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Newsletter: Where Service Meets Reader Approval. TMI Tax Updates - e-Newsletter November 10, 2020 Case Laws in this Newsletter: GST Income Tax Customs Corporate Laws Insolvency & Bankruptcy Service Tax Central Excise Indian Laws Articles Consumer complaint by Allottee against Builders is not barred by RERA Act, 2016 News Finance Minister Smt. Nirmala Sitharaman attends 1st BRICS Finance Ministers and Central Bank Governors Meeting The 15th Finance Commission submits its Report for 2021-22 to 2025-26 to the President of India Notifications Customs 34/2020 - dated 9-11-2020 - ADD Seeks to amend notification No. 54/2015-Customs (ADD), dated 18th November 2015 to extend the levy of ADD on imports of " Carbon Black used in rubber applications " originating in or exported from China PR and Russia, for a further period upto and inclusive of 31st December, 2020. Highlights / Catch Notes GST Search and Seizure - Violence and coercion against the petitioners and their employees - In view of the admitted fact that the search operations were continued well past midnight and summons were issued to 2nd petitioner to appear at 00:30 hrs on 12.12.2019, we do not accept the plea of the respondents that they did not act contrary to established procedure, that the search proceedings were carried out under proper and applicable law and procedure, and no harm or damage were made to any human/person or property and no sentiments were hurt. - Directions issued - HC Visit to Get Source Classification of goods - Nizam Pakku - it is seen [hat the essential character of betel nut (arecanut) remains the same in the product supplied by the applicant. Therefore, following Rule 1 of General principles of Interpretation of the Tariff, the product merits classification under Chapter head 080280 and not under CTH 2106. - only those dried areca nut, not called as betel nut is subjected to 5% GST - The product in hand being betel nut, the applicable rate is 12% of GST - AAR Visit to Get Source Income Tax Refund the tax paid on admitted income - When the assessment order, which accepts the tax liability as proposed by the assessee, is intact, the consequential order refusing to rectify the defects in filing the returns on wrong advice cannot be sustained. As mandated by law, the assessee filed a self assessment and paid the tax on income assessable to tax along with interest for delayed payment, which is in conformity with the legal provision of Income Tax Act, 1961. - Petition dismissed - HC Visit to Get Source Disallowance of interest expenses - assessee has not charged any interest in respect of advance given to the wife of the one of the key personnel of the company - In view of the huge funds available with the assessee without any interest liability, we find that the issue is squarely covered in favour of assessee. - AT Visit to Get Source Addition being the amounts credited in the capital reserve - income u/s.56 - conversion of partnership firm into company - pursuant to assessee firm receiving capital contribution from PEL to the tune of ₹ 2117.45 Crores, PEL had become 75% partner in the assessee firm. Hence, for all practical purposes, the assessee firm belongs to Piramal group and not to Shriram group as understood by the ld. AO in her assessment order. - there cannot be any allegation that can be levelled on the assessee in the instant case that the capital reserve was created as part of a scheme to avoid tax liability and is part of any colourable device. - there cannot be any taxability either u/s.56(1) or u/s.56(2)(viia) - AT Visit to Get Source Exemption u/s 11 - eligibility for exemption u/s 12A - educational institution - The Tribunal lost sight of the distinction between a claim for registration under Section 12AA and a claim for exemption under Section 11 of the Act. The DIT(E) failed to adhere to the instructions issued by the CBDT which is binding on the DIT(E). As observed earlier, the recent pandemic has taught very many lessons and one of which is that, mode and method of education cannot be in any manner restricted, but should be given the widest meaning that is possible - HC Visit to Get Source Corporate Law Condonation of delay of 201 days - It is well settled principle in Law that if the ‘explanation’ offered does not smack of mala fide, utmost consideration must be given to a Litigant/Suitor to condone the delay. - This Tribunal, to prevent an ‘Aberration of Justice’ and to ‘Secure the Ends of Justice’ interferes with the impugned order passed by the NCLT, Division Bench -I, Chennai and allows the instant Appeal by condoning the delay in question. - AT Visit to Get Source Service Tax 100% EOU - Refund of CENVAT Credit - Nexus of input services with export - there can be cases where the input service was for output service A which is domestically sold but not an input service for output service B which is exported. However, in this particular case the unit is a 100% export oriented unit and there is no domestic sale. Therefore, there is no scope for such an apprehension. - AT Visit to Get Source Recovery of service tax dues of the company from the director - Attachment of his personal bank account by respondent - the Principal Commissioner informed this Court that the department has no material against the petitioner other than the fact that he was a Director of the assessee-company. - The impugned order is in violation of principles of natural justice - HC Visit to Get Source Central Excise CENVAT Credit - credit on FFC & MTOP - the department cannot deny the credit availed after collecting the excise duty - demand do not sustain - AT Visit to Get Source Clandestine Manufacture and removal - Pan Masala and scented zarda - Release of applicant on Bail - a person cannot claim as a matter of right to be released on bail merely because he was under detention for half of the maximum sentence prescribed, as when there is lapse on the part of the accused to delay the proceeding, such benefit will not be extended to him. - HC Visit to Get Source Case Laws: GST 2020 (11) TMI 269 Search and Seizure - Violence and coercion against the petitioners and their employees - Whether officials belonging to the G.S.T. Intelligence Department of the Union of India such as respondent nos.5 to 9 in the Writ Petition can resort to physical violence while conducting interrogation of the petitioners and their employees in connection with proceedings initiated against the petitioners by the respondents under the C.G.S.T. Act, 2017 and I.G.S.T. Act, 2017? HELD THAT:- Our country has enacted the Protection of Human Rights Act, 1993 for protection of human rights in the country in fulfillment of its obligations as a party to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on 16.12.1966. Under this Act, there are provisions for constitution of a National Human Rights Commission and also State Human Rights Commissions and their powers are set out with clarity under the Act. Reference can also be made to Section 30 of the said Act which provides for specification of a Court of Session in each District to be a Human Rights Court by the State Government so that offences arising out of violation of human rights are tried and disposed of speedily - In view of this statutory regime already in place, it would be futile for the respondents to claim any liberty to torture or use physical violence during the course of search, investigation or interrogation under the CGST Act, 2017 against persons suspected of tax evasion like the petitioners or their employees. The possibility of the use of violence by respondent nos.5 to 9 against petitioner nos.2 to 4 and the other employees of petitioner no.1 cannot be entirely ruled out having regard to Ex.P.4, in particular. The respondents cannot contend that they will interrogate the persons suspected of committing any tax evasion as per their sweet will forceably keeping them in their custody for indefinite period. If it is done, it has to be construed as informal custody and the law relating to an accused in custody has to be expressly or impliedly applied. If accused can get all the benefits under Art.22 of the Constitution, a person in such informal custody can say that he is also entitled to get relief under Art.21 of the Constitution of India - In view of the admitted fact that the search operations were continued well past midnight and summons were issued to 2nd petitioner to appear at 00:30 hrs on 12.12.2019, we do not accept the plea of the respondents that they did not act contrary to established procedure, that the search proceedings were carried out under proper and applicable law and procedure, and no harm or damage were made to any human/person or property and no sentiments were hurt. Coming to the plea of the petitioners for transfer of investigation is concerned, though normally such transfer is not to be done, in view of the facts and circumstances of this case and the absence of counter affidavit by the 5th respondent denying the allegations of physical violence by him in the course of the search operations against the 3rd petitioner, we feel that it would not be appropriate for the 5th respondent to be a participant in the proceedings initiated by the respondents against the petitioners. Whether presence of a lawyer can be allowed at the time of examination of petitioner nos.2 to 4 and their employees? - HELD THAT:- Under no circumstances can there be examination of a person by officers under GST Act in the presence of a lawyer - in the special facts and circumstances of the case, the petitioner nos.2 to 4 or their employees shall be examined in the visible range of their counsel, though not in hearing range. Investigation at New Delhi where the Headquarters of DGGI is located - HELD THAT:- We are in the midst of the COVID-19 Pandemic and there are serious risks involved in people traveling to and from New Delhi and their family members because there is no dispute that New Delhi has several cases of Corona virus infections for the last several months. In the coming winter months, the prediction of the health experts is that there could be more infections and even fatalities caused by the said virus. Also it would entail considerable expense for that many people to travel to Delhi and back apart from high boarding and lodging costs. The respondents shall not use any acts of violence or torture against petitioner nos.2 to 4 or their employees in furtherance of enquiry proceedings - the enquiry in the above proceedings against the 1st petitioner shall not be handled by the 5th respondent, and he shall not participate in such enquiry, and it shall be transferred to another official to be designated by the 2nd respondent - Petition dismissed. 2020 (11) TMI 268 Classification of goods - Nizam Pakku - classifiable under Chapter heading 0802 8030 of the Customs Tariff or not - SI. No. 28 of Schedule I of Notification 1/2017 Central Taxes (Rate) Dt- 28.06.2017 - HELD THAT:- The product is marketed as NIZAM PAKKU . From the Tax Invoice furnished [Invoice No.783 cit. 12-Nov-2019,729 dated 24-0ct-2019,680 dated 29.10.20191, it is seen that the description is NIZAM BETELNUT GRADE II , BETELNUT GRADE 11 250 PCSX20PKTS, LOOSE BETELNUT 100X50, etc, the HSN code is specified as 0802 and the rate of tax charged is CGST @ 2.5% SGST @ 2.5%. The product is said to be used for chewing with or without betel leaves. It is evident that CTH 21069030 covers Betel nut product known as Supari , while Areca (betel) nuts Whole, Split, Ground, Other are specifically mentioned as classified under sub-heading 08028010, 08028020, 08028030 and 08028040 of Chapter head 0802. In the case at hand, the applicant s product is marketed as Nizam Pakku . The betelnut/ arecanut(broken/pulverised) is heated with Vegetable oil, menthol for the purpose of preserving and Sugar, glucose syrup, menthol and spices, viz., cardamom and cloves are added. As per the test reports furnished by the applicant, (from the excellence Laboratory dated 13.11.2019) the percentage content of betel nut is 92% the other ingredients are cardamom(0.9%),Sugar(Betel Nut)-1.9%; Vanaspati/EdibIe Oil-4.7%, which are the admissible ingredients as per Chapter Note 3 of Chapter 08 of the Customs Tariff. Also, the test report of Bureau Veritas India Pvt Ltd states that The sample is cut pieces Of dried edible Betelnut . Thus it is seen [hat the essential character of betel nut (arecanut) remains the same in the product supplied by the applicant. Therefore, following Rule 1 of General principles of Interpretation of the Tariff, the product merits classification under Chapter head 080280 and not under CTH 2106. Rate of GST - HELD THAT:- The rate of CGST is notified vide Notification No. 01/2017-C.T.(Rate) dated 28.06.2017 as amended in respect of goods and that of SGST is notified vide Notification No. II(2)/CTR/532(d-4)/2017 vide G.O. (Ms) No. 62 dated 29.06.2017 as amended. The rate pertaining to Chapter Head 0802 are available at Sl.No 28, 29 of Schedule I- 2.5% of the Notifications, and Sl.no.15 of Schedule 11-6% of the Notifications - while Dried areca nuts, whether or not shelled or peeled are subjected to GST @5% as per Sl.No. 28 of Schedule I; those products classified under 0802 other than dried areca nuts are subjected to GST @ SGST-6%] as per Sl.No. 15 of Schedule II. Thus, it is evident that only those dried areca nut, not called as betel nut is subjected to 5% GST under Sl. No. 28 of Schedule I. The product in hand being betel nut, the applicable rate is 6% CGST as Per SI. No. 15 of Schedule II of the said Notifications. Income Tax 2020 (11) TMI 277 Disallowance u/s 14A r.w.s 8D - method of calculation of disallowance - profits and gains of business or profession are taxed after deducting expenditure from income - Is the Tribunal right in deleting the additions made by the AO under section 14 A of the IT Act, read with Rule 8D? - HELD THAT:- Tribunal noted that the AO only discussed the provisions of section 14A(l) but has not justified how the expenditure the Assessee incurred during the relevant year related to the income not forming part of its total income. AO, according to the Tribunal, straightaway applied Rule 8D. Indeed, there must be a proximate relationship between the expenditure and the tax-exempt income. Only then would a disallowance have to be effected. This Court, we may note, on more than one occasion, has held that the onus is on the Revenue to establish that there is a proximate relationship between the expenditure and the exempt income. That is, the application of section 14A and rule 8D is not automatic in each and every case, where there is income not forming part of the total income. No doubt, the expenditure under section 14A includes both direct and indirect expenditure, but that expenditure must have a proximate relationship with the exempted income. Surmise or conjecture is no answer. Reiterate that before rejecting the disallowance computed by the Assessee, the Assessing Officer must give a clear finding with reference to the Assessee s accounts as to how the other expenditure claimed by the Assessee out of the non-exempt income is related to the exempt income. no valid reasons to upset the Tribunal s well-reasoned judgment on this substantial question of law - Decided against revenue. Addition as capital expenditure - Is the Tribunal right in deleting the addition made by the AO on account of capital expenditure? - HELD THAT:- In LH. Sugar Factory and Oil Mills [ 1980 (8) TMI 1 - SUPREME COURT] has concluded that if the advantage consists merely in facilitating the assessee s business operations or enabling management and conduct of the assessee s business to be carried on more efficiently or more profitably while leaving the fixed capital untouched the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. Thus, guided precedentially by all the above decisions, Salgaocar Mining Industries [ 2019 (7) TMI 707 - BOMBAY HIGH COURT] has accepted the Respondent-Assessee s contention that it is revenue expenditure. So must it be here. We see no other compelling reason to take a different stand. - Decided against revenue. 2020 (11) TMI 276 Tax Evasion Petition - Black Money (Undisclosed Foreign Income and Assets) - petition has been filed u/s 482 Cr.P.C. seeking setting aside the order passed by learned ACMM (Spl. Acts), Central District, Tis Hazari Courts, Delhi - status report regarding the status of complaint of Applicant and investigation, if any, carried out on complaint of Applicant be called, in the interest of justice - HELD THAT:- ACMM has usurped the inherent jurisdiction of this Court which is impermissible under the law. Moreover, in cases pertaining to Tax evasion petitions like the present case, this Court also exercises its powers sparingly and it is a well-settled principle that only the broad outcome of the Tax evasion petition may be communicated to the complainant, that too upon culmination of the investigation. The Income Tax Department has a specific framework of investigations dealing with the TEPs and information in respect of the investigation carried out by the office of Directorate General of Income Tax (Investigation) is not required to be intimated to the complainant as the said office is even outside the purview of the RTI Act, 2005. Providing information regarding an ongoing investigation to its informer is not only inappropriate, but also injurious to the ongoing investigation. Without observing much in the present petition, since the application filed by respondent no.1 before the learned ACMM was without the provisions of either Cr.P.C. or Income Tax Act which is bad in law. Moreover, the orders passed in such versions by learned Judge are also illegal, perverse and without jurisdiction. 2020 (11) TMI 275 Refund the tax paid on admitted income - writ petitioner filed admitting the income towards capital gains - ITAT quashed the addition u/s 45(5)(b) and held that the transfer, as contemplated in Section 2(47) had happened in the year 1993-1994 and not in Assessment years 2000-2001 or 2002-2003 - as argued capital gains were assessable only in the relevant year 1993-1994 and not in 2001-2002 or 2002-2003 and hence, voluntary admission made by the assessee on wrong advice, shall be ignored - Miscellaneous Petition for clarification with regard to the retention of the capital gains wrongly admitted by the petitioner on the ground that voluntary admission is no ground to assess the same, as there is no estoppel in law HELD THAT:- Assessee paid the tax which is admittedly payable. Even the assessment order is set aside, it will not have any impact on the self assessment made by the assessee. The Income Tax Appellate Tribunal has considered the addition of income under Section 45(5)(b) of the Act as incorrect and nullified it. But, the assessment order on the admitted income was not nullified. Only because, there is an observation that the relevant year of assessment is 1993-1994 in view of Section 53-A of Transfer of Property Act, it will not confer any legal right on the assessee to claim refund. Admittedly, the income is assessable to tax and it was not assessed due to the statement made by the assessee that the transfer was not complete in terms of the sale agreement. The assessee cannot blow hot and cold or approbate and reprobate that what is not paid on due date cannot be assessed at all. It is true to state that there is no estoppel against law. The chargeability is dependent on the charging section. It is not in dispute that the income of the petitioner is chargeable to tax. In other words, the assessment authority has not assessed the income which is not assessable to tax. Hence, the claim for refund of tax paid on admitted income is not sustainable. When the assessment order, which accepts the tax liability as proposed by the assessee, is intact, the consequential order refusing to rectify the defects in filing the returns on wrong advice cannot be sustained. As mandated by law, the assessee filed a self assessment and paid the tax on income assessable to tax along with interest for delayed payment, which is in conformity with the legal provision of Income Tax Act, 1961. If at all, the petitioner is aggrieved, she should have filed an appeal against the assessment order dated 25.02.2011. Apart from this, the order impugned has been passed in terms of the Office Memorandum issued in cases of claim for refund and following the ratio laid down by the Hon'ble Supreme Court in Shelly Products case [ 2003 (5) TMI 4 - SUPREME COURT ] This Court is of the opinion that tax avoidance of the income chargeable to tax is not permissible under law 2020 (11) TMI 274 Deduction u/s 80JJAA - employment of new workmen - non-satisfaction with respect to additional wages paid to new employees in the 1st year of employment - HELD THAT:- As relying on Texas Instruments (India) Pvt.Ltd [ 2020 (3) TMI 1195 - ITAT BANGALORE ] there is no doubt that assessee cannot be denied deduction under section 80JJAA of the Act, provided that, such employees fulfils the condition of being employed for 300 days for year under consideration , even though such employees do not fulfil the condition of being employed for 300 days in the immediately preceding assessment year. We also note that, details fulfilment of number of days of such employees, on whose salary deduction has been claimed by assessee, are not available on record. Therefore, we are unable to verify, whether necessary condition of 300 days stands fulfilled. We are therefore of opinion that the issue needs to be remanded to Ld.AO to verify these details in terms of new employees having satisfied the 300 days criteria during the year. We direct assessee to provide all details regarding number of regular workmen/employees, number of new workmen/employees added for each of the immediately three preceding assessment years to Ld.AO. Ld.AO is then directed to analyse fulfilment of the condition in respect of new employees/workmen against whom the claim has been made by assessee under section 80JJAA of the Act. Ld.AO is then directed to allow deduction under section 80 JJAA - Ground of assessee stands allowed for statistical purposes. Deduction in respect of share of loss from A2E2, USA - HELD THAT:- Authorities below rejected the claim as assessee assessee was not allotted shares in the LLC wherein it was a partner but in our view this issue needs to be remanded to Ld.AO to consider the claim of assessee in light of evidences/documents, joint venture Agreements, declaration by the U.S. LLC before the tax authorities therein etc, OECD commentary is in respect of the same, the manner in which such incomes/loss as the case may be are treated in USA being the source country and the manner in which such income/loss are to be treated as per Indian income tax act. Ld.AO shall take a view based upon all the documents in light of the provisions applicable during the relevant period under the act. Ground of assessee stands allowed for statistical purposes. 2020 (11) TMI 273 Assessment of Startups - Procedure for addition made u/s. 56(2)(viib) in the past assessment - Time limit for Completion of pending assessments of the Startups - HELD THAT:- All assessment referred to in 2(i) should preferably be completed by the AOs by 30th September, 2019. The assessments referred to in 2(ii) 2(iii) should be taken up on priority and should be preferably completed by 31st October, 2019. Addition made U/s. 56(2)(viib) - The clarification issued on 9th August, 2019 provided that the provisions of the section 56(2)(viib) of the Act shall also not be applicable in respect of assessment made before 19th February, 2019 if a recognised Startups has filed declaration in Form No. 2. In case the appeal against the assessment is pending before the Commissioner of Income-tax (Appeal)[CIT(A)], the appellate order should be passed by CIT(A) on or before 31st December, 2019 after taking into account the fact that the Startup has filed declaration in Form No. 2 and hence the provisions of section 56(2)(viib) of the Act are not applicable for the addition made under section 56(2)(viib) of the Act before 19th February, 2019. The Department shall not file further appeal on the issue of addition made under section 56(2)(viib) of the Act; Income-tax demand - It is reiterated that the outstanding income-tax demand relating to additions made under section 56(2)(viib) shall not be pursued and no communication with the assessee in respect of outstanding demand shall be made for this purpose. In respect of other income-tax demand, it is decided that the income-tax demand shall not be pursued unless the demand is confirmed by the ITAT. Constitution of Startup cell - In order to redress grievances and to address various tax related issues in the cases of Startups, a Startup Cell is constituted on 30th August, 2019. We are of opinion that the issue deserves to be remanded to Ld.CIT(A) to verify the issue in light of above circular. Ld.CIT(A) shall verify fulfilment of necessary criterias as required by the said circulars for its applicability to its fullest. Ld.CIT(A) is directed to grant proper opportunity of being heard to assessee in accordance with law. Ld. CIT(A) is also directed to pass reasoned order after carrying out necessary verification/investigations. Assessee is directed to file all requisite details/information is as called for by Ld. CIT(A) to consider the issue in light of the circulars. 2020 (11) TMI 272 Penalty u/s 271(1)(c) - disallowance of interest expenses - estimated interest expenses in proportion to the corresponding interest free advances given by the assessee - Whether there is neither concealment of particulars nor inaccurate particulars of income for bonafide claim of interest expenses? - HELD THAT:- While a claim towards expenditure may not found acceptable in quantum proceedings, such disallowance cannot invite tax burden by way of penalty. When all material facts relevant to the said claim were placed on record, the presence or absence of commercial instinct in a given case is a matter of inference. Such adverse inference against assessee would not attract imposition of penalty. The claim of expenditure towards interest made, at best, be taken as erroneous claim by the assessee. Such claim made in a bonafide manner cannot lead imposition of penalty. Although such claim may not be maintainable for the purposes of quantum proceedings, however, in the absence of any falsity per se in such claim, making an incorrect claim for deduction is not at par with concealment or inaccurate particulars of income. As in the case of CIT vs. Dalmia Dyechem Industries Ltd [ 2015 (7) TMI 619 - BOMBAY HIGH COURT] to observe that the penalty cannot be imposed unless the action of the assessee per se is dishonest, malafide and amounting to concealment of facts. There, being no concealment of fact per se, imposition of penalty is not justified. The penalty, in our view, is clearly not maintainable in the absence of any contumacious or dishonest conduct - Decided in favour of assessee. 2020 (11) TMI 271 Addition u/s 68 - fraudulent loan transactions - interim order of SE'BI on suspected banking transactions - CIT(A) deleted the addition by holding that assessee has furnished all the documents and details proving conclusively the three ingredients of identity, creditworthiness of the lenders and the genuineness of the transactions - HELD THAT:- As decided in own case order of SEBI proves that the matter regarding suspected banking transactions are not money laundering as alleged by the A.O in his order. Thus, basic reliance placed by the AO on SEBI order in itself is not valid today in the light of the fact cleared all the allegations. CIT(A) also held that the share application money received by the assessee is not be added u/s. 68 of the act having regards to the facts of the case wherein the same was doubted as an accommodation entry from the group of Pravin Kumar. From entity of facts and circumstances as narrated above, we find that A.O the AO has merely relied on the interim order of SE'BI in the case of M/s. Pyramid Satsmira instead of gathering any evidences to show that the unaccounted cash of the assessee has changed consequently, resulting in the cheque payment. The interim order of the SEBI has be reversed vide the final order dated 31.03.2015. CIT(A) also taken into consideration all the facts as narrated above. No new facts or contrary judgment/material has been brought on record to controvert the finding of the Id. CIT(A). We find no reason to interfere the findings so recorded by the Id. CIT(A). The contention of the Ld. D.R. that in the present year there is no SEBI investigation is correct, but the issue is same on merits and therefore the same is squarely covered by the decision of the co-ordinate bench of the Tribunal as stated above - uphold the order of Ld. CIT(A) by dismissing the appeal of the Revenue. 2020 (11) TMI 270 Nature of expenses - product development expenses - revenue or capital expenditure - HELD THAT:- As decided in own case for immediate preceding assessment year 2011-12 even prior to the current year as well as during the year the assessee has purchased and sold the product which were tested as per the analytical report. We also observe that assessee has been in the business of manufacturing of pesticides since last seven years and the practice of getting the product tested with analytical report was being followed by the assessee since earlier years. Therefore we find that observation of the assessing officer was not factually correct. TDS u/s 195 - Disallowance of foreign commission u/s. 40(a)(i) - assessee has paid export Sales Commission to various non-resident parties on which TDS was not deducted - HELD THAT:- In the case of GE Technology [ 2010 (9) TMI 7 - SUPREME COURT ] wherein it is held that pair is bound to deduct tax at sourced only if the tax is assessable in India if tax is not so assessable, there is no question of tax at source being deducted. Assessee also cited a judgment of MGM Exports [ 2018 (5) TMI 1240 - GUJARAT HIGH COURT ] wherein held that fundamental principle of deducting tax at source in connection with payment only, where the sum is chargeable to tax under the Act, still continues to hold the field. In the present case, the Revenue has not seven seriously contended that the payment to foreign commission agent was not taxable in India. - Decided against revenue. Disallowance of interest u/s. 40A(2)(b) - justification for interest paid on unsecured loan at the rate of 18%. - A.O. after reducing 3% of interest allowed 15% interest - CIT(A) who granted relief on the ground that A.O. has not given any basis and support to adopt the interest rate at 15% per annum as the prevalent interest rate - HELD THAT:- In the matter of Laxmi Pulse Rice [ 2012 (8) TMI 1183 - ITAT AHMEDABAD ] wherein similar issue was decided by the Co-ordinate Bench in favour of the assessee and allowed 18% of interest and similar rate of interest was allowed by the Co-ordinate Bench. Disallowance of capitalization of interest u/s. 36(1)(iii) - CIT(A) who granted relief to the assessee on the ground that interest bearing funds utilized for the capital advances is without any basis and therefore disallowance of interest was deleted - HELD THAT:- We can read from the order of the ld. CIT(A) wherein audited balance sheet with regard to share capital and reserve and surplus were reproduced wherein assessee is having share capital of ₹ 2500 lacs and reserve and surplus is having of ₹ 2514 lacs and total comes to 5014 lacs. Meaning thereby, assessee is having interest free funds for much more. - Decided against revenue. 2020 (11) TMI 267 Exemption u/s 11 - eligibility for exemption u/s 12A - Recording of satisfaction - whether the activities of the assessee of giving only donation to educational institution can be said to be educational? - cancel registration of charitable Trust retrospectively - HELD THAT:- In the case on hand, there is no allegation that the assessee Trust has not carried on its activities in accordance with the objects of the Trust as set out in the Deed of Trust and the Supplementary Deed. Except for stating that the activities are not genuine because of the amendment to the proviso to Section 2(15), there is no other allegation, with regard to the genuineness of the Trust. We have referred to the decisions to show that the amendment to Section 2(15) cannot make activity of a trust not genuine, which was hither to genuine while enjoying the registration under Section 12AA prior to the amendment. Therefore, we are of the view that the DIT(E) failed to record his satisfaction as required to be done under sub-Section (3) of Section 12AA. The satisfaction should be on the activities of the Trust and finding should be rendered as to how such activities are not genuine. The activities of the assessee Trust have not been disputed, nor there is any allegation of non genuine activities. Therefore, by referring to the amendment to the proviso to Section 2(15) and referring to the meaning of the word 'education' as spelt out in certain decisions, cannot be construed to be a satisfaction, which is contemplated under sub-Section (3) of Section 12AA. Retrospective cancellation of the registration of the assessee is wholly without jurisdiction and the assessee cannot be vexed repeatedly on the same issue and reason for invoking the power under sub-Section (3) of Section 12AA is wholly unsustainable, without any basis and suffers from perversity writ large on the face of the order. Tribunal misdirected itself by addressing a wrong question without taking note of the earlier decisions rendered in the assessee's own case. The DIT(E) has not recorded his satisfaction that the activities of the assessee Trust are not genuine, nor he has made any observation that the assessee had carried out activities which are not covered in the Trust Deed or in the judgment and decree in C.S.No.90 of 1961. The decisions relied on by the Revenue, in fact, would go to assist the case of the assessee, rather the Revenue. The DIT(E) committed gross error in restricting the meaning of the word 'education' and did not appreciate the effect of the decision in Loka Shikshana Trust [1975 (8) TMI 1 - SUPREME COURT] which was considered in several other subsequent decisions. Above all, the DIT(E) and the Tribunal violated the rule of consistency by showing utter disregard to the judgments of the Hon'ble Supreme Court and this Court in the assessee's own case on the very same subject and the orders of the DIT(E) and the Tribunal have to be termed to be 'utterly perverse'. The Tribunal lost sight of the distinction between a claim for registration under Section 12AA and a claim for exemption under Section 11 of the Act. The DIT(E) failed to adhere to the instructions issued by the CBDT which is binding on the DIT(E). As observed earlier, the recent pandemic has taught very many lessons and one of which is that, mode and method of education cannot be in any manner restricted, but should be given the widest meaning that is possible. - Decided in favour of assessee. 2020 (11) TMI 266 Reopening of assessment u/s 147 - for the purpose of contesting the said appeal petitioner requested the Income Tax Department to supply him certain documents, such as the certified copy of the income tax return with all accompanying annexures filed by the petitioner for the assessment year 1996-97 - HELD THAT:- Relief prayed for by the petitioner in this writ petition cannot be granted in view of the fact that when the documents demanded by the petitioner are not available with the Income Tax Department, no such direction of supplying them can be given. Moreover, the petitioner can very well approach the appellate court, where his appeal against the impugned assessment order is pending, for appropriate direction to the authorities of the Income Tax Department to produce the relevant record. 2020 (11) TMI 265 Estimation of income - rejection of books of accounts - denial of depreciation - estimation of the income by adopting Net Profit @6% disallow the depreciation on the ground that one of the trucks purchased during the year under consideration was not to put to use and therefore the depreciation is not allowable - HELD THAT:- Once the Assessing Officer has estimated the income by adopting the Net Profit, then scope of further disallowance on account of depreciation is ruled out. Hence, the disallowance of depreciation by the Assessing Officer is highly arbitrary and inappropriate and the same is liable to be deleted. Ground raised by the assessee is allowed. 2020 (11) TMI 264 Stay of demand - recovery proceedings - HELD THAT:- Assessee has already paid a sum of ₹ 43.18 Lakhs out of the disputed demand of ₹ 1.85 Crores for all these three years, after the part relief granted by the CIT(A). Therefore, the payment made as claimed by the assessee after the assessment order is more than 20% of the disputed demand involved in these appeals. Since the assessee has made out prima-facie a good arguable case in these appeals and at least for the AYs.2005-06 and 2006-07 therefore when the assessee has already paid more than 20% of the disputed demand, then, the assessee deserves protection against the coercive action for recovery of the outstanding demand. Assessing Officer is restrained to take any coercive action for recovery of the balance outstanding demand for a period of three months or till the disposal of these three appeals, whichever is earlier. 2020 (11) TMI 263 Addition being the amounts credited in the capital reserve - income u/s.56 - whether the capital contribution made by PEL in assessee firm which was kept partly in capital account and partly in capital reserve account in the books of the assessee firm is correct and balance lying in capital reserve account could be brought to tax as income from other sources u/s.56(1) of the Act or alternatively u/s.56(2)(viia)? - AO observed that the information gathered from available source show that M/s. PEL was contemplating to acquire 20% stake in SCL for an aggregate consideration of ₹ 2014 Crores is contrary to the submissions of the assessee who had stated that PEL was acquiring 74% stake in the assessee firm - CIT(A) deleted the addition - HELD THAT:-The view point of the ld AO that the capital reserve belongs to firm may be to some extent true in the case of limited companies, but not in the case of a firm , where a group of persons come together for doing business in the name of partnership and all the assets and liabilities of the partnership belongs to partners only and no distinction could be drawn between partnership firm and partners in this regard. Hence, the apprehensions of the revenue in this regard deserve to be squarely dismissed. Assessee partnership firm had been subsequently converted into a private limited company i.e. Shrilekha Business Consultancy Pvt. Ltd., and the capital reserve lying in the books of the assessee firm had been duly credited as such in the financial statements of the successor company under the head reserves and surplus - reconstituted partnership deed also provides this clause about the subsequent event which may happen regarding the fact of conversion of the partnership firm into a private limited company or limited liability partnership (LLP) - dismiss the arguments advanced by the revenue before us that capital reserve belongs to the firm and not to the partners. Hence, there cannot be any allegation that can be levelled on the assessee in the instant case that the capital reserve was created as part of a scheme to avoid tax liability and is part of any colourable device. We also agree with the arguments advanced before us that pursuant to assessee firm receiving capital contribution from PEL to the tune of ₹ 2117.45 Crores, PEL had become 75% partner in the assessee firm. Hence, for all practical purposes, the assessee firm belongs to Piramal group and not to Shriram group as understood by the ld. AO in her assessment order. One more reason canvassed by the ld. AO for taxing the said sum u/s.56(1) of the Act is that the assessee had acted as a conduit of PEL for indirect transfer of money to SCL and to acquire its 20% stake. In this regard, we have already held hereinabove the clear purpose behind assessee coming into picture for routing this transaction for the simple reason that SCL is prevented by its private equity investors from not making any allotment of shares to any outsiders other than to its group companies. We have also held hereinabove that the said receipt of capital contribution by the assessee from PEL and subsequent allotment of shares of SCL to assessee through Novus cannot be construed as a colourable device. Hence all the reasons canvassed by the ld. AO and by the ld .CIT DR for framing addition u/s 56(1) of the Act does not hold any water. In these circumstances, the said transaction cannot be brought to tax in terms of Section 56(1) of the Act. The entire transactions carried out by the assessee, PEL and SCL does not fall within the ambit of definition of income u/s.2(24) of the Act in any manner whatsoever, as the entire transactions are only in the capital field. These transactions do not have any incidence of taxation at all. It is not in dispute that PEL had actually made capital contribution of ₹ 2117.45 Crores in assessee firm, which is partly kept in capital account and partly kept in capital reserve account. Hence there cannot be any gift of capital by a partner to the partnership firm as PEL would not like to lose its rights and interest in partnership firm for the capital contributed by them. Hence it would be totally unfair and baseless to state that PEL had actually gifted or parted with its capital lying in capital reserve to the firm. - With regard to alternative addition made by the ld. AO u/s.56(2)(viia) of the Act, the only observation of the ld. AO is that the assessee firm had received monies from PEL and utilised the same by making payments to Novus on the same day. We find that these type of transactions are not at all covered in the provisions of Section 56(2)(viia) of the Act. Certainly, it is not the case of the AO that money received thereon is without any consideration or for inadequate consideration, hence, the provisions of Section 56(2)(viia) of the Act cannot be made applicable to the facts of the assessee s case and the contentions of the ld. AO deserves to be dismissed at the threshold level itself. - there cannot be any taxability either u/s.56(1) or u/s.56(2)(viia) of the Act in the hands of the assessee firm. - Decide against revenue. Addition u/s 45(3) or 56(2) - Whether consolation received on transfer of shares from the partner by the assessee is ' capital contribution ' and cannot be considered as 'consideration' for the purpose of Sec. 56(2) (viia) ? - HELD THAT:- We find that the value of the shares were recorded by way of credit to the partners capital account in the form of capital contribution in terms of Section 45(3) of the Act. Though the provisions of Section 45(3) of the Act are applicable for levy of capital gains in the hands of the transferor i.e. partner in the instant case, the consideration fixed thereon cannot be different in the hands of transferee i.e. the assessee firm as the same is emanating from the same transaction. We find that the provisions of Section 45(3) is a special provision and a specific provision, whereas, the provisions of Section 56(2)(viia) is a general provision. Transfer of asset by a partner to the firm as the capital contribution, no doubt constitutes a transfer in the hands of the partner, but the value recorded in the books of the firm by way of credit to the partners capital account would be conclusive proof of consideration received in the hands of the partner towards transfer of capital asset. Provision of Section 56(2)(viia) of the Act could not be made applicable at all in the case of capital contribution made by a partner in the form in kind. Revenue appeal dismissed. 2020 (11) TMI 262 Disallowance of Development Expenses - Genuineness of payments to sub contractors during second reassessment proceedings - HELD THAT:- Since the assessee has failed to prove the genuineness, evidence of work done like valuation report, or any other details w.r.t. this claim and he further observed in the same para that since an amount is already added in the order dated 29.12.2009, only the balance amount is required to be disallowed further and he made the disallowance of ₹ 487,88,586/- in this second reassessment order dated 30.03.2013. Since, the impugned order of CIT (A) and the assessment order dated 31.03.2015 passed by the AO u/s 143 (3) r.w.s. 254 are in line with the direction of the tribunal in para 12 of the said tribunal order dated 20.09.2013 in first round as per copy available we hold that no interference is called for in the order of CIT (A) dated 13.01.2020. Addition u/s 68 - consequent demand raised as per order u/s 154 - HELD THAT:- CIT (A) observed that the assessee failed to submit any evidence in support of its contentions raised in grounds of appeal and no documentary evidence has been produced nor any evidence furnished to substantiate its claims. Before us also, no material is produced to show that the transaction in question is genuine although it is held by the AO that the same is not genuine. Assessee appeal dismissed. 2020 (11) TMI 261 Exemption u/s 11 - grant of registration u/s 12AA - proof of charitable activities - HELD THAT:- CIT-E called for certain information in order to satisfy himself, that the activities of the trust are genuine or not. It appears that the appellant trust had failed to comply with the said notice, but from the perusal of the impugned order it is not clear that whether the CIT (Exemption) had granted reasonable opportunity of being heard since the impugned order mentioned only one date of hearing notice. In the case of Ananda Social and Educational Trust 2020 (2) TMI 1293 - SUPREME COURT] held that even in the absence of any activities a trust can be considered for registration u/s 12AA of the Act and the term activities contemplated u/s 12AA includes proposed activities . At the time of grant of registration, the only issue to be examined by CIT (Exemption) is regarding the true nature of the objects of the trust i.e. whether the charitable in nature or not - matter requires remand to the ld. Commissioner of Income Tax (Exemption) to re-examine the issue of grant of registration u/s 12AA - Decided in favour of assessee statically. 2020 (11) TMI 260 Disallowance of interest expenses - assessee has not charged any interest in respect of advance given to the wife of the one of the key personnel of the company - CIT(A) has restricted the disallowance of interest on loan given to the employee of the wife to the extent of 11.5% as against disallowance of 15% made by the AO - HELD THAT:- As decided in own case [ 2016 (12) TMI 1833 - ITAT AHMEDABAD ] where interest-free own funds available to the assessee are far in excess of the interest-free advance, the presumption would arise in favour of assessee that the advances were made from interest-free funds available with the assessee - In view of the huge funds available with the assessee without any interest liability, we find that the issue is squarely covered in favour of assessee. Enhanced disallowance u/s. 14A r.w.r. 8D - CIT(A) has enhanced the disallowance stating that borrowed funds were directly related to the investment made for earning exempt income - HELD THAT:- As perused the decision of Reliance Utilities Power Ltd. [ 2009 (1) TMI 4 - BOMBAY HIGH COURT ] wherein it is held that if there be interest free funds available to an assessee sufficient to meet its investment and at the same time the assessee had raised a loan it can be presumed that the investment were from the interest free funds available. The assessee had demonstrated from the above referred copies of annual accounts that it was having substantial amount of interest free funds of ₹ 25.67 crores as against investment of ₹ 2.70 crore. - we consider that incurring of administrative expenses i.e. cost of employee, office expenses etc. to manage the investment cannot be ruled out therefore we restrict the disallowance to the extent of administrative expenses of ₹ 85,923/- as computed by the Assessing Officer. Accordingly, this ground of appeal of the assessee is partly allowed. 2020 (11) TMI 259 Addition of interest finance expenses u/s 36(1)(iii) - loan advanced and availed of by the assessee company to and from its sister concern - as submitted assessee company has taken the loan from the sister concern at the low rate of 12.60% and 13.50% whereas charged the interest on the loan given to the sister concern @ 14% - HELD THAT:- Case of the assessee company has not been examined in entirety. Though ld.CIT (A) has admitted the additional evidence but the same has also not been discussed as to how the same is of no support to the assessee company. Both AO as well as ld. CIT (A) have made ad hoc disallowance on the reason that the bank statement has not been furnished by the assessee company to prove the utilization of the loan on which interest has been paid for the purpose of its business. Even it is difficult to make out the nature of the additional evidence, presumably entertained by CIT (A) for the reason that it is necessary for deciding the issue, from the impugned order. Entire findings returned by CIT (A) confirming the addition are bereft of plausible reasoning. To enhance the cause of justice, the issue is required to be factually examined in entirety by the AO by examining audited financials of the assessee company and keeping in view the fact that this is a case of loan advanced and availed of by the assessee company to and from its sister concern and during the year under assessment, its turnover has gone up to ₹ 23.41 crores from ₹ 9.92 crores. AO shall provide opportunity of being heard to the assessee company to prove utilization of the loan in question from its evidence as well as from the bank statements. Appeal filed by the assessee is allowed for statistical purposes. 2020 (11) TMI 258 Disallowance of claim of bad debts written off to bad and doubtful debt reserve account u/s 36(1)(vii) - whether the bad debt written off u/s 36(1)(vii) has also been already claimed by way of provisions made u/s 36(1)(viia) or whether claim relates to the debts appearing before AY 2007-08 would require factual verification which has not been carried out by the revenue authorities so far at any stage and thus the issue justifiably requires to go back to the file of the AO for suitable verification on this count ? - HELD THAT:- Bad debt written off u/s 36(1)(vii) does not emanate out of loans and advances for which the provisioning has been availed under s. 36(1)(viia) in any manner. As in case of Catholic Syrian Bank Ltd. [ 2012 (2) TMI 262 - SUPREME COURT] we are of the view that Section 36(1)(vii) 36(1)(viia) of the Act are distinct and independent items of deduction and operate in their respective fields. So long as the claim of bad debt does not overlap or result in dual deduction, one on account of provision of bad debt and another at the time of actual write off, there is not statutory bar in making the claim under two provisions. On facts, it is the case of the assessee that the bad debts actually written off are out of loans advances made prior to AY 2007-08 for which no provisioning under s. 36(1)(viia) of the Act could be made. The aspects on double deduction on same loan/advances requires factual verification. In case the AO finds that the bad debt written off is out of loans/advances made prior to the operation of Section 36(1)(viia) of the Act, the AO shall allow the bad debt so written off, subject to the fulfillment of other conditions of Section 36(2) of the Act. However, where it is found that the bad debts relate to loans and advances of the years where benefit to deduction under s. 36(1)(viia) of the Act to have been extended to the assessee, the AO shall appropriate and reduce the provisioning already made from write off. Assessee shall not be entitled to claim of deduction of bad debt for the same loan/advances twice, one under s. 36(1)(vii) and other under s. 36(1)(viia) - the issue is remitted back to the file of the AO for factual verification and examinations as may be considered expedient by him to determine the issue afresh. It shall be open to the assessee to make all submissions and representations before the AO on the point. The AO shall determine the issue in accordance with law after granting proper opportunity to the assessee. Disallowance of depreciation - HELD THAT:- Inadvertent over reporting of income by the assessee in its return of income to the extent of ₹ 13,85,272/- owing to mistake on the part of the assessee in making excess disallowance. We straight away observe that this issue also requires to go back to the file of the AO for factual verification of excessive disallowances wrongly made by the assessee as claimed. The AO shall grant suitable relief to the assessee where it is found that the assessee has wrongly reported excessive taxable income in its return of income indeed owing to inadvertent mistake of excessive disallowance on the point. Needless to say, the assessee shall fully cooperate in the proceedings before the AO for determination of the point afresh in accordance with law. 2020 (11) TMI 257 Disallowance in respect of job work charges paid to sister concern of the assessee - HELD THAT:- The expenditure has been purportedly incurred by the assessee on testing of the meters. The authorities below has observed that in fact the assessee was itself doing testing of the meters from its sister concern M/s. Pal Mohan Electronic Pvt. Ltd. and was receiving job work charges for testing of meters. Since the assessee itself was self equipped for testing of the meters, there was no reason for assigning job work of testing meters to M/s. Pal Mohan Electronic Pvt. Ltd. Further, except for single journal entry dated 31/3/2015 no material was furnished by the assessee before the Assessing Officer to substantiate genuineness of the expenditure. No material was placed on record by the assessee either before the CIT(A) or before the Tribunal to controvert the findings of the Assessing Officer. No merit in ground No.1 of the appeal, the same is dismissed, accordingly. Disallowance of claim of deduction u/s 36(1)(iii) - AO observed that the assessee has made borrowings of ₹ 14.21 crores during the period relevant to the assessment year under appeal and has paid interest of ₹ 1.57 cores @ 11.05% - HELD THAT:- AO while making the addition has observed that the assessee has diverted borrowed funds for non-business purposes and has debited huge interest expenditure in the P L Account. AO while holding so has not given his finding on the fact that the list of parties given by the assessee to whom advances have been allegedly made are not the suppliers of material to the assessee. AO has not named the parties to whom alleged interest free advances are given by the assessee for non business purpose.This issue needs revisit to the file of AO as directed to re-examine the issue and pass a speaking order after affording reasonable opportunity of hearing to the assessee, in accordance with law. - AO while deciding the issue afresh shall also test the alleged interest free advances on the touchstones of ratio laid down in the case of CIT vs. Reliance Utilities and Power Limited [ 2009 (1) TMI 4 - BOMBAY HIGH COURT ]. The ground No.2 is allowed for statistical purpose. Disallowance of vehicle running and maintenance expenses - AO disallowed the entire expenditure on the premise that the assessee has failed to provide copy of registration books of the vehicle, log book, etc - CIT(A) restricted the disallowance to 50% - contention of the assessee before lower authorities is that the petrol and vehicle maintenance expenses were incurred for the vehicles of directors and staff of the company at New Delhi - HELD THAT:- Taking into consideration entire facts on record, personal use of vehicles by the directors and their family cannot be ruled out, hence, after factoring for personal use of vehciles, deem it appropriate to restrict disallowance to 10% of the total expenditure claimed for petrol and vehicle maintenance. The ground No.3 of appeal is partly allowed, in the terms aforesaid. Business promotion expenses - HELD THAT:- The expenditure has been made on entertainment of customers, gifts, etc. The payment for the expenditure has been made by credit card. The disallowance has been made primarily for the reason that the assessee has failed to furnish copies of bills, vouchers, etc. Considering entire facts disallowance of 50% is on higher side. Disallowance to the extent of 10% of the expenditure claimed would meet the ends of justice 2020 (11) TMI 256 Estimation of income - bogus purchases - CIT(Appeals) restricting the disallowance to 5% - HELD THAT:- As seen from the details filed by the assessee's AR during the proceedings that the assessee has declared substantial Gross profit year after year and the GP declared for the year is 14.40% percent - fastening with high gross profit on the alleged bogus purchases would increase the the Gross profit of the assessee to abnormal percentage, which is not possible in trading, particularly in small engineering items in which the assessee is engaged in a competitive market. Therefore keeping in view the totality of facts and circumstances of the case, the disallowance made by the AO is restricted to 5% of such disputed purchases correctly - Decided against revenue. 2020 (11) TMI 255 Estimation of expenses - bogus purchases - computing the profit for the purpose of section 28 of the I.T. Act, 1961 taking in to consideration the bogus bills against which no goods have been received - CIT(A) erred in restricting the addition to @6.5% of total bogus purchases - HELD THAT:- On a perusal of the order of the Ld.CIT(A), we find that the Ld.CIT(A) considered this aspect of the matter elaborately with reference to the submissions of the assessee and the averments in the Assessment Order and restricted the disallowance to 6.5% of the non-genuine purchases - No infirmity in the order passed by the Ld.CIT(A) in restricting the addition/disallowance to the extent of 6.5% of the purchases. Grounds raised by the revenue are dismissed. 2020 (11) TMI 254 Rectification u/s 254 - scope of the proceedings before the AO pursuant to the two set of orders passed u/s.263 - HELD THAT:- Delay in filing the appeal is not condoned, there is no necessity or need to give any finding on the merits of the appeal. Though there is merit in the contention of the learned counsel for the Assessee regarding the scope of proceedings while passing the set of revisionary orders u/s.263 of the Act dated 16.1.2017, since the delay in filing the appeals were not condoned, there was no scope for giving any findings on scope of proceedings u/s.263 of the Act or recording any observations made at the time of hearing on the first set of orders u/s.263 of the Act dated 24.3.2014. In other words, those aspects did not require any consideration. The scope of proceedings u/s.254(2) of the Act are very limited to rectifying mistakes that are apparent on the face of the record. There is no such apparent mistake in the order of the Tribunal pointed out in these petitions. In the given circumstances, we are of the view that the order of the Tribunal does not suffer from any mistake apparent on the face of the record. We dismiss the miscellaneous petitions filed by the assessee. 2020 (11) TMI 253 Rectification of mistake u/s 254 - Deduction u/s. 54F - capital gain on sale of a property at HSR Layout, Bangalore, which capital gain was invested in purchase of a property at N.R. Colony - As per revenue assessee should not own more than one house, other than the new asset - as per revenue since by the Finance Act, 2014, section 54F was amended by substituting the words a residential house with one residential house and since the assessment year in this appeal is after the aforesaid amendment, the conclusions drawn by the Tribunal are incorrect and suffers from an apparent mistake - HELD THAT:- We are of the view that there is no mistake, much less an apparent mistake, in the order of the Tribunal. The Tribunal has clearly given a finding that the property at N.R. Colony belonged to one owner, Smt. Janaki Iyengar and as per the Will of Smt. Janaki Iyengar, the Ground Floor of the premises which was numbered as Door No.37 was given to Smt. Janaki s sister, Dr. M. Vaidehi and the 1st Floor numbered as Door No.37/1 was given to Smt. Janaki s nephew, Shri P. Ramanuja Chari. Both these owners of Ground Floor and 1st Floor sold the property to the assessee. The Tribunal clearly observed that the entire property constitutes one residential house, but was bifurcated with two Door Nos. for Ground Floor and 1st Floor with common entrance in Ground Floor only to earmark the share of each beneficiary and that otherwise the property constitutes a single property, though it has two different Door Nos. The Tribunal has reached the conclusion that assessee has purchased only one property and not two properties. Tribunal referred to decisions of High Court of Karnataka referred to by the Hon ble Delhi High Court and those decisions were only purely supportive, but the real conclusion of the Tribunal on facts is that the assessee purchased only one house property - there is no mistake, much less an apparent mistake, in the order of Tribunal. - Decided against revenue. Customs 2020 (11) TMI 252 Territorial Jurisdiction - Petitioner says that the order having been passed by the Deputy Director General is without jurisdiction and as such the same is required to be set aside on the jurisdiction ground alone - HELD THAT:- Justice will be subserved if the matter is remanded back to the respondent no.3 who has unlimited jurisdiction as to the value of authorisation to decide the case afresh on the basis of the show cause notice dated 6th June, 2018 appearing at page 303 of the writ petition (Annexure P- 10) issued by the respondents. All points are kept open. The petitioners shall be at liberty to rely upon the document which forms part of the writ petition. The respondents shall also be entitled to rely upon the document in their possession which does not form part of the writ petition since I have not called for any affidavit. The respondent no.3 shall be at liberty to decide the issue within 31st December, 2020 after affording an opportunity to the writ petitioners to represent its case - Petition dismissed. Corporate Laws 2020 (11) TMI 251 Condonation of delay of 201 days filed by the Appellant/Petitioner/Transferor Company - Appellant contends that the Scheme of Amalgamation is in the final stage of consideration and if such delay was not condoned, it would cause a significant adverse impact on the business operations of the Transferor as well as the Transferee Company - HELD THAT:- The Tribunal is to adopt/take lenient/liberal view of course, based on the facts and circumstances of given case. Further, the very approach of the Tribunal ought to be pragmatic and justice oriented in the considered opinion of this Tribunal. Further, the Tribunal is to assess the due diligence of parties craving for condonation. In fact, failure to adopt/resort to vigilance or extra vigilance by the concerned party ought not to be a ground for ousting it from Litigation. It is well settled principle in Law that if the explanation offered does not smack of mala fide, utmost consideration must be given to a Litigant/Suitor to condone the delay. This Tribunal, to prevent an Aberration of Justice and to Secure the Ends of Justice interferes with the impugned order passed by the NCLT, Division Bench -I, Chennai and allows the instant Appeal by condoning the delay in question. The present Appeal is allowed, but without Costs. 2020 (11) TMI 250 Restoration of the name of the strike off Company in the Register of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- As per report of the ROC on record, the name of the Company may be restored based upon the facts and material on record with suitable penalty/fine may be imposed for non-compliance of the provisions of the Companies Act, 2013 by the Company/its Directors - It is noted that the name of the company has been struck off without having any communication prior to such exercise with the Income Tax Department. It has resulted in non-recovery of revenue. The demand is not in dispute, hence, to facilitate the recovery of same, in our view it is a just cause to revive the name of the company in the Register of Companies from the date of striking off in the register maintained by ROC, Gujarat, (Dadra Nagar Haveli). It is made clear that the company is revived only for this limited purpose and its name shall remain in the Register of Companies till the recovery of dues by the Income Tax Department. Hence, requirement for filing of Annual Returns and Annual Financial Statements is waived. The Registrar of Companies, Gujarat, (Dadra Nagar Haveli) the Respondent No-1, herein, is ordered to restore the name of the Company as if the name of the Company has not been struck off from such Register - application allowed. 2020 (11) TMI 249 Restoration of name of company struck off by the Registrar of Companies - section 252(3) of the Companies Act, 2013 read with Rule 87A of the National Company Law Tribunal Rules, 2016 - HELD THAT:- The Company had fulfilled the relevant statutory compliances with the Registrar of Companies, and the name of the Company was struck off due to the technical reasons - The Appellant has been able to satisfy this bench that it has certain assets which necessitate and justify the restoration of its name in the Register of Companies. A step as stringent as what has been taken at least requires an opportunity to the appellant to take remedial measures. Merely to disallow restoration on grounds of its failure to file annual returns would neither be just nor equitable - As per several decisions of various courts it should only be an exceptional circumstance that court should refuse restoration where the company has been struck off for its failure to file annual return as that would be excessive or inappropriate penalty for that oversight. The Registrar of Companies, the Respondent herein, is ordered to restore the original status of the Appellant Company as if the name of the Company has not been struck off from the Registrar of Companies and take all consequential actions such as change of Company's status from 'Strike Off' to 'Active' (for e-filing), restoration of status of DIN etc. - Application allowed. 2020 (11) TMI 248 Restoration of name of company struck off by the Registrar of Companies - section 252(3) of the Companies Act, 2013 read with Rule 87A of the National Company Law Tribunal Rules, 2016 - HELD THAT:- It is not in controversy that the Appellant Company has not filed its Annual Return and Balance Sheet with RoC. Moreover. the dispute regarding Nil turnover of the company is also taken into consideration. But failure on the part of the Appellant and its Directors to adhere to the statutory compliances and also Nil turnover of the Company is attributed to a variety of reasons including adverse market conditions, financial issues etc. The documents relied upon by the Appellant unmistakably demonstrate that the Appellant Company is a living entity. The Appellant has been able to satisfy this bench that it has certain assets which necessitate and justify the restoration of its name in the Register of Companies. A step as stringent as what has been taken at least requires an opportunity to the appellant to take remedial measures. Merely to disallow restoration on grounds of its failure to file annual returns would neither be just nor equitable. As per several decisions of various courts it should only be an exceptional circumstance that court should refuse restoration where the company has been struck off for its failure to file annual return as that would be excessive or inappropriate penalty for that oversight. The Registrar of Companies, the Respondent herein, is ordered to restore the original status of the Appellant Company as if the name of the Company has not been struck off from the Registrar of Companies and take all consequential actions such as change of Company's status from 'Strike Off' to 'Active' (for e-filing), restoration of status of DIN etc. - Application allowed. 2020 (11) TMI 247 Restoration of name of company struck off by the Registrar of Companies - section 252 of the Companies Act, 2013 read with Rule 87A of the National Company Law Tribunal Rules, 2016 - HELD THAT:- It is not in controversy that the Appellant Company has not filed its Annual Return and Balance Sheet with RoC. Moreover, the dispute regarding Nil turnover of the company is also taken into consideration, but failure on the part of the Appellant and its Directors to adhere to the statutory compliances and also Nil turnover of the Company is attributed to a variety of reasons including adverse market conditions, financial issues etc. The documents relied upon by the Appellant unmistakably demonstrate that the Appellant Company is a living entity. This Tribunal has examined the relevant provision applicable for restoration of the name of the company as provided in Section 252 of the Companies Act 2013 and as per the facts and circumstances of the case, it will be in the interest of the Company, its Shareholders and Creditors, the name of the Company be ordered to be restored by this Bench while exercising its jurisdiction U/s 252 of the Companies Act, 2013 read with Rules made thereunder - The provisions pertaining to restoration of the name of the company has been provided in Section 252 of the Companies Act 2013, which includes that, if it is just and equitable to restore the name of the company in the Registrar of Companies, it may direct the ROC to restore the name in its Register. The Appellant has been able to satisfy this bench that it has certain assets which necessitate and justify the restoration of its name in the Register of Companies. A step as stringent as what has been taken at least requires an opportunity to the appellant to take remedial measures. Merely to disallow restoration on grounds of its failure to file annual returns would be neither just nor equitable. As per several decisions of various courts it should only be an exceptional circumstance that court should refuse restoration where the company has been struck off for its failure to file annual return as that would be excessive or inappropriate penalty for that oversight. The Registrar of Companies, the Respondent herein, is ordered to restore the original status of the Appellant Company as if the name of the Company has not been struck off from the Registrar of Companies and take all consequential actions such as change of Company's status from 'Strike Off' to 'Active' (for e-filing), restoration of status of DIN etc. - Application allowed. Insolvency & Bankruptcy 2020 (11) TMI 246 Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The date of default is 31.05.2019, that is much prior the declaration of Lock-Down period by the Government due to pandemic of COVID-19 virus - The record reveals that the Operational Creditor produced all invoices raised against the Corporate Debtor where under, bricks were sold and delivered or service rendered. It has also proved from the evidence of record that notice under Section 8 of the I.B. Code, 2016 has been served on Corporate Debtor. In view of this, there are no reason to reject the application. The Operational Complied the provision of Section 9(3)(b) and Section 9(3)(c) of the I.B. Code, by filing an affidavit stating that it did not received the amount of claim and no reply from the Corporate Debtor or received any pendency of dispute relating the same - application admitted - moratorium declared. 2020 (11) TMI 245 Direction to allow the applicant physical access to the registered office and corporate office of the Corporate Debtor to enable the applicant to take custody of the books of accounts and all other records of the Corporate Debtor - disclosure of applicant full details and particulars of the steps taken by it in relation to the assets and properties of the Corporate Debtor - HELD THAT:- Filing of an application like the one in hand as against one of the members of the CoC is found not fair and just. It is the CoC who has to give proper diction to RP to expedite the process so as to reduce the CIRP cost. If one among the members of the CoC is holding possession of secured interest and registered office of the CD, keeping in hand even long after the initiation of CIRP, it is improper and contrary to the provisions of the Code. The submission of the Ld. Counsel for the R1 that the only predicament of the R1 in not allowing the Resolution Professional to get access to the Registered Office of the Corporate Debtor in the absence of any specific order from the Adjudicating Authority because of litigious nature of the Corporate Debtor and its suspended directors is found devoid of any merit. R1 is bound to hand over all the assets in its possession inclusive of the registered office. In view of the facts that SBI holds possession of the registered office and according to R4 to R6 all the documents are kept in the office, unless and until it is open, the RP could not ascertain what further documents or information is required from R4 to R6 - R1/State Bank of India is directed to forthwith hand over possession of all the assets of the CD and the registered office and corporate office of the Corporate Debtor in its possession to the RP - Application allowed. 2020 (11) TMI 244 Direction for payment of professional fees - extension of the cooperation of the Corporate Debtor and its personnel i.e. promoters, directors etc. to the RP - section 19 of the IB Code - HELD THAT:- It is clear that on the garb of the instant application, which is filed under section 19 of the IB Code, RP is seeking direction for reimbursement of his payment from Respondent No. 3 and 4. The very impleadment of the Respondent No. 3 and 4 in the instant application is not only bad in the eye of law but is blatant misuse of the process of law and thereby, the Respondent No. 3 and 4 are dragged before this Bench for no fault of them. Consequent upon which, they are compelled to file their reply, causing loss not only in the form of pecuniary as well as mental and physical harassment. Such type of act is not expected from the RP. The instant application is dismissed as against the Respondent No. 3 and 4 with a cost of ₹ 30,000/- to be paid to the Respondent No. 3 only, as Respondent No. 4 neither shown his presence nor filed any reply. 2020 (11) TMI 243 Maintainability of application - initiation of CIRP - Debt relates to invoice raised for audit fees and other professional work done in the Financial Year 2017-2018 and 2018-2019 - time limitation - HELD THAT:- The amount of debt is more than ₹ 1 lacs which is not barred by law of limitation. The said amount has not been paid and no plausible defence has been put forward by Corporate Debtor. The Applicant has also provided MCA Data of the Corporate Debtor. The application is otherwise complete and defect free. It is also noted that no disciplinary proceedings are pending against the IRP whose consent is on record. Hence, he can be appointed to conduct Corporate Insolvency Resolution Process (CIRP). Application admitted - moratorium declared. 2020 (11) TMI 242 Validity of retraction of resolution to approach the Central Government for its approval with regard to the remuneration of the Applicant passed in the seventh meeting of the Committee of Creditors held on 30.08.2018 - compliance with the directions of the Committee of Creditors in the meeting held on 26.04.2018 to make an application to the Central Government seeking approval for the remuneration paid to the Applicant - reimbursement of legal expense incurred by the Applicant - HELD THAT:- It is seen that the instant IA was filed during the period of CIRP of the Corporate Debtor and any action on the part of the RP for getting approval from the Central Government required CoC's approval with ' the requisite majority which was not forthcoming. Meanwhile this Adjudicating Authority vide its order dated 26.07.2019 in 1A Nos. 544 680 of 2019 has passed an Order of Liquidation. In view of the Liquidation of the Corporate Debtor, this Adjudicating Authority deems it proper not to adjudicate upon the instant IA at this point of time and feels it proper to direct the Applicant herein to approach Liquidator for the relief in relation to the approval of remuneration by Central Government - application disposed off. Service Tax 2020 (11) TMI 241 Recovery of service tax dues of the company from the director - Attachment of his personal bank account by respondent - recovery of dues from the assessee-company under the Finance Act, 1994 - HELD THAT:- Any show cause notices issued to the assessee-company during the adjudication proceedings does not amount to notice to the petitioner in his personal capacity. Admittedly no notice was ever issued to the petitioner personally prior to the passing of the impugned demand notices dated 21st May, 2019 and 09th November, 2019 and/or the attachment order dated 08th June, 2020. In fact, during the course of final hearing, this Court had put a pointed question to the Principal Commissioner, CGST, as to whether the respondents would like to give a fresh notice to the petitioner clearly mentioning as to how the petitioner was liable for tax dues of the assessee-company. However, the Principal Commissioner informed this Court that the department has no material against the petitioner other than the fact that he was a Director of the assessee-company. The impugned order is in violation of principles of natural justice - writ petition is allowed without costs. 2020 (11) TMI 240 100% EOU - Refund of CENVAT Credit - denial on the ground that both the input service and output service fall under the information technology services and also on the ground that the amounts credited as per Foreign Inward Remittance Certificates (FIRC) are prior to the date of export invoices - proper proof of export was not provided and there was no clarification as to whether the software is an input service for the services exported by them - HELD THAT:- From the documents presented including the agreement which the appellant had with M/s Softential Inc USA, the invoices , the FIRCs, the statement by the banker and the set off letter issued by the RBI we were convinced that what the appellant had imported is a software which they used to produce their export services. In fact, the service tax on the imported input service was paid by the appellant themselves under reverse charge mechanism under section 66A of the Finance Act, 1994. They have reflected this payment of service tax in their ST-3 returns. There is nothing on record or in the submissions made by both parties before us to show that the Department has objected to they paying service tax. After paying the service tax the appellant has taken Cenvat Credit of the service tax paid treating the same as input service and showed it in their ST-3 returns. The Department has not objected to the appellant s taking Cenvat Credit. It is evident that the Department has accepted that the Cenvat Credit has been taken on the input service by the appellant. It is now a well established principle that once Cenvat Credit is allowed on any goods or services as inputs or input service they do not cease to be so while processing a refund claim under Rule 5 of Cenvat Credit Rules, 2004. There is no separate definition of input or input service either in Rule 5 of Cenvat Credit Rules, 2004 or in Notification No. 5/2006-CE. Therefore, the definition under Rule 2 of Cenvat Credit Rules, 2004 applies both to taking CENVAT credit and claiming its refund under Rule 5. Whether the input service so used is an input service used for export service or it is an input service used for some other service, such as domestically sold services? - HELD THAT:- During the relevant period, only refund of Cenvat Credit on input service used in providing output service which was exported was allowed. Therefore, there can be cases where the input service was for output service A which is domestically sold but not an input service for output service B which is exported. However, in this particular case the unit is a 100% export oriented unit and there is no domestic sale. Therefore, there is no scope for such an apprehension. Export proceeds were realised even before the invoices were issued - HELD THAT:- The FIRCs do not show the invoice numbers and therefore there is doubt whether any foreign exchange has been realised at all against the so called exported services. Learned Counsel clarified that they had got a certificate from the Chartered Accountant certifying that the FIRCs pertain to receipts of foreign exchange for the exports concerned - The FIRCs, in the standard format, do not usually indicate the invoice numbers. If the importer or exporter has a running account the exports may take place continuously and the overseas buyer may keep remitting from time to time. It can only be clarified by the Chartered Accountants or the banks or auditors as to which payment the remittances in the FIRCs pertain to. In this case, such a statement was provided by the bank. A set off letter has been received in respect of appellant from the RBI. Therefore, this apprehension of the Department that the export proceeds have not been realised is not well founded. Grant of Interest - HELD THAT:- Hon ble High Court of Gujarat, has, in the case of Reliance Industries Limited.,[ 2011 (7) TMI 1141 - SC ORDER ] held that refund of Cenvat Credit under Rule 5 of Cenvat Credit Rules, 2004 is also a refund under section 11B of the CEA, 1944 and therefore, the provisions of interest under Section 11BB apply and this decision was upheld by the Hon ble Supreme Court by dismissing the SLP filed by the Revenue. Therefore, the appellant is also entitled to interest on refund under Rule 5 of Cenvat Credit Rules, 2004. The appellant is entitled to refund under Rule 5 of Cenvat Credit Rules, 2004 along with interest under Section 11BB as applicable - Appeal allowed - decided in favor of appellant. Central Excise 2020 (11) TMI 239 Clandestine Manufacture and removal - Pan Masala and scented zarda - Release of applicant on Bail - benefit of Section 436-A of Cr.P.C. - HELD THAT:- The applicant evaded the excise duty by procuring the raw material and also not accounting the clandestine and surreptitious production in the statutory books. The clandestinely manufactured goods were supplied in the market without cover of lawful documents.The applicant is the master mind and beneficiary of entire scheme of duty evasion . The applicant had knowingly and willingly made distance in order to create a veil and to escape legal liabilities cast upon him. According to section 9AA of Central Excise Act, every person who at the time, the offence was committed was in charge shall be severally and jointly liable for being prosecuted for the aforesaid offence. There is nothing in the Act that the prosecution depends upon the result of the adjudication. Two proceedings are quite independent . The finding in one is not conclusive in the other proceedings. Both can go on simultaneously and finding in the adjudication proceedings is not binding on the criminal proceedings.A prosecution can be launched even after the completion of adjudication. Since the offence under section 9 (1A) Excise Act is cognizable and nonbailable and is grievous in nature, hence this Court does not deem it congruous to interfere in such matters. The bail application filed on behalf of the applicant stands rejected. Whether the benefit of Section 436-A Cr.P.C. can be extended to the applicant to release him on bail merely because he has served half of the maximum sentence prescribed under sections 9, 9AA of the Central Excise Act, 1944? - HELD THAT:- The explanation to Section 436-A Cr.P.C. places a restriction that in case there is a delay in proceeding caused by the accused, the period of detention shall be excluded for granting bail - a person cannot claim as a matter of right to be released on bail merely because he was under detention for half of the maximum sentence prescribed, as when there is lapse on the part of the accused to delay the proceeding, such benefit will not be extended to him. The applicant is not entitled to the benefit of Section 436-A Cr.P.C. His detention is justified for longer period than he has already undergone. The bail is granted to the applicant - bail rejected. 2020 (11) TMI 238 CENVAT Credit - credit on FFC MTOP - CBEC Instruction F.No. 06/03/2013/CX.1 dated 10.11.2014 - HELD THAT:- The Hon ble High Court in M/S. INOX AIR PRODUCTS PVT. LTD. (PREVIOUSLY, M/S. INOX AIR PRODUCTS LTD.) VERSUS UNION OF INDIA, COMMISSIONER OF CENTRAL EXCISE, M/S. STEEL AUTHORITY OF INDIA LIMITED [ 2020 (8) TMI 225 - MADRAS HIGH COURT ] has considered the disallowance of credit on MTOP FFC charges and held that the appellant herein has to be allowed to avail the Cenvat credit of MTOP FFC charges. Further, it has to be noted that the appellant has paid Central Excise duty on these charges and therefore, the department cannot deny the credit availed after collecting the excise duty - demand do not sustain - appeal allowed - decided in favor of appellant. Indian Laws 2020 (11) TMI 237 Dishonor of Cheque - offence punishable under Section 138 of Negotiable Instrument Act - contention of the complaint was in corroboration, with evidence, collected by the Magistrate, during enquiry - HELD THAT:- It is apparent that a complaint for offence punishable, under Section 138 of N.I. Act, of Police Station Quarsi, District Aligarh, was filed in the court of Chief Judicial Magistrate, being Complaint Case No.12 of 2018, by Shamsher against Babu Khan, with this contention that both of them were under acquaintance. On 15.6.2015, Rupess Three Lakhs and Fifty Thousand and on 20.6.2017, Rupees Two Lakhs, in all Rupees Five Lakhs and Fifty thousand, was taken by Babu Khan, for purchasing a house and solemnising marriage of his daughter and this money was paid by the complainant from the amount obtained by sale of his house, situated at Delhi. Subsequently, money was demanded back, but, it was not paid back. This Court, in exercise of inherent power, under Section 482 of Cr.P.C., is not expected to make analytic analysis of factual aspects because the same is a question, to be gone into, during course of trial, by the Trial court. This Application, under Section 482 of Cr.P.C., merits dismissal and it stands dismissed.
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