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2020 (10) TMI 1325 - AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND
Levy of GST - activity of development and sale of land - Classification of the activity - taxable value of the supply - admissibility of ITC - HELD THAT:- In the present case, it is found that the applicant has proposed to undertake the required project and therefore has filed the application for clarification on the questions under the Act. Therefore, the application is covered under Section 95(a) of the Act.
The issue is sale of developed land for which no testing is required. Further we find support of admitting the present application in the judgment of Hon'ble Supreme Court given in the case of NATIONAL CO-OPERATIVE DEVELOPMENT CORPORATION VERSUS COMMISSIONER OF INCOME TAX, DELHI-V [2020 (9) TMI 496 - SUPREME COURT]. The Court was of the opinion that a vibrant system of Advance Ruling can go a long way in reducing taxation litigation. This is not only true of these kinds of disputes but even disputes between the taxation department and private persons, who are more than willing to comply with the law of the land but find some ambiguity - thus, in terms of Section 97(2) of the Act, the present application is admitted.
Whether the activity of development and sale of land is taxable under GST or otherwise?
Ruling as per Amit Gupta, Member:-
HELD THAT:- In the present case since there is no construction of any civil structure on the developed plot by the applicant there is no need of completion certificate by the applicant. For the area as a whole there will be development activities as per local bye laws but the same is not a part of sale to the end customer. There is absolutely no provision of completion certificate by any competent authority in respect of sale of land - there is no contractual relationship between the applicant and the end customer. In paragraph 5 (b) of schedule H there is intention for sale to buyer and therefore there is agreement between the parties. In the present case the entire consideration is to be received at the time of sale deed for the sale of land upon payment of applicable stamp duty. So, the sale of developed plot cannot fall under paragraph 5(b) of schedule II - since the sale of developed plot does not constitute supply of goods or services, there is no question of tax (CGST/SGST) on the sale of land. All other questions are not required to be answered since there is no tax on the sale of land.
Ruling as per Shri Anurag Mishra, Member:-
HELD THAT:- The applicant is going to undertake substantial development of the land before giving it out for sale to the end customers. Since these development activities are covered in clause (b) of paragraph 5 of schedule II therefore the sale of developed land will be treated as supply of service in terms of paragraph 5 of schedule II and thus, taxable in the eye of law.
Since both the members have different views on the taxability of 'sale of developed land/plot', the other issues related to it becomes irrelevant and hence, the ruling cannot be given to such related issues.
Since there are different views, a reference is made to the Appellate Authority for hearing and decision on said issue in terms of Section 98 (5) of the Act ibid which provide that where the members of the Authority differ on any question on which the advance ruling is sought, they shall state the point or points on which they differ and make a reference to the Appellate Authority for hearing and decision on such question.
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2020 (10) TMI 1324 - ITAT MUMBAI
Disallowance on account of commission paid to various parties for rendering various services - assessee contended that the said expenditure was allowable u/s 37 as the said expenditure was wholly and exclusively incurred for the purpose of business of the assessee and therefore covered u/s 37 - A.O disallowed the said commission on the ground that assessee has failed to furnish the evidences corroborating that the said expenditure was incurred for the purpose of business wholly and exclusively or out of the business and commercial consideration - HELD THAT:- We observe that in this case the Coordinate Bench in assessee’s own case in A.Y 1988-89 has decided the issue in favour of the assessee whereas, the issue has been decided against the assessee in all subsequent years commencing from AY 1994-95 to 1999-00. Since all the assessment years right from AY 1994-95 to 1999-00 the issue is decided against the assessee, we, therefore, respectfully following the decisions of the Coordinate Benches from AY 1994-to 1999-00 uphold the order of CIT(A) on this issue by dismissing the ground raised by the assessee.
Addition u/s 40A(9) of the Act in respect of contribution to Utmal Employees Welfare Fund - HELD THAT:- We find that the issue is squarely coved in favour of the assessee by the decision of the Coordinate Bench of the Tribunal in assessee’s own case for the A.Y 1994-95 to 1997-98 and 1999-2000 - Since the facts are materially same, therefore, we are inclined to set aside the order of CIT(A) on this issue and direct the A.O to allow the deduction towards contribution to Utmal Employees Welfare Fund. Accordingly the ground No. 2 raised by the assessee is allowed.
Disallowance on account of expenditure incurred in relation to oil exploration u/s 42 - CIT(A) confirmed the order of the Assessing Officer by holding that the word ‘used’ denotes actual usage and not merely ready for use and as the actual usage happened in the next assessment year, deduction under section 42 of the Act would not be allowable in the current assessment year and would be allowed in the following assessment year - HELD THAT:- After hearing both the parties and perusing the language of section 42(1)(b) of the Act, we observe that the language of section 42(1)(b) provides that deduction of any expenditure incurred by the assessee, whether before or after such commercial production in respect of drilling or exploration activities or services or in respect of physical assets used in connection with business except the assets on which depreciation is admissible under section 32 of the Act. After carefully analyzing the provisions, we observe that in the section that the expenditure on acquiring asset is to be allowed when such expenditure is incurred on acquisition of asset which is used in business of the assessee. In the present case the assessee incurred Rs. 54,72,697/- on acquisition of asset which was used for the purpose of business in the assessment year 2001-02. The Ld. CIT(A) has opined that the term ‘used’ in the language of the section denotes actual usage and not ready to use, which in our opinion is correct. In this case, we observed that the section does specify the use of the said assets which has to be the year in which the asset is used for the purpose of business. Accordingly, we inclined to uphold the order ld. CIT(A) on this issue by dismissing the ground no. 3 raised by the assessee.
Nature of expenditure - expenses towards obtaining a license to use SAP-R/3 software and its implementation in the organization by treating the same as capital expenditure - HELD THAT:- After hearing the rival parties and perusing the material on record, we observe that the issue is squarely coved in favour of the assessee by the decision of Coordinate Bench in assessee’s own case [2018 (4) TMI 385 - ITAT MUMBAI] to hold that the expenditure incurred by the assessee on computer software is revenue in nature.
Disallowance u/s 14A of the Act on account of interest - HELD THAT:- As decided in own case [2018 (4) TMI 385 - ITAT MUMBAI] investment in tax free securities coming out of assessee's own funds in case the same are in excess of the investments made in the securities (notwithstanding the fact that the assessee concerned may also have taken some funds on interest) applies, when applying Section 14A of the Act. Thus, the decision of this Court in HDFC Bank Ltd. [2016 (3) TMI 755 - BOMBAY HIGH COURT] for the first time on 23rd July, 2014 has settled the issue by holding that the test of presumption as held by this Court in Reliance Utilities and Power Ltd.. while [2009 (1) TMI 4 - BOMBAY HIGH COURT] considering Section 36(1)(iii) of the Act would apply while considering the application of Section 14A - Decided in favour of assessee.
Addition on account of gain on extinguishment of sales tax deferred loan liability - Capital or revenue receipt - HELD THAT:- The assignment has not been accepted by the Sales-tax Department and, therefore, there is no question of cessation or remission of the liability.Besides the deemed loan from the Sales-tax Department is not a loss or expenditure or a trading liability and, therefore, the provision of section 41(1) of the Act is not applicable. The sales-tax originally collected by the assessee was an expenditure which has been allowed to the assessee by treating it as a deemed loan. Once the said amount has been treated as a loan, it loses its characteristic of sale-tax liability. Such deemed loan is not a loss or expenditure or a trading liability and, hence, does not come within the ambit of section 41(1) of the Act.
In the present case the pre-payment of a deferred sales-tax loan liability at the net present value, does not result in any ‘benefit’ to the assessee. Besides the case of the assessee is squarely covered by the decision of the coordinate bench in Cable Corporation of India Ltd. [2019 (7) TMI 167 - ITAT MUMBAI] wherein on identical facts, the Tribunal has concluded that the assignment of such liability, at the net present value, cannot be charged to tax either under section 41(1) of the Act or under section 28(iv) of the Act.The provisions of section 28(iv) of the Act are not applicable to the facts of the present case as monetary benefit is not covered by the said section.
In the present case of the Appellant, the Appellant has, in fact, paid a consideration to the other Company for taking over its obligation, which amount is lesser than the amount payable to the Sales-tax Department. . This issue is covered in favour of the assessee by the decision of the Apex Court in the case of CIT vs. Mahindra & Mahindra Ltd. [2018 (5) TMI 358 - SUPREME COURT] wherein the Apex Court has held that waiver of loan is a monetary benefit and, hence, it does not come within the ambit of section 28(iv) of the Act. Therefore, the amount is to be regarded as capital receipt which is not chargeable to tax.
Computation of deduction u/s 80HHC as made by the AO by rejecting the manner of computation by the assessee - Appeal decided in favour of assessee
Re-computation of claim of deduction under section 80IA of the Act by ld. CIT(A) as made by the AO qua captive power plant - HELD THAT:- We observe that the issue is covered by the jurisdictional high court decision in the case of CIT vs. Reliance Industries Ltd. [2019 (2) TMI 178 - BOMBAY HIGH COURT] in favour of the assessee wherein on identical facts, the High Court has held that deduction under section 80IA of the Act is to be computed at the rate at which the electricity is supplied to the consumers and not the rate at which the board purchases the electricity.
Adjustments/additions for the purpose of computing book profit u/s 115JA - Disallowance u/s 14A, Reduction of deduction u/s 80IA relating to profits of power generation operation from captive power plants, Disallowance u/s 80-IA relating to profits of power generation operation through DG Sets and Disallowance of deduction of tax paid u/s 115-O on distributed profits - HELD THAT:- The issue of adjustments made under section 14A of the Act will not survive as we have deleted the addition under section 14A in our decision in ground no. 7 supra/. Moreover the issue is also covered by the decision of the coordinate bench in AY 19999-00 - Similarly the issue of profits derived from DG sets not allowed as reduction from book profit u/s 80-IA is covered in favour of the assessee by the same decision of the coordinate bench in AY 1999-00 -Therefore the adjustments on account of disallowance under section 14A and profits derived from DG sets not allowed as reduction from book profit u/s 80-IA are allowed in favor of the assessee. The third adjustment on account of disallowance of Deduction of tax paid u/s 115-O while computing book profit is covered against the assessee by the order of the coordinate bench for AY 1999-00 - Accordingly the issue is decided against the assessee. The ground is partly allowed.
Claim of deduction in computing book profit under section 115JA of the Act under section 80HHC based on book profit and not tax profit - HELD THAT:- We find that the issue is arising out of the records before the authorities below and does not require any verification of facts or details. We are therefore admitting the same and restoring to the file of the AO to examine and decide as per facts and law. The additional ground is allowed for statistical purpose.
Reduction in depreciation arising on account of AO's action to disregard transfer of Bangalore undertaking as 'slump sale' - HELD THAT:- After hearing the parties and perusing the decision of the tribunal in AY 1998-99 has granted relief to the assessee by treating the transfer of Bangalore undertaking as a 'slump sale'. Hence, the consequential reduction in Depreciation by the Department in all subsequent years needs to be eliminated. We are therefore directing the AO accept the depreciation as calculated by the assessee. The additional ground is allowed.
Addition made by the AO on account of Interest on borrowed funds for setting up new cement plants - HELD THAT:- We find that issue is settled in favour of the assessee by the decisions of the coordinate benches in assessee own case right from AY 1994-95 to 1999-00 which were upheld by the Hon’ble High Court.
Addition on account of VRS expenses - CIT(A) allowed the appeal of the assessee on this issue by holding that entire VRS expenses were allowable in year it is incurred. Thus, VRS payment even if treated as deferred revenue expenditure by the assessee are allowable in the year in which they are incurred - HELD THAT:- After considering the rival contentions and perusing the facts of the assessee in the light of the jurisdictional High Court in the case of CIT Vs Bhor Industries [2003 (2) TMI 20 - BOMBAY HIGH COURT] we are inclined to dismiss the ground no. 3 raised by the revenue as the issue is squarely covered in favor of the assessee.
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2020 (10) TMI 1323 - UTTARAKHAND HIGH COURT
Criteria of payment of minimum wages - petitioners were directly engaged by the Department as casual workers - HELD THAT:- Court is of the view that the petitioners were engaged in 2013 and some causal workers were engaged prior to 2013 directly by the Department, therefore, merely on the ground that the petitioners were engaged in 2013, the criteria of payment of minimum wages cannot be changed. It is apt to note here that the petitioners and those casual workers who were engaged prior to 2013 had a common similarity i.e. these sets of casual workers were directly engaged by the Department. Thus, for the reason that they were engaged after 2013, they cannot be denied payment of minimum wages and they cannot be compelled to serve them through outsourcing. The decision of changing the service conditions of the petitioners that they shall be engaged through outsourcing is impermissible in law. In so far those causal workers, who have been engaged through outsourcing, they have no similarity with the petitioners.
The respondents cannot discriminate with the petitioner in the guise that after 2013, the Group D cadre has been declared as dying cadre. Be that as it may, the respondents cannot deny the same wages to the petitioner.
All the writ petitions are disposed of with the direction to the respondents to continue the petitioners as casual workers in the Department as they were directly engaged by the Department and they shall be paid minimum of wages as were being paid to similarly engaged daily wagers who were engaged prior to 2013. The petitioners are not entitled for regularization of their services as the Department has not framed any regularization policy. In case, the Department chooses to frame regularization policy for casual workers (Group ‘D’ employees) in future, the petitioners will be at liberty to raise their claim. It is made clear that those who have been engaged through outsourcing will not be entitled to the benefit of this judgment.
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2020 (10) TMI 1322 - ITAT KOLKATA
Disallowance of interest paid - excess payment of interest to a related party - CIT(A) held that the excess interest was just 1 % per annum and well within tolerable limits and deleted the additions - HELD THAT:- We do not find any infirmity in this finding of the ld. CIT(A). In the result, we dismiss Ground No. 1 of the revenue .
Addition made on account of delay in deposit of employees’ contribution to PF & ESI u/s 36 (1)(va) r.w.s. 2(24)(x) - CIT-A deleted the addition - HELD THAT:- CIT(A) applied the judgment of the Hon’ble Jurisdictional High Court in the case of CIT vs. M/s. Vijay Shree Ltd.[2011 (9) TMI 30 - CALCUTTA HIGH COURT] and CIT vs. REI Agro Limited [2013 (12) TMI 1517 - CALCUTTA HIGH COURT] and allowed the claim of the assessee. We find no infirmity in this finding. Hence, we dismiss this ground of the revenue.
Sales tax incentive received by the assessee from the Govt. of West Bengal as being capital receipt and hence no taxable - CIT(A) held that the sales tax incentive received from the Government of West Bengal is capital in nature - HELD THAT:- We find that the Kolkata ‘C’ Bench of the ITAT, in the case of ACIT, CC-3(2) vs. Shantinath Detergents Pvt. Ltd. [2020 (3) TMI 964 - ITAT KOLKATA] in the case of a group concern of the assessee and has considered an identical facts and adjudicated the same in favour of the assessee.
On a query from the Bench, the ld. D/R, could not demonstrate that the scheme under which the Sales Tax incentive was given to the assessee was different from the scheme under which sales tax incentive was given to Shantinath Detergents Pvt. Ltd. On facts, he could not distinguish this case from that of the case of Shantinath Detergents Pvt. Ltd. Hence, we find no infirmity in the order of the ld. CIT(A). We uphold the same by applying the proposition of law laid down by the ITAT, in the case of Detergents Pvt. Ltd. (supra). Hence Ground Nos. 3, 4 & 5 raised by the revenue are dismissed.
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2020 (10) TMI 1321 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI ÇOURT-III
CIRP under process - Corporate Debtor is exploring the possibilities of seeking resolution plan - HELD THAT:- The Resolution Professional is directed to make a representation before the Noida Authority with all the details to seek their consent for the purpose of seeking a resolution plan. The representation shall be made within three working days along with the necessary documents, the Noida Authority shall take a decision within two from the date of the receipt of the representation. The Resolution Professional after receiving the response from the Noida authority is directed to file short affidavit with regard to the state of affairs on next date of hearing.
List on 18.11.2020.
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2020 (10) TMI 1320 - GUJARAT HIGH COURT
Addition u/s 40(a)(a) - whether assessee failed to bring any evidence on record to the effect that the payments made are covered under circular No.723 of 1995 and that the non-residents ship owners/charters had filed returns u/s 172 - addition on account of interest and on account of insurance expense claimed on vehicle - addition on account of depreciation, petrol and repair expenses claimed on vehicle - disallowance of expenses being web designing and development expenses which is intangible and capital in nature - disallowance of expenses for market survey and production of commercial film for broadcasting on TV Channels - disallowance of expenses being payment made for making advertisement film which is in the nature of an intangible asset - addition made on account of under invoicing of sales made to sister concern - addition more particularly when AO has pointed out specific examples of under invoicing which has been dismissed by way of generic finding - crucial findings of AO including that sister concern operates from tax exempt jurisdiction and assessee has incurred huge advertisement expenses in foreign markets - Whether the Appellate Tribunal has erred in stating that net profit of 46.38% is not possible when the Hon'ble Karnataka HC has held in CIT vs. Vesesh Infotechnics Ltd. [2012 (9) TMI 70 - KARNATAKA HIGH COURT] that even a profitability of 94.8% is possible?”
HELD THAT:- Having gone through the materials on record, we are of the view that none of the questions as proposed by the revenue could be termed as the substantial questions of law. All the questions proposed are on factual aspects of the matter.
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2020 (10) TMI 1319 - NATIONAL COMPANY LAW TRIBUNAL CHANDIGARH BENCH
Seeking admission of claims filed by the claimants after expiry of last date of submission of claims as per the public announcement in Form-B - seeking modification of the list of stakeholders filed with the Hon’ble NCLT - HELD THAT:- The applicant shall implead the parties/claimants whose claims are filed belatedly and the delay thereof is sought to be condoned in the instant IA. The applicant shall file an amended memo of parties by impleading the said parties within one week. On filing the same, let notices be issued to the said respondents as per amended memo of parties for 02.12.2020 and applicant shall collect the notices from the Registry and send the same by speed post immediately to the respondents at their registered addresses attaching therewith copy of the application and the entire paper book and the copy of this order - List on 02.12.2020.
Service of notice to respondents - HELD THAT:- Though notices were directed to be served on 09.09.2020 but the applicant failed to serve the notices to the respondents. At the request of the applicant’s counsel issue fresh notices to the respondents in the IA for 10.11.2020 and applicant shall collect the notices from the Registry and send the same by speed post immediately to the respondents at their registered addresses attaching therewith copy of the application and the entire paper book and the copy of this order.
Reply be filed within one week after receipt of notice with a copy in advance to the counsel opposite - List on 10.11.2020.
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2020 (10) TMI 1318 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Striking off the name of company from Register of Companies - non-filing of annual returns and Balance Sheet - section 248 (5) of the Companies Act 2013 - HELD THAT:- It is submitted that an amount of 5 crores has been paid to respondent no. 6 and the land which is in possession of the company is to be developed and the flats are to be delivered to the home buyers. In the circumstances, we are inclined to allow the application.
The RoC concerned is directed to restore the name of the company in the Register of Companies subject to filling of all the pending annual returns and balance sheets. The company is directed to make the compliance with the provisions of the companies Act by filing the pending annual returns and balance sheets for the period w.e.f 2014 onwards with the RoC within 4 weeks from the date of this order and the RoC shall restore the name of the company to the Register of Companies - A fine of ₹ 20,000/- is imposed on the company, which shall be reimbursed to the Office of the RoC for incurring the expenses for the restoration of the name of the company to the Register of Companies.
Appeal allowed.
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2020 (10) TMI 1317 - ORISSA HIGH COURT
Seeking extension of different kinds of protections of the order dated 05.05.2020, which have been extended from time to time, till 31.08.2020 - HELD THAT:- The protection granted by this Court vide order dated 05.05.2020 passed in this case in sub-paras (i) to (xii) of para-7 is extended up to 25th November, 2020 except to the extends with the modification specifically made - Put up this matter on 25th November, 2020.
Prayer to allow the auction the vehicles, which were seized prior to imposition of the lock-down during COVID-19 pandemic situation - HELD THAT:- This Court is inclined to relax/modify the clause-x of condition stipulated in the order passed by this Court earlier to the extent that the intervenor-petitioner shall issue fresh presale notice to the loanees about the auction of the vehicles from whom the vehicles were seized referred to in Annexure-1 (series) and in the event of their inability to take back the vehicles by repaying the loan dues, the intervenor-applicant shall proceed to put them to auction as per the law - application is disposed of.
Prayer to allow to auction the vehicles, which were seized prior to imposition of the lock-down during COVID- 19 pandemic situation - HELD THAT:- This Court is inclined to relax/modify the clause-x of condition stipulated in the order passed by this Court earlier to the extent that the intervenor-petitioner shall issue fresh pre-sale notice to the loanees about the auction of the vehicles from whom the vehicles were seized referred to in as I.A. No.11924 of 2020 and in the event of their inability to take back the vehicles by repaying the loan dues, the intervenorapplicant shall proceed to put them to auction as per the law - Application disposed off.
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2020 (10) TMI 1316 - NATIONAL COMPANY LAW TRIBUNAL PRINCIPAL BENCH
Insinuation of some other network parallel to the network of the applicant - Disaster Management Act - HELD THAT:- Since the Respondents though opportunity was given to them, for not having come forward to say what is the material available with them to show that this Applicant company has not provided proper services (technical incapability) to them, we are constrained to restrain these two Respondents not to proceed to have services from other networks at least until the next date of hearing - For having the Respondents cited DM's letter as a cause to avail parallel services, the Applicant is directed to add the respective authority as third Respondent by next date of hearing.
The Applicant counsel submits that it is not that other service providers are not able to use the service of this network, any service provider can use the fibre network laid by the Applicant company, if the applicant network is incompatible to the services other service providers intend to provide, then the Respondents have to ascertain incompatibility of the network of the applicant and then ask the applicant to set it right, if not, then only to proceed for parallel services. Bypassing this aspect will be not only the violation of terms and conditions of the agreements but also deprivation of the business of the Applicant Company.
List this application on 20.11.2020.
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2020 (10) TMI 1315 - MADRAS HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - condonation of delay in filing such appeal for an extended period of 30 days - Section 51 of TNVAT Act - HELD THAT:- The Petitioner was entitled to prefer appeal against that order under Section 51 of TNVAT Act, within a period of 30 days from the date of its receipt before the Appellate Authority, who has been empowered to condone delay in filing such appeal for an extended period of 30 days, if sufficient cause for not preferring appeal within that period is made out. However, the Petitioner did not prefer any such appeal before the Appellate Authority, but has instead filed this Writ Petition on 10.07.2018 challenging the order passed by the Respondent beyond the maximum limitation period of 60 days from the date of receipt of copy of that order.
The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority.
Having regard to that legal position, it is not possible for this Court to express any view on the correctness or otherwise on the merits of the controversy involved in the matter - petition dismissed.
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2020 (10) TMI 1314 - ITAT DELHI
Addition u/s 14A r.w.r. 8D - CIT-A deleted the addition - as per revenue CIT(A) ignored the fact that the assessee had incurred huge interest expenses in relation to investments in the instruments income which is exempt - HELD THAT:- The assessment order itself reveals that in so far as the direct expenses u/r. 8D(2)(i) are concerned, the AO accepted that no direct expense was incurred by the assessee for earning the exempt income. There is no denial of the fact from the Revenue that as on 31.03.2014, the share capital of the assessee was ₹ 103.40 crores which is more than enough to cover the investments of ₹ 86.208 crores and therefore, the presumption is that the assessee invested the amounts from out of their own funds and therefore, the question of disallowing the interest component u/r. 8D(2)(ii) does not arise.
In so far as consideration of investment which did not yield any dividend income for the purpose of calculating the disallowance u/r. 8D(2)(iii), it is the settled principle of law that only such investments which yielded exempt income during the year have to be considered for computing the average value of investment, and the investments which did not yield any exempt income shall not be considered. Admittedly, the assessee disallowed by following this calculation. Ld. CIT(A) rightly followed the decision of Special Bench of this Tribunal in the case of ACIT vs. Vireet Investment (P) Ltd. [2017 (6) TMI 1124 - ITAT DELHI] which is binding precedent on this aspect. - Appeal of revenue dismissed.
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2020 (10) TMI 1313 - APPELLATE AUTHORITY FOR ADVANCE RULING, CHHATTISGARH
Input Tax Credit - GST paid on goods and services used for laying of cross-country pipeline nearby river till the boundary wall of the Factory - Operation and Maintenance Services (O & M Services) obtained by the Appellant for the maintenance of the facility - outward supply or not - HELD THAT:- “Works contract” has been defined under section 2(119) of the CGST Act, 2017 as a contract for building, construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract - the explanation to section 17 (5) of CGST Act, 2017 categorically excludes pipelines laid outside the factory premises from the scope of plant and machinery, besides restricting credit of works contract services for works to be performed on immovable property and also restrict the credit of construction related activity of immovable property even when construction activity do not fall into the scope of works contract. However, works contract and construction activity is eligible for Input Tax Credit if done in respect of plant and machinery.
The essential character of “immovable property”, relevant to the present context is that it is attached to the earth, or permanently fastened to anything attached to the earth, or forming part of the land and not agreed to be severed before supply or under a contract of supply. The project of laying pipe lines covers a large area, tailored specifically to fit the dimensions and orientation of the needs of the project. Dismantling and shifting the said pipeline project appears neither to be prudent nor a viable option. Thus, besides pipelines being laid outside the factory premises outside the scope of “plant and machinery” it also fulfills the conditions of being an immovable property.
Input tax credit on taxes paid on annual operation and maintenance services for the pipeline laid outside the factory premises - HELD THAT:- The appellant have also furnished a copy of certificate of licence to run a factory issued by the Government of Chhattisgarh to bring home their point of contention that these pipe lines (laid outside the factory) are 'factory' in itself. Perusal of the said certificate reveals that this licence has been granted by the Deputy chief Inspector of Factories, Government of Chhattisgarh for the very specific purpose of water treatment and pumping of water to the consumers by employing workers not more than nineteen on any one day during the year. This certificate in no way comes to their rescue for the claimed Input Tax Credit under the provisions of section 16 (1) of CGST Act 2017, in as much as the said certificate is for treatment of water and its pumping from the said source of water whereas Section 16(1) of CGST Act read with Section 17 (5) of CGST Act, 2017 specifically provides for restriction of input tax credit and the explanation appended under Section 17 excludes pipelines laid outside the factory premises from the definition of 'plant and machinery' thereby denying the input tax credit on the same.
Under GST, Section 17(5) of CGST Act, 2017 provides for restriction of input tax credit and the explanation appended under Section 17 excludes telecommunication towers and pipelines laid outside the factory premises from the definition of 'plant and machinery' thereby denying the input tax credit - In terms of Section 2 (83) of CGST Act, 2017 “outward supply” in relation to a taxable person, means supply of goods or services or both, whether by sale, transfer, barter, exchange, licence, rental, lease or disposal or any other mode, made or agreed to be made by such person in the course or furtherance of business. No nexus whatsoever could be made of the “outward supply”, with the pipe lines laid outside the factory premises of Appellant for water supply on which ITC is being claimed.
Appeal dismissed.
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2020 (10) TMI 1312 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI COURT-V
Seeking direction to IRP to admit the claim of the applicant company towards the interest component - the principal amount was admitted but the interest amount was rejected by IRP - time limitation - HELD THAT:- The interest amount has been refused on the ground that it is not reflected in the books of account of the CD. Even if it is presumed that the loan agreement on a plain paper is a valid agreement then we noticed that the amount, which was paid by the petitioner to the CD and by the CD to the petitioner both are on demand.
So far the date of default under Section 7 of IBC is concerned, it is the date when the first demand was made. Here in the case in hand the demand was made for the first time as it appears from the documents enclosed by the petitioner on 21.12.2010, therefore, the date of default occurred on 21.12.2010, whereas the CIRP was initiated on 29.09.2020 and thereafter, the principal amount was admitted by the IRP and the petitioner filed this application for the interest, which was rejected by the IRP. In view of the settled principal of law, the petitioner is entitled to get it within three years from the date when the first default occurs. Since for the first time on demand, payment was made by the CD on 21.12.2010, therefore, the claim of the petitioner is liable to be accepted only as per article 137 of the Limitation Act, within three years, when right to apply accrues and here in the case in hand, the default was occurred for the first time on 21.12.2010, therefore, the petitioner was required to submit its claim within three years from 21.12.2010 i.e. on or before 20/12/2013 and in view of the decisions referred above in our considered view limitation cannot be extended on the basis of last payment made by the CD to the petitioner ,i.e from 22/03/2019 in view of Section 19 of the Limitation Act.
The claim of interest of the petitioner is barred by limitation and it is liable to be rejected - there are no option but to reject the prayer of the petitioner to direct the RP to admit the claim of the applicant company to the tune of ₹ 5,63,67,620/- towards the interest component alongwith the principal component - application dismissed.
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2020 (10) TMI 1311 - GUJARAT HIGH COURT
Seeking grant of Regular bail - previous bail application was withdrawn after filing of chargesheet and this bail application is also filed after filing of chargesheet - It is contended by the learned advocate for the petitioner that the victim was drunk and fell down in the well, but the complainant had got-up the story of throttle and thrown - offences under Sections 302, 201 and 114 of the Indian Penal Code - HELD THAT:- It would be appropriate to refer to the judgment of the Apex Court rendered in case of KALYAN CHANDRA SARKAR VERSUS RAJESH RANJAN @ PAPPU YADAV & ANR. [2005 (1) TMI 704 - SUPREME COURT], wherein it is held that “this Court also observed that though the accused has a right to make successive application for grant of bail, the Court entertaining such subsequent bail applications has duty to consider the reaosns and grounds on which the earlier bail applications were rejected and in such cases, the Court also has a duty to record what are the fresh grounds which persuaded it to take a view different from the one taken in the earlier application.”
In the case on hand, the previous bail application was withdrawn after filing of chargesheet and this bail application is also filed after filing of chargesheet. The learned advocate for the petitioner has not been able to piont out any change in the circumstances - Under the circumstances, in absence of any change in circumstances, no ground is made out by the petitioner as observed by the Apex Court.
Application dismissed.
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2020 (10) TMI 1310 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Exclusion of lockdown period on the ground that 90 days period of extension was still in hand - HELD THAT:- Having regard to the imposition of lockdown on account of outbreak of COVID-19 declared as pandemic from 23rd March, 2020 to 29th May, 2020 (Nationwide) and the fact that the State of Maharashtra where the Corporate Office of the Corporate Debtor is stated to be located has been worst hit with most of the areas declared Red Zone culminating in extension of lockdown till 31st August, 2020, the hardship was required to be mitigated by allowing the exclusion as prayed for.
This appeal is allowed by directing that the period of lockdown w.e.f. 25th March, 2020 till 31st August, 2020 shall be excluded while computing the period of CIRP. To avoid any confusion/ambiguity, it is made clear that this direction will not in any case be construed as interference with the extension of 90 days’ time granted by the Adjudicating Authority, which shall begin only after expiry of the period of CIRP period of 180 days after excluding the period from 25th March, 2020 upto 31st August, 2020 - appeal disposed off.
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2020 (10) TMI 1309 - NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD
Appointment of Independent Valuer for determination of fair value of shares - division of shares of group/family members with the Respondent No. 2 to 5 - Section 241-242 of the Companies Act, 2013/Section 397 & 398 of the Companies Act, 1956 - HELD THAT:- Both the parties have agreed to part amicably as such for the betterment of the company. The parties are allowed to buyback their share/asset and release the company in favour of the party who is giving the higher offer. Since the Respondent is not satisfied with the valuation report and the Petitioner is ready to purchase the share of the company at mean value of 2 Independent Valuers of real estate appointed by both the parties which comes to ₹ 1247.27/- per equity share of Respondent 1 company and has further confirmed that he is ready to sell at the mean value and is ready to purchase at 5% above the mean value which comes to ₹ 1309.63 per share.
It is found expedient to direct both the parties to quote their offer price independently in a sealed cover before this Tribunal so as the higher offeror be allowed to purchase the share and part with the company amicably - both sides are given 15 days time to submit their offer before this Tribunal and accordingly, the matter is listed on 13.11.2020 for compliance of the direction so passed - application disposed off.
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2020 (10) TMI 1308 - MADRAS HIGH COURT
Correct head of income - business income or house property - whether ITAT erred in holding that the Revenue had assessed income from letting out unsold shops in Coramandel Plaza as ‘business income’ and therefore not adjudication the grounds of appeal of the Revenue whereas the Revenue had assessed the said income as ‘house property income’ ? - Revenue contended that this was illegal and factually incorrect as the Assessing Officer did not assess the income from Coromandel Plaza as business income - HELD THAT:- Tribunal, after hearing both the Revenue as well as the assessee, by order dated 08.10.2018, allowed the said miscellaneous petition and recalled that portion of the order passed by it. Thus, the basis for filing these appeals and raising the second substantial question of law, as of now, does not survive because the finding has already been recalled by the Tribunal and the Tribunal will hear the matter afresh. Therefore, we hold that there is no necessity to answer the second substantial question of law.
Whether the Tribunal was justified in holding that the only course available to the Revenue is the revision of its order under Section 263 ? - We find that the observation made by the Tribunal regarding exercise of power by the Commissioner under Section 263 of the Act is a power to be advisorial and no substantial question of law arises from such observation. Hence, this substantial question of law is rejected.
Rental receipts of the assessee with regard to letting out of the property - whether it needs to be treated as business income? - As today we set aside the common order of the Tribunal and remanded the matter to the Tribunal for a fresh consideration. Accordingly, the first substantial question of law framed is left open and both the assessee as well as the Revenue can raise all the issues before the Tribunal.
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2020 (10) TMI 1307 - MADRAS HIGH COURT
Income from house property - ALV determination - Whether the provisions of Section 23(5) of the Income Tax Act, 1961 inserted by the Finance Act, 2017 with effect from 01.4.2018 could be treated as retrospective in operation for the purpose of computing notional rent for taxation under the head ‘income from house property’? - Whether Tribunal erred in sustaining the computation of annual letting value of the unsold stock of residential flats in Victoria Towers for the purpose of computing notional rent under the ‘income from house property’ in the computation of taxable total income without assigning proper reasons and justification? - HELD THAT:- We have carefully gone through the impugned proceedings and we find that the reasons assigned by the Tribunal are not clear and cogent.
Though they were not raised in the same form before the Tribunal, we find that there was an argument to that effect, which has not been dealt with by the Tribunal. Therefore, we are inclined to interfere with the impugned order and remand the matters to the Tribunal for a fresh consideration. That apart, the Revenue was also aggrieved by one portion of the order passed by the Tribunal, which, according to the Revenue, was factually and legally incorrect and therefore, they moved a miscellaneous petition before the Tribunal and it was allowed by order dated 08.10.2018.
The Tribunal is to hear the Revenue afresh on that issue. Hence, interest of justice would be met and interest of the Revenue also would be protected if the entire matter is remanded to the Tribunal for a fresh consideration. For the above reasons, the above tax case appeals are allowed.
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2020 (10) TMI 1306 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Liquidation of corporate Debtor - allegation is that sole creditor constitutes the Committee of Creditors and the decision taken to liquidate the Corporate Debtor is vindictive and malafide - HELD THAT:- Keeping the fact that the Corporate Debtor intends to settle with the Creditors, the instant appeal is dismissed with observation that the dismissal this appeal shall not preclude the Corporate Debtor from advancing proposal or floating a scheme/ settlement in terms of aforesaid provision.
The appeal is dismissed.
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