SUPREME COURT
Fraud - Sale by forgery of documents and signatures - preponderance of probabilities - case of the plaintiff is that the defendants sought her signatures on blank papers in the year 1990 under the guise of preparation and processing of documents for the purpose of getting the estate left behind by their father mutated in their names.
Whether the 1990 GPA and sale deeds dated 29.06.1990 and 03.07.1990 purported to have been executed by the plaintiff is a result of fraud and forgery or whether the same had been executed by the plaintiff herself?
HELD THAT:- The fact that the subject documents were executed by plaintiff and attested by Teja Singh has been established from record in the shape of evidence of PW4 as well as defendant No. 4. The signatures of Teja Singh were identified by DW2, who deposed that he was conversant with Urdu language and could identify the signature of Teja Singh, which was in Urdu language. Further, DW4 deposed that he used to pay land revenue to Teja Singh and received receipts from him. Moreover, the handwriting expert (DW7) had also compared the admitted signatures of Teja Singh with those on the disputed documents and opined that it was signed by him, while the expert produced by the plaintiff as PW10 had not examined the admitted signatures of Teja Singh. Therefore, the signatures of Teja Singh stood proved as per the opinion of expert (DW7) and stood corroborated by DW2 and DW4, independent witnesses.
The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and moreso because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants - The requirement regarding shifting of burden onto the defendants had been succinctly discussed in ANIL RISHI VERSUS GURBAKSH SINGH [2006 (5) TMI 515 - SUPREME COURT], wherein this Court had held that for shifting the burden of proof, it would require more than merely pleading that the relationship is a fiduciary one and it must be proved by producing tangible evidence.
Emphasis was laid on the entries made in the PW4 scribe’s register showing the 1990 GPA to have been executed prior to the sale deed and it was submitted that there is no logic in first giving GPA and then executing sale deed if the plaintiff was available to execute the aforesaid documents. However, the same is of no avail to the plaintiff as the 1990 GPA was in respect of all her land holdings, whereas the sale was made only in respect of land situate at Kalyanpur village - the primary reason for executing the 1990 GPA was that the plaintiff was not residing in Punjab at the relevant point of time and that she was old and weak, and thus unable to look after her property situate at Punjab. The stress laid upon the fact that a woman was appointed in her place is, therefore, a matter of surmises and conjectures.
The plaintiff’s denial of being acquainted with the attesting witnesses, is, also a ruse and not genuine. For, one of the attesting witnesses Teja Singh was a lamberdar of the village. A lamberdar’s job is to collect revenue in respect of the lands and issue receipts and as a practice, the lamberdar is called for attesting documents. Thus, when the plaintiff admittedly used to visit village frequently, her denial in knowing Teja Singh is farfetched. This is what two Courts had opined and being a possible view, no interference by the High Court was warranted in that regard.
Fraud in respect of sale deed dated 03.07.1990 - HELD THAT:- The trial Court analysed the testimony of DW3 and noted that he had clearly stated the plaintiff was known to him personally. He had deposed that sale deed was executed by the plaintiff in his presence and the same was for a sum of Rs. 86,000/. It was further held that though the witness failed to identify the photographs of the plaintiff, adverse inference cannot be drawn as the sale deed was executed in the year 1990 whereas the evidence was given in the year 2007.
The sale deed of 03.07.1990 had been attested by Teja Singh Lamberdar and Anoop Singh (DW3). The attesting witness (DW3) was examined and he had deposed that the said sale deed was executed by the plaintiff in his presence, as well as in presence of Teja Singh and defendant No. 3. He had denied presence of any other person. He stated that the sale consideration was paid at home directly and not in his presence. Indeed, he had failed to identify plaintiff in photographs - In the present cases, the disputed documents were executed in the year 1990 and the evidence of DW3 was recorded in the year 2007, after a passage of 17 long years. Thus, the High Court erroneously doubted the evidence of DW3 merely because he could not identify photographs of plaintiff and because the defendant No. 4 and DW3 did not mention each other’s presence at the time of execution.
Since the defendant No. 4 has not signed the sale deed as a vendee, his evidence cannot be discarded. In any case, the weight of evidence of DW3 remains unassailable. Therefore, the testimony of DW3 satisfies the requirements of the conditions required for a valid attestation - Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of nonreceipt of the consideration amount.
The diverse grounds urged by the plaintiff in disputing the 1990 GPA and the sale deeds dated 29.06.1990 and 03.07.1990 are, as observed hitherto, unsubstantiated and untenable.
The presumption in favour of a 30year old document is, therefore, a rebuttable presumption. Nothing prevented the plaintiff to rebut the presumption by leading appropriate evidence in order to disprove the same. Since the plaintiff failed to do so, the said document would be binding on the plaintiff. As a matter of fact, the parties had acted upon the terms of the said document without any demur since 1963 and it was, therefore, not open to resile therefrom at this distance of time. Hence, the trial Court was right in holding the 1963 GPA, to be a genuine document.
Time limitation - HELD THAT:- For invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a fraud and the other is discovery of such fraud. In the present case, since the plaintiff failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiff cannot be extended the benefit under the said provision - the trial Court was in error to hold that the person who has disclosed the information was not examined by the plaintiff, when it had come on record through the testimony of Kultar Singh (DW2), that Rustam Singh expired before the suits came up for trial. If so, the finding of the High Court that the testimony of Rustam Singh strengthened the case of plaintiff is exfacie erroneous and manifestly wrong. In as much as, the said person was never examined before the Court in these proceedings. Further, the trial Court and the first appellate Court had erroneously assumed the date of function in December, 2001 in place of February, 2001.
It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt. In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants - As to the title of the subsequent purchasers, since the 1990 GPA had been proved, there is no reason to doubt their bonafides.
The trial Court and the first appellate Court had appreciated the evidence properly and that view being a possible view, the High Court ought not to have disturbed the same in the second appeal and that too on surmises and conjectures - Appeal allowed.
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2020 (11) TMI 1087 - KARNATAKA HIGH COURT
Disallowance of expenditure of earning exempt income u/s 14A - addition to book profits under Section 115 JB towards expenditure on exempt income - HELD THAT:- Substantial questions of law No.1 and 4 are answered against the revenue by judgment passed by a Bench of this Court [2020 (1) TMI 1141 - KARNATAKA HIGH COURT] and connected matter.
Deprecation on HTM category of investments - HELD THAT:- As further submitted that the substantial question of law No.2 is answered against the revenue by a Bench of this Court in ‘KARNATAKA BANK LTD [2013 (7) TMI 656 - KARNATAKA HIGH COURT] as further submitted that substantial question of law No.3 is covered by the judgment passed by a Bench of this Court [2020 (1) TMI 1116 - KARNATAKA HIGH COURT] and connected matters. The aforesaid submission could not be disputed by learned counsel for the revenue.
We answer the substantial questions of law framed in these appeals against the revenue and in favour of the assessee.
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2020 (11) TMI 1086 - AUTHORITY FOR ADVANCE RULING, CHHATTISGARH
Liability to GST - Royalty amount paid under RCM - whether Royalty amount is also required to be added in the value of supply of Service as per Section 15 for payment of GST, considering the same as part of supply of value? - HELD THAT:- In the present case, the mining right so granted for mining of soil is covered under the sub heading 997337 which specifies - 'Licensing services for the right to use minerals including its exploration and evaluation'. It is further seen that this gets covered under entry no. 17 of Notification No. 11/2017 - Central Tax (Rate) dated 28.06.2017, though the aforementioned service is not covered in any of the specifically mentioned descriptions of -entry no 17, resultantly it qualifies being categorized in the residual clause / serial number of entry no 17, wherein it has been specified that the rate applicable for such service should be of same rate as applicable for the supply of like goods involving transfer of title in goods.
The service received by the applicant is squarely covered under the Service Accounting Code 997337 -Licensing services for the right to use minerals including its exploration and evaluation. The State Government has been providing the service of licensing services for the right to use minerals after its exploration end evaluation and for this a consideration has to be paid to the Government - Reverse Charge Mechanism is applicable for certain notified services as mentioned in Notification No. 13/2017 - Central Tax (Rate) dated 28.06.2017. As per Sl. No. 5 to the said Notification, services supplied by the Central Government, State Government, Union territory or local authority to a business entity attracts GST, under reverse charge basis by the recipient of such services. The applicability thereof of GST rate for the aforementioned service is to be based on the classification of service.
In the instant case as the applicant is admittedly availing mining rights including it exploration and evaluation of soil used in earthwork on payment of a consideration to the Government of Chhattisgarh applicable with effect from 1.4.2018 GST is payable on reverse charge basis by the applicant on the consideration so paid to the Government, at the rate of supply of like goods being mined, on account of availing the said mining rights. Accordingly we come to the considered conclusion that the services for the right to use minerals including its exploration and evaluation, as per the Notification No. 11/2017-CT (Rate), dated 28.06.2017 as amended is included in sub heading 997337, attracting GST rate @18%.
Inclusivity of Royalty amount in the value of supply of Service as per Section 15 for payment of GST - HELD THAT:- As clause (2) to Section 15 of the Act provides that the value of supply shall include any tax, duties, cesses, fees and charges levied under any law other than GST Act, the royalty amount so paid by the applicant is includible while arriving at the transaction value for payment of applicable GST on the supply of the aforesaid services /activity rendered by the applicant to the main contractor.
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2020 (11) TMI 1085 - AUTHORITY FOR ADVANCE RULING, CHHATTISGARH
Rate of GST - Works Contract Service - Composite supply - works contract for renewal/renovation and other improvements for railway track from Karonji Station to Bhatgaon Railway Siding at Bhatgaon Area of SECL - HELD THAT:- On going through the chronology of amendments relevant to the issue in hand, detailed as made in Notification no. 11/2017-Central Tax (Rate), dated 28-6-2017, we come to the considered conclusion that the activities referred to by the applicant as works contract services provided to RITES Ltd, under letter of acceptance dated 20/12/2019 in relation to the work of renewal/renovation and other improvements for railway track from Karonji Station to Bhatgaon Railway Siding at Bhatgaon Area of SECL, would be leviable to GST at the rate of 9% CGST + 9% CGGST, as stipulated under serial number 3 [s.no. (xii)] of Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017 lastly amended vide 03/2019-Central Tax (Rate) New Delhi, the 29th March, 2019.
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2020 (11) TMI 1084 - AUTHORITY FOR ADVANCE RULING, CHHATTISGARH
Levy of GST - purchase of Biomass Power Plant (8 MW Capacity) by way of transfer of going concern through e-auction - serial no.2 of the Notification No.12/2017-Central Tax (Rote) dated 28/06/2017 - HELD THAT:- SCHEDULE II to Section 7 of the CGST Act supra, specifies about the Activities or Transactions which are to be treated as supply of Goods or supply of Services, wherein clause 4 (a) categorically stipulates that where goods forming part of the assets of a business are transferred or disposed of by or under the direction of the person carrying on the business so as no longer to form part of those assets, such transfer or disposal is a supply of goods by the person. Thus disposal of goods forming part of assets have been categorically stipulated under clause 4(a) of Schedule II to Section 7 of CGST Act, 2017 as supply of goods. Whereas, clause 4(c) of the said schedule II to Section 7 of the CGST Act, 2017 specifically stipulates that the transfer of a business as a going concern does not constitute a supply of goods.
The transfer of a business as a going concern is tax-exempt under GST, whereas sale of assets as above being supply of goods will be out of the purview of exemption from tax, eventually having GST implications. Further, as per the sale notice issued by the appointed liquidator, for effecting sale of assets and properties owned by M/s. Vandana Vidhuyat Limited (in Liquidation) under Insolvency and Bankruptcy Coode, 2016, in addition to the Biomass Power Plant (8 MW Capacity) in question, sale of Thermal Power Plant-2x135 MW Capacity was also initiated and it is seen from the letter of intent issued by the liquidator, that the question had bid for the said Biomass Power Plant (8MW Capacity) only M/s. Vandana Vidhuyat Ltd. - whenever there is transfer of business as a Going concern, it shall involve transfer of goods and/or services. Whether the instant supply of sale of assets in entirety is to be treated as supply of woods supply of services con be determined in terms of the definitions of composite supply and mixed supply read with section 8 of the CGST Act 2017.
Whenever there is transfer of business as a Going concern, it shall involve transfer of goods and/or services. Whether the instant supply of sale of assets in entirety is to be treated as supply of woods supply of services con be determined in terms of the definitions of composite supply and mixed supply read with section 8 of the CGST Act 2017 - in case the transfer of business as a going concern involves a supply of sate of assets which deserves treatment as principal supply as defined above and that supply is of goods, then the sale of assets as a going concern will have be treated as supply of goods by virtue of section 8 ibid and, therefore, the exemption provided under Notification no. 12/2017- Central Tax (Rate) will not be applicable, the exemption being only eligible to services of transfer of business as a going concern.
In the instant case of the applicant, as elaborately discussed in the preceding pare, it is seen that acquiring of assets viz. Biomass Power Plant (8 MW Capacity) by way of sale of assets and properties owned by the Corporate Debtor, M/s Vandana Vidhyut Limited, in Liquidation forming part of Liquidation Estate formed by the Liquidator under Insolvency and Bankruptcy Code, 2016, through e-auction for a consideration is supply of goods and not supply of services in view of the stipulations under SCHEDULE II of Section 7 of the CGST Act, 2017. Thus, the instant sale of Assets and properties viz. Biomass Power Plant (8 MW Capacity) owned by Vandana Vidhyut Limited (in Liquidation), can in no way be supply of services.
Notification No. 12/2017- Central Tax (Rate) New Delhi, the 28th June, 2017, supra provides for exemption to intro-Slate supply of services by way of transfer of a going concern, as a whole or an independent part thereof, whereas here in the case of applicant the supply of biomass power plant is supply of goods and not supply of services in view of the stipulations under schedule II to Section 7 of CGST Act, 2017 - Applicant appears to have misconstrued the sale of Biomass power plant by way of sale as a going concern as supply of services whereas the same is supply of goods by way of transfer as a going concern, and have thus wrongly claimed eligibility towards exemption from GST under serial no.2 of Notification no. 12/2017-Central Tax (Rate) dated 28.6.2017. Thus on the basis of documents furnished by the applicant, we come io the considered conclusion that the instant transaction by the applicant is not eligible to the benefit of Notification No. 12/2017-Central Tax (Rate) New Delhi, the 28th June, 2017 supply of goods, attracting GST at the applicable rate.
Exemption provided under serial no.2 of the Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 is not applicable to the said intrastate supply of Biomass Power Plant (8 MW Capacity) as a going concern. GST at the applicable rate is leviable on the said supply.
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2020 (11) TMI 1083 - AUTHORITY FOR ADVANCE RULING, CHHATTISGARH
Levy of GST - amount recovered/forfeited from employees who are leaving the services during probation period - HELD THAT:- As the recovery of salary in the instant case does not fall within the ambit of supply i.e. sale, transfer, etc. set out under sub-Section (1) of Section 7, and it being excluded activities or transaction of services by an employee to the employer in the course of or in relation to his employment as stipulated vide clause 1 of Schedule III supra, the conditions of Section 7 of CGST Act, 2017 is not satisfied and accordingly the transaction in question cannot be termed as a “supply” within the meaning of Section 7 and therefore, cannot be subjected to levy of GST. The employee opting to resign by paying amount equivalent to one month's salary in lieu of notice has acted in accordance with the contract. The employee is free to tender his resignation, make payment of one-month salary and quit. Hence, there is neither any active nor any passive role played by the employee. The same is nothing but transactions pertaining to services by employee to the employer in the course of or in relation to the employment.
As the activities or transactions in question do not satisfy the test of “supply” under Section 7 of the CGST Act, 2017, levy under Section 9 is not attracted here.
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2020 (11) TMI 1082 - ITAT BANGALORE
TP Adjustment - determination for ALP for provision of SWD services - HELD THAT:- Companies functionally dissimilar with that of assessee need to be deselected from final list.
Addition u/s 40A(7) - assessee company had failed to communicate the changes/ alterations made to the fund, as required under Rule 4(2) of the Fourth Schedule of IT Act and the contribution to fund is only a provision and not an actual expense under the purview of section 37(1) - HELD THAT:- Identical issue arose in assessee’s own case for AY 2010-11 [2017 (11) TMI 1861 - ITAT BANGALORE] as upheld the action of the DRP in deleting the addition made by AO.
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2020 (11) TMI 1081 - SUPREME COURT
Conversion of the land to industrial use - Whether the land in question which is situate at 12/6, Sector 27C, Faridabad and situated on the Mathura Road has been converted to industrial use? - HELD THAT:- In order to enable this Court to have an authoritative statement of the factual position from an official source entrusted with the authority to take the decision on conversion of land use, notice is issued to the State of Haryana, Haryana Shahari Vikas Pradhikaran (HSVP) and to the Director of Town and Country Planning. They shall before the next date of listing file affidavits indicating whether permission was granted for conversion of the land to industrial use.
The above direction is passed having regard to the provisions of the Punjab Scheduled Road and Controlled Area Restriction of Unregulated Development Rules 1965, more particularly Rules 26(A) to 26(F) - List the appeals on 2 December 2020.
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2020 (11) TMI 1080 - RAJASTHAN HIGH COURT
Call for record under FEMA - reasonable time to call for information - Assistant Director, Directorate of Enforcement has called record/documents from the petitioner exercising power under Section 37 of Foreign Exchange Management Act, 1999 read with Section 133 (6) of the Income Tax Act, 1961 - As LD counsel submits that information sought from the petitioner is of export transactions since 2010 onwards and as such the information which has been sought by the respondent cannot be furnished by the petitioner, as record from the year (2 of 2) [CW-12937/2020] 2010 onwards, cannot be maintained by any person under the law also reasonable time does not mean that information can be called after inordinate delay of about 10 years - HELD THAT:- Issue notice of the writ petition as well as stay application, returnable on 17th December, 2020. Notices be given ‘dasti’, if prayed. In the meanwhile, further proceedings in pursuance of show cause notice dated 24th July, 2020 shall remain stayed.
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2020 (11) TMI 1079 - ITAT BANGALORE
TP Adjustment - comparable selection - HELD THAT:- Companies functionally dissimilar with that of assessee engaged in Software Development Services and provides maintenance of service to ARM Limited, UK and ARM Inc, US need to be deselected from final list.
Working Capital Adjustment - Direct the TPO to grant Working Capital Adjustment after verification and examination of the assessee computation and allow the ground of appeal of the assessee for statistical purposes.
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2020 (11) TMI 1078 - CALCUTTA HIGH COURT
Grant of bail - Whether restrictions imposed by Section 37 of the NDPS Act are over ridden by the operation of the directions given by the Hon’ble Apex Court in SUPREME COURT LEGAL AID COMMITTEE REPRESENTING UNDERTRIAL PRISONRE VERSUS UNION OF INDIA [1994 (10) TMI 290 - SUPREME COURT] in the matter of grant of bail to undertrials in NDPS cases?
HELD THAT:- It is the duty of every Court including the High Courts when faced with the question of “bail or jail” to bear in mind the beholden principles of parity and equal access to justice. Courts need to rise above petty technicalities to preserve and restore liberty to all similarly circumstanced persons. Failure to do so, would create privileged oases of liberty accessible to few and denial of freedom to most.
Delay may also be caused by an accused and it is nobody’s case that such a litigant can derive benefit out of his own wrong. However, the principle of apportionment of responsibility in the matter of delay in trial must be counteracted in the backdrop of the constitutional duty of the State to ensure effective and speedy prosecution. The Constitution assures every individual the precious right of personal liberty and when it is forfeited by the State to ensure administration of criminal justice a heavy corresponding duty is cast on it to ensure speedy conclusion of trial minimizing under trial detention - there are no special feature relating to contributory role of the petitioner in the inordinate delay in trial. Absence of forensic laboratories, under staffing in those laboratories, inadequate number of prosecutors and frequent transfer of official witnesses cause chronic delay in trial of narcotic cases.
he directives in Supreme Court Legal Aid Committee applies with full force to the facts of this case and the petitioner ought to be released on bail on the score of inordinate delay in trial infracting his fundamental rights under Articles 14 and 21 of the Constitution.
The petitioner shall be released on bail upon furnishing a bond of Rs. 2,00,000/- with ten sureties of Rs. 20,000/- each, one of whom must be local, to the satisfaction of the learned Judge, Special Court under NDPS Act, North 24 Pargans, subject to the conditions that petitioner shall appear before the trial court on every date of hearing until further orders - Let this matter appear on 15th January, 2021.
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2020 (11) TMI 1077 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Operational Creditor has produced on record all the invoices raised against the Corporate Debtor. The Operational Creditor stated that it did not receive outstanding amount from the Corporate Debtor. This fact remains unchallenged on record against the Corporate Debtor - The evidence on record shows that the Corporate Debtor has received the notice under Section 8 of the I.B. Code. The Corporate Debtor neither replied the notice pointing out any pre-existing dispute nor made payment of debt amount.
The Operational Creditor did not suggest the name of any Resolution Professional for the appointment of Interim Resolution Professional ("IRP") and left the matter to the discretion to this Adjudicating Authority.
The Corporate Debtor in Corporate Insolvency Resolution Process under Section 9 of the I.B. Code is admitted - moratorium declared.
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