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Newsletter: Where Service Meets Reader Approval. TMI Tax Updates - e-Newsletter June 18, 2021 Case Laws in this Newsletter: GST Income Tax Benami Property Customs Corporate Laws Insolvency & Bankruptcy PMLA Service Tax Central Excise Indian Laws Articles GST COUNCIL's TAX RELIEF FOR COVID MANAGEMENT Are Winnings from Online Betting Taxable in India? ISD and Cross Charge under GST: Complimentary or Supplementary News Cabinet approves Deep Ocean Mission Cabinet approves Nutrient Based Subsidy (NBS) rates for Phosphatic & Potassic (P&K) Fertilisers for the year 2021-22 Repayment of ‘6.17% Government Stock 2021’ Notifications Customs S.O. 2381 (E) - dated 17-6-2021 - Cus (NT) Corrigendum - Notification No. 53/2021-Customs (N.T.), dated the 16th June, 2021 54/2021 - dated 17-6-2021 - Cus (NT) Supersession Notification No.51/2021-Customs(N.T.), dated 3rd June, 2021 53/2021 - dated 16-6-2021 - Cus (NT) Tariff Notification in respect of Fixation of Tariff Value of Edible Oils GST - States S.O. 106 - dated 16-6-2021 - Bihar SGST Seeks to amendment Notification No. S.O. 197, dated the 17th December, 2020 F-A-3-02-2021-1-V (29) - dated 10-6-2021 - Madhya Pradesh SGST Madhya Pradesh Goods and Services Tax (Amendment) Rules, 2021 F A-3-26-2019-1-V-(25) - dated 10-6-2021 - Madhya Pradesh SGST Amendment in Notification No. F A-3-26-20 19-1-V-(53), dated the 29th June, 2019 F A 3-45-2020-1-V(31) - dated 10-6-2021 - Madhya Pradesh SGST Madhya Pradesh Goods and Services Tax (Amendment) Rules, 2020 F A 3-07-2021-1-V (26) - dated 10-6-2021 - Madhya Pradesh SGST Seeks to extend specified compliance falling between 15.04.2021 to 30.05.2021 till 31.05.2021 586/XI-2-21-9(47)/17- U.P.Act-1-2017-Order- (181)-2021 - dated 16-6-2021 - Uttar Pradesh SGST Amendment in Notification No. KA.NI.-2-842/XI-9(47)/17-U.P.Act-1-2017-Order-(09)-2017 Dated June 30, 2017 Circulars / Instructions / Orders GST - States Trade Circular No. 11 T of 2021 - dated 15-6-2021 Standard Operating Procedure (SOP) for implementation of the provision of extension of time limit to apply for revocation of cancellation of registration under section 30 of the MGST Act, 2017 and rule 23 of the MGST Rules, 2017 GST 149/05/2021 - dated 17-6-2021 Clarification regarding applicability of GST on supply of food in Anganwadis and Schools 150/06/2021 - dated 17-6-2021 Clarification regarding applicability of GST on the activity of construction of road where considerations are received in deferred payment (annuity)- 151/07/2021 - dated 17-6-2021 Clarification regarding GST on supply of various services by Central and State Board (such as National Board of Examination) 152/08/2021 - dated 17-6-2021 Clarification regarding rate of tax applicable on construction services provided to a Government Entity, in relation to construction such as of a Ropeway on turnkey basis 153/09/2021 - dated 17-6-2021 GST on milling of wheat into flour or paddy into rice for distribution by State Governments under PDS 154/10/2021 - dated 17-6-2021 GST on service supplied by State Govt. to their undertakings or PSUs by way of guaranteeing loans taken by them 155/11/2021 - dated 17-6-2021 Clarification regarding GST rate on laterals/parts of Sprinklers or Drip Irrigation System FEMA 07 - dated 17-6-2021 Liberalised Remittance Scheme for Resident Individuals – Reporting Highlights / Catch Notes Income Tax Reopening of assessment u/s 147 - disallowance u/s 36(i)(ii) for directors remuneration - Assessee argued absence of any fresh material in the possession of the AO and that too after the expiry of four years - As an assessing officer, the respondent cannot take a different view for the assessment year 2007-2008 from the view is taken for the assessment year 2008-2009 by the Commissioner of Income Tax (Appeals) - HC Visit to Get Source Disallowance being pre-operative expenses on the reason that date on which VAT license was obtained was the date of commencement of business and not the date of incorporation - When the first steps are taken by the assessee, business is said to be set up, based on which commencement of purchase and sales activities will start. In view of these facts, we are of the opinion that the business is said to be commenced from the date of placing purchase order i.e., on 6.10.2010 and all expenditure incurred from this date i.e., 6.10.2010 to be considered as business expenditure and to be allowed accordingly. - AT Visit to Get Source Reopening assessment u/s. 148 - incomplete information and unconcluded proceedings - even on merits, the case of the Revenue has no legs to stand in absence of any material in support of any revaluation/enhancement in value of the property by the stamp duty authority and the addition so made is hereby directed to be deleted. Appeal of the assessee is allowed. - AT Visit to Get Source Income received from letting of the premises - Mthough the Assessing Officer has discarded the claim of the assessee stating that it is a related party transaction, but the provisions of section 40A(2) of the Act have never been invoked. - Assessing Officer himself has extracted the relevant clauses of lease deed himself showing that the lessor has agreed to provide services which have been enumerated hereinabove elsewhere. - taxable as income from other sources' u/s 56 (2) (iii) - AT Visit to Get Source Reopening of assessment - capital gain on sale of property - the revised valuation as so determined in respect of both the properties works out to less than 10% of the actual sale consideration as declared by the assessee and considering the fact that valuation is always a matter of estimation where some degree of difference is bound to occur which even the legislature has lately recognized and has introduced the tolerance limit of 10% which have consistently been held by various Benches as curative in nature, such a difference needs to be ignored and declared sale consideration be accepted. - AT Visit to Get Source Reopening of assessment - capital gain on sale of property - assessee was appointed as the power of attorney holder by the owner in respect of her immovable property - sale in “Individual capacity” as against “representative assessee of owner" - the order so passed by the AO in the impugned set-aside proceedings u/s 147/144/set-aside has been passed in the capacity of the assessee as representative assessee of owner and continues to carry the same consequences and implication in terms of section 160, 161 and 162 of the Act as the original order passed u/s 147/144 except for the variation of the fair market value which the assessee has challenged and we shall be dealing while adjudicating the subsequent ground of appeal. - AT Visit to Get Source Customs Enhancement of rate of duty - Crude Palm Oil of Edible Grade in bulk - Effective date - The two requirements are to be complied, namely, publication of the said Notification and offering of the same for sale by the Directorate of Publicity and Public Relations of the Board, New Delhi. This is to ensure that on the date the said Notification comes into force, the same is published and available to the persons to whom it would apply. - HC Visit to Get Source Indian Laws Dishonor of Cheque - Admittedly, the cheques, on being presented, were dishonoured with the remark "exceeds arrangement" meaning thereby there were no sufficient balance therein to cover the said amount and, therefore, it satisfies the ingredients of Section 138 of the Act - The evidence of rebuttal is neither probable nor plausible in the perspective of a prudent man and I am, therefore, amazed how the learned Magistrate have found fault into such transactions. - HC Visit to Get Source IBC Requirement on the side of Adjudicating Authority to issue notice to the Personal Guarantor at the time of appointing RP - Section 95 of IBC, 2016 - Non-issuance of notice at the time of appointment of RP cannot be held to be a violation of the Principles of Natural Justice, since these cannot be rigid and their applicability depends on the demand of the law and situation. Further, there is no straight jacket formula applicable to the principles of natural justice, which can be followed in each and every case - Tri Visit to Get Source Initiation of CIRP - real estate project - The nature of Debt is a "Financial Debt" as defined under section 5(8) of the Code. It has also been established that there is a "Default" as defined under section 3(12) of the Code on the part of the Debtor. The two essential qualifications, i.e., existence of 'debt' and 'default', for admission of a Petition under section 7 of the I & B Code, have been met in this case - Tri Visit to Get Source Service Tax Levy of penalty - delayed payment of service tax - When the tax amount stands already deposited with interest, the very SCN was not required to be issued under Section 73(3). Merely because the tax amount has been deposited on the basis of ascertainment by the Department, the assessee cannot be deprived of the benefit of aforesaid provisions, more so in view of the fact that no evidence has been adduced in the SCN that there was a deliberate short payment. - AT Visit to Get Source SEZ unit - Refund of Service Tax - Management or Business Consultant Service - period from July 2017 to September 2017 - claim was filed on 29/05/2018 - rejection refund claim has been filed beyond one year from the end of the month in which actual payment of service tax was made by the claimants - The impugned order rejecting the refund claim on time bar is not sustainable in law - AT Visit to Get Source Case Laws: GST 2021 (6) TMI 562 Exemption from GST - Municipality - Local Authority - Fee from parks - Market fee-daily - Market fee -weekly - Fish Market weekly - Fee for bays in bus stand - Bus Stand Others-Charges for TV Advt in bus-stand - Bus Stand Others-Locker rent provided in bus stand - Slaughter House fees - Fees for pay and use toilets bus stand and other common places - Fee for entry vehicle bus stand-two wheeler stand - Direct charge or Reverse charge - scope of Advance Ruling - services through tender contractors - services rendered and contractors are not agents - Annual track rent-Cable Operator laying fee (optical fiber laying fee) - Renting of building-Residential purpose - Whether the renting of immovable property service rendered by them as a local authority to Pure state Govt. offices, Co-operative society and Nationalised Banks are exempt or not? - HELD THAT:- In the case at hand, the applicant is a Municipality, which is a local authority and is not a Governmental Authority. Therefore, this entry does not have any application to the applicant. Advance Ruling is applicable to the supplies currently being made or proposed to be made as per S.95 of the GST Act. In that count also, the application in hand being filed after 26.07.2018, the date effective which, the words, Local Authority stands omitted, sl.No. 4 of the notification No. 12/2017-C.T.(Rate) dated 28.06.2017 do not have any application and this claim is rejected. Fee from Park - HELD THAT:- It is stated that the fee is collected for allowing the public, entry to the park maintained by the applicant. As per entry (1) of the Twelfth Schedule above, Provision of Urban amenities such as Parks is a function bestowed with the Municipality under Article 243 W of the Constitution. The applicant being a local authority is to provide such urban amenities as a public authority - The said activity when provided by the applicant, as per Notification No. 14/2017-C.T.(Rate) dated 28th June 2017 as amended with effective from 26.07.2018, is neither a supply of goods nor supply of service and not taxable to GST. Market fees - Daily - weekly - HELD THAT:- The considerations collected based on the infrastructure extended to the farmers/merchants and the entities brought for sale are to convenient the public, wherein the applicant acts as a Public authority , in relation to the function Markets Fairs listed in the Eleventh Schedule. The said activity when provided by the applicant, as per Notification No. 14/2017-C.T.(Rate) dated 28th June 2017, is neither a supply of goods nor supply of service and not taxable to GST. Fees for bays in bus-stand - HELD THAT:- The applicant undertakes the above activity as a public authority and therefore, the said activity when provided by the applicant, is neither a supply of goods nor supply of service as per Notification No. 14/2017-C.T.(Rate) dated 28th June 2017 as amended effective from 26.07.2018. Bus-stand others - HELD THAT:- This activity need not be considered. Locker rent - HELD THAT:- Entry at (1) states Provision of urban amenities and facilities such as parks, gardens, playgrounds. Here, the activity is providing Lockers in the Bus-stand which is not in the genre stated in the said entry. Therefore, providing lockers in the Bus-stand is not an activity in relation to the function at (1) of the Twelfth Schedule and hence, Notification No. 14/2017-C.T.(Rate) dated 28th June 2017 as amended is not applicable to this activity. Slaughter house fees - HELD THAT:- The applicant has stated that the same is in relation to the function at (r) Regulation of slaughter houses and tanneries of the Twelfth Schedule of the Constitution. The applicant undertakes the above activity as a public authority and therefore, the said activity when provided by the applicant, is neither a supply of goods nor supply of service as per Notification No. 14/ 201 7-C.T. (Rate) dated 28.06.2017 as amended effective from 26.07.2018. Fees on Pay 85 use Toilets - HELD THAT:- Providing toilets for use of Public in public places is a public amenity of Public conveniences and therefore, allowing use of toilet is an activity in relation to function at (q) of the Twelfth schedule entrusted to a Municipality under Article 243 W. The applicant undertakes the above activity as a public authority and therefore, the said activity when provided by the applicant, is neither a supply of goods nor supply of service as per Notification No. 14/2017-C.T.(Rate) dated 28th June 2017 as amended effective from 26.07.2018. Cycle Stand, Scooter, Auto/ scooter two wheeler stand in Bus-stand - HELD THAT:- Public amenities including street lighting, parking lots, bus stops and public conveniences is listed at (q) of the said Schedule. The applicant provides parking lots which is an activity specified in the said entry. The applicant undertakes the above activity as a public authority and therefore, the said activity when provided by the applicant, is neither a supply of goods nor supply of service as per Notification No. 14/2017-C.T.(Rate) dated 28th June 2017 as amended effective from 26.07.2018. Whether services through tender contractors, they are covered under Twelfth Schedule to Article 243W of the Constitution? - HELD THAT:- In the case at hand, from the terms of the tender documents and the contract agreements furnished before us, we find that the contractors are vested with the right to collect the fees fixed by the applicant for various activities through a tender process - The contractor then enters into an agreement with the applicant. On entering into the agreement and paying the bid amount to the applicant, the contractor holds the actual possession of the situation in respect of the activity covered in the said contract and is a public servant only for the purposes of Tamilnadu District Municipalities Act , through which the contractor is legally enabled to collect the fees fixed for various activities, for which he had successful won the tender. This being the situation, the claim of the applicant that the service provided by them to such contractors could not be termed as Service is without any merit and is not accepted. Supply of Rights held by the applicant to the contractors through the tender process is a supply made by the applicant to the contractors, who are business entities for furtherance of their business and is not an activity in relation to the functions entrusted under Article 243 G/243W and therefore the considerations received from the successful contractors are liable to tax. Whether in respect of the services rendered by them from Sl.No. 1 to 13 through tender contractors are covered under Twelfth schedule to Article 243 W of the Constitution and /or exempted, it has been brought out clearly that the contractors are not agents? - HELD THAT:- The contractors being not agents of the applicant and the applicant supplying the Right to undertake certain activities to the contractors, who are independent entities, the Question raised by the applicant with regard to supply undertaken by their contractors is not answered as per S.95(a) readwith S.103(1) of the GST Act. Annual track rent-Cable Operator laying fee (optical fiber laying fee) - HELD THAT:- On perusal of the document C1/2715/2017 dated 02.04.2018 issued to M/s. JIO digital, it is seen that permission is granted to lay OFC cable alongside the length of road, on payment of Road Cutting Charges and annual track rent charges. It is further stated that the Track rent is accounted under Accounting head 1110 and the Road cutting charges (Road restoration) is accounted under Accounting head 1041. From the above, it is evident that while Annual Track rent is a recurring charge to be paid by the service recipient, the Road cutting charges (Road restoration) is a onetime charge collected while laying the OFC initially - the supply of allowing the road cut for laying the OFC and allowing the space alongside the road for the OFC lines are not `composite supply in as much as these two supplies are not made in conjunction with each other in the ordinary course of business. Renting of building-Residential purpose - HELD THAT:- Sl.No. 12 of Notification 12/2017 dated 28.06.2017, Heading 9963 or Heading 9972 exempts services by way of renting of residential dwelling for use as residence without imposing any conditions. In the case at hand, the exemption provided in the said entry will be applicable to the applicant, in case of the applicant providing the residential dwellings owned by them for use as residence. Whether the renting of immovable property service rendered by them as a local authority to Pure state Govt. offices, Co-operative society and Nationalised Banks are exempt or not? - HELD THAT:- Any service provided by Central Government, State Government, Union territory or a local authority to another Central Government, State Government, Union territory or local authority, which is not included in the Proviso therein, is exempted under SI.No. 8 of the Notification 12/2017 dated 28.06.2017. In the case at hand, the applicant is a Local Authority and therefore, the service of Renting of Immovable Property service, supplied to Central Government, State Government are exempted vide this entry - thus, renting of immovable property service provided by the applicant to another central/state government, union territory or local authority is exempted from tax as per Si. No. 8 of Notification 12/2017 dated 28.06.2017. The said exemption is not available in respect of Co-Operative Societies and Nationalised banks. 2021 (6) TMI 559 Rejection of petitioner's bid (highest bidder) - contract awarded to the second highest bidder - rejection on the ground that material facts were suppressed - total figure mentioned was ₹ 10982.01, while it was claimed to be ₹ 10982.27 - small variation in the calculation of service tax amount due to rounding off - HELD THAT:- Reliance placed on Section 170 of the CGST Act, 2017 at this stage when the bidder is supposed to quote the price, is misconceived. Such exercise of rounding off the tax figure will be at a subsequent stage when the actual filing of returns and payment of tax arises and not at an interim stage particularly not at the stage where the price has to be quoted while submitting the bid. The Court finds no error having been committed by the Tender Inviting Authority in rejecting the Petitioner's prayer - Petition dimsissed. Income Tax 2021 (6) TMI 560 Deduction u/s 80IB - whether the approval of the Project and completion date is as per section 801B(10) of the Act or not? - HELD THAT:- Following the ratio laid down in own case [ 2013 (11) TMI 1745 - ITAT CHENNAI] and M/S. SANGHVI AND DOSHI ENTERPRISE [ 2012 (12) TMI 84 - MADRAS HIGH COURT] , THE COMMISSIONER OF INCOME TAX VERSUS M/S. VANDANA PROPERTIES, [ 2012 (4) TMI 54 - BOMBAY HIGH COURT] and COMMISSIONER OF INCOME-TAX VERSUS RADHE DEVELOPERS [ 2011 (12) TMI 248 - GUJARAT HIGH COURT] the questions of law are decided against the Revenue and in favour of the assessee 2021 (6) TMI 557 Reopening of assessment u/s 147 - disallowance u/s 36(i)(ii) for directors remuneration - Assessee argued absence of any fresh material in the possession of the AO and that too after the expiry of four years - HELD THAT:- For the assessment year 2008-2009, the assessment was sought to be reopened on similar grounds under a similar notice Section 148 of the Income Tax Act, 1961. The Commissioner of Income Tax (Appeals) vide order dated 15.12.2017 has dropped the proceeding. Reopening of the completed assessment based on change of opinion has been frowned upon by the Apex Court by its several decisions. The decision cited by the petitioner are squarely applicable facts and circumstances of the case. Even if the matter is remitted back to the respondents to pass a speaking order, no useful purpose would be served as the respondents appear to have accepted the views of the Commissioner of Income Tax (Appeals) vide order dated 15.12.2017 for the assessment years 2008-2009 under similar circumstances. The respondents have also not produced any documents to show that the said order of the Commissioner of Income Tax (Appeals) has been appealed against before the Income Tax Appellate Tribunal and an Appeal is pending as on dated. Therefore, even on merits it is not permissible to the respondents to proceed with the impugned proceeding contrary to the said order. As an assessing officer, the respondent cannot take a different view for the assessment year 2007-2008 from the view is taken for the assessment year 2008-2009 by the Commissioner of Income Tax (Appeals) in the light of the decision of the Hon'ble Supreme Court, Union of India Vs Kamalakshi Finance Corporation Limited[ 1991 (9) TMI 72 - SUPREME COURT] - This Court is inclined to allow this writ petition. 2021 (6) TMI 556 Reopening of assessment u/s 147 - whether there was true and full disclosure by the petitioner at the time of assessment? - whether the petitioner is entitled to state that the impugned proceedings were on account of change of opinion? - HELD THAT:- Before the assessment was completed, the petitioner s auditor has clearly stated that the petitioner was trader of rights in films and that the petitioner has not claimed any appreciation and consequently there is no schedule for the same. In the said communication, the auditor has also called upon the respondent to inform as to which of the transactions and which of the agreements were required. It is thereafter the assessment was completed under section 143 (3) on 19.12.2011. Before the assessment order was passed, a personal hearing was also held on 04.08.2011. Though the assessment order has been passed by the predecessor of the respondent, it does not reveal any proper reasonings. Nevertheless, it cannot be said that the petitioner was guilty of failure to disclose truly and fully all material facts necessary for completing assessment for the assessment year 2009-2010. Therefore, the impugned exercise of the respondent invoking section 148 of the Income Tax Act, 1961 for the purpose of first proviso to section 147 has to be held on account of change of opinion by the respondent. Thus the impugned communication overruling the objection of the petitioner against reopening of the assessment is liable to be quashed. Accordingly, it is quashed. This Writ petition stands allowed. 2021 (6) TMI 547 Deduction u/s. 35D - Preliminary expenditure incurred towards ROC fees for authorised share capital - HELD THAT:- Once section 35D is introduced, fee paid to ROC before its commencement for registering company under the provisions of the Companies Act, 1956 is eligible for deduction u/s. 35D of the Act. In the present case, the assessee claimed 1/5th of total expenditure of ₹ 28,59,020 i.e., ₹ 5,71,804. Accordingly, the same has to be allowed as deduction u/s. 35D of the Act. This ground of the assessee is allowed. Disallowance being pre-operative expenses on the reason that date on which VAT license was obtained was the date of commencement of business and not the date of incorporation - HELD THAT:- In this case, the reason for not allowing expenses is that the assessee has not set up business and business was set up only from the date of obtaining VAT registration. As seen from the facts of the case, the assessee was incorporated under the Companies Act on 30.8.2010 and made all arrangements to start the business from the date of introducing the capital on 15.9.2010 and took the premises for operation of its business from 10.10.2010. Key management personnel were also appointed on 2.11.2010. Import/Export license was obtained on 23.11.201. First Purchase Order was placed on YEC Japan in order to purchase goods on 6.10.2010 0 and VAT registration was obtained on 24.12.2010. All these things suggest that the assessee was ready to start its business and in our opinion, it is not necessary or mandatory to obtain registration so as to say that the company has set up its business. Based on the reason of not obtaining VAT certificate, it will not lead to conclusion that business was not set up, though purchase of goods would amount to commencement of business under the said Act, there are various activities to be commenced to carry the activities by the assessee. All the activities are integral part of business of assessee and they are continued activities. When the first steps are taken by the assessee, business is said to be set up, based on which commencement of purchase and sales activities will start. In view of these facts, we are of the opinion that the business is said to be commenced from the date of placing purchase order i.e., on 6.10.2010 and all expenditure incurred from this date i.e., 6.10.2010 to be considered as business expenditure and to be allowed accordingly. This ground of assessee is partly allowed. 2021 (6) TMI 545 Addition u/s 43B - Belated payment of employee s contribution to PF and ESI - Whether CIT(A) failed to consider that the employees contribution to EPF and ESI as duly paid before the due date of filing the return of income and thereby erred in disallowing the same? - HELD THAT:- Following the decisions of CAF D LAKE PRIVATE LIMITED [ 2021 (2) TMI 634 - ITAT HYDERABAD] on the earlier occasion had held that the provisions of section 43B of the Act can be invoked on the assessee if the employee s contribution towards EPF ESI deducted from the employee s salary by the assessee is not remitted in the Government Treasury within the due date specified under the EPF ESI Act. No hesitation to uphold the order of the Ld. CIT (A) as well as the Order of the Ld. AO on the issue. - Appeal of the assessee is dismissed. 2021 (6) TMI 544 Penalty levied u/s 271(1)(c) - non-disclosure of the contract works and addition made on estimated basis - HELD THAT:- We observe that the penalty has been imposed by the Assessing officer on the estimated additions and rejected books of accounts of the assessee applying sec.145(3) of the Act for furnishing inaccurate particulars leading to concealment of income u/s 271(1)(c ) of the Act. On a similar issue the coordinate bench of this Tribunal [ 2021 (5) TMI 437 - ITAT HYDERABAD] has decided the appeal in favour of the assessee holding that penalty cannot be imposed on estimated additions made by the Assessing officer. Appeal of the assessee is allowed. 2021 (6) TMI 543 Undisclosed investment in construction of factory building on the basis of report of DVO - Adoption of PWD rates as against CPWD rates - HELD THAT:- We agree with the contention advanced by the ld AR that where the factory building is situated within the jurisdiction of state PWD, State PWD rates should be applied for estimation of cost of construction of the factory building and not CPWD rates. The same is the consistent position taken by this Bench and other Jaipur Benches following the decision of Hon'ble Supreme Court in the case of CIT Vs. Sunita Mansingha [ 2017 (4) TMI 303 - SUPREME COURT] . The assessee during the course of assessment proceedings has raised similar objections regarding adoption of CPWD rates and submitted a report of registered valuer M/s V.G. Architects and Engineers dated 28.11.2015 who have estimated the cost of construction by applying PWD rates at ₹ 1,10,53,509/- as against ₹ 2,09,16,010/- determined by the DVO.Therefore, we direct the AO to adopt the value of ₹ 1,10,53,509/- as determined by the registered valuer as relevant for the year under consideration. We are not inclined to interfere with the report of the registered valuer as regard various adjustments made by him to the plinth area rate where the ld AR has contended that the adjustments should be made as per report of the DVO for the reason that firstly, no such contentions have been raised before the lower authorities and the same have been raised for the first time before us, no reason has been specified as to why such contentions should be accepted at this stage and more importantly, as to how the adjustments so made is not in accordance with accepted valuation methodology as relevant in the facts of the present case. We find that registered valuer is an expert in the field of valuation as is the case with DVO and unless, there is some fundamental flaw in their valuation methodology adopted by them as we have noted above in terms of PWD rates vis- -vis CPWD rates, we need to be cautious enough in disturbing such valuation and that too, without confronting and providing an opportunity to them to rebut such alternate basis for adjustment. Thirdly, the assessee has itself appointed the registered valuer who has given an independent opinion on the valuation of the property and therefore, the assessee cannot plead now that he will follow the report of registered valuer in part and like to follow the report of the DVO in part and thus, seek to have best of both worlds which suits its interest. The report of the registered valuer has to be considered in its entirety and therefore, we direct the AO to follow the report of the registered valuer who has estimated the cost of construction by applying PWD rates at ₹ 1,10,53,509/-, and determine proportionate value of investment as relevant for the year under consideration as the construction has been spread over two years and to this limited extent, the matter is remanded to the file of AO. In the result, the ground of appeal is partly allowed. Disallowance u/s 14A read with Rule 8B - HELD THAT:- We find that it is a case of mixed funds where the assessee s own funds by way of cash profits are sufficient to make the investment. Besides, the assessee holds shares in SBBJ and the investment in SBBJ shares have been made in earlier years and not in the year under consideration. During the year under consideration, the assessee has earned dividend income of ₹ 13,775/- which has been claimed exempt and at the same time, it has been contended that no expenditure has been incurred in relation to earning of such dividend income and thus, no disallowance is called for. Where there is no actual expenditure incurred by the assessee by way of interest and other expenses during the year under consideration, no disallowance could be made under section 14A - even the findings of the ld CIT(A) restricting the disallowance to the extent of dividend income is not justified and in any case, disallowance cannot swallow the entire dividend income even as per the decisions cited by the ld CIT(A) in his order. In view of the same, addition so sustained is hereby directed to be deleted and the ground of appeal is allowed. 2021 (6) TMI 542 Assessment u/s 153A - Limitation-Section 153B - Information received under information of exchange mechanism to the effect that the assessee owns an account at HSBC containing substantial credits which are not disclosed to the department - assessee argued statement of the assessee recorded on the date of the search and referred to in the show-cause notice by the AO, the assessee stated that on several occasions during the course of the search, he had stated that he never had any foreign bank account - AO held that the statement recorded was not under coercion and the retraction is an afterthought - HELD THAT:- In the present case, the Swiss Competent Authority having disposed of the reference from Indian Competent Authority, the time period available will be from the date reference was made i.e. 21.01.2012 to the date when the Swiss Competent Authority disposed of the reference. On going through the remand report dated 13.10.2015 we note that the AO in this report has categorically stated that the first reference was made on 21.02.2012 by the Competent Authority for complete information but it was not received till the date of the assessment order i.e. 09.03.2015. Thus, the AO has made a categorical statement that information was not received till the date of passing of the order. The Id. AR is harping on the issue that it is not possible that a reply would not have been received to the reference made by the Competent Authority. AO in the remand report has made a categorical statement that till the date of the order i.e. 09.03.2015, reply was not received. The AO has made a categorical statement in the remand report, we cannot ask the AO to establish a negative evidence that no reply was received from the Swiss Competent Authority. The assessment consequent to this notice could have been completed by 31.03.2014. Since a reference was made on 21.01.2012 as per the AO, the extended period available will be as per clause (viii) of the Explanation below Section 153B. The contention of the ld. AR that the benefit of this clause will not be available in case such reference has been made before the initiation of assessment proceedings is not correct. Section 153B provides time limit for completion of assessment. This clause (viii) of Explanation below this Section 153B is part of this Section 153B itself. Section 153B cannot be read dehors the clause (viii) of the Explanation. We are of the view that it does not matter when the reference was made whether before the assessment proceedings having been initiated or later on. The time period for completion of assessment will include the extended period in case a reference has been made. Accordingly, we reject this contention of the ld. AR. Non-issue of notice u/s 143(2) - This issue was raised by the assessee before the ld. CIT(A) and in the remand report submitted by the AO, he has not disputed this fact. However, ld. CIT(A) has supported his order on the ground that notice under section 143(2) is not required to be issued in case of an assessment post search under section 153A of the Act. Though the ld. AR has relied upon various judgments in support of his contention, but we are of the view that those judgments are distinguishable as none of the judgments were on the issue of assessment being framed under section 153A consequent to the search - we dismiss this ground of the assessee. Assessment order passed by the AO stands vitiated as the same has been passed on direction of higher authorities - As per provision of section 119(1), the CBDT has been empowered to issue instructions and directions to other income tax authorities as it may deem fit from time to time. Such directions or instructions cannot be issued so as to require any income tax authority to make a particular assessment or to dispose of particular case in a particular manner. This restriction is on the Board. In the present case, the CIT being the supervisory authority, we are of the view that he was well within his right to issue administrative direction to the AO. It cannot be said that the order vitiated on account of such supervisory authority having been exercised by the Addl.CIT. In fact, the provisions of Section 153D provides that no order of assessment or reassessment shall be passed by an Assessing Officer below the rank of Joint Commissioner in respect of each assessment year u/s 153A except with the prior approval of the Joint/Addl. Commissioner. No incriminating material seized during search - There is no quarrel with the proposition that the French Competent Authority has handed over the pen drive to the Indian Competent Authority and the 6 page document is a print out of the said pen drive. But the ld. CIT(A) failed to address the argument of the assessee that the information contained in pen drive, the source thereof and author thereof and the authenticity of the information contained in the pen drive has not been established with any credible evidence or linkage with any of the document. The pen drive so received was just like an anonymous letter forwarded by French Competent Authority to the Indian Competent Authority. The issue which the ld. CIT(A) has failed to appreciate is the origin of the source of information only and certainly not the passing of the information from French Competent Authority to Indian Competent Authority, till such time the origin of source of information is authenticated. As decided in ANURAG DALMIA VERSUS DCIT, CENTRAL CIRCLE-26, NEW DELHI [ 2018 (2) TMI 1363 - ITAT DELHI] AO still certain information are yet to be received and the material and information available with the department needs to be corroborated and needs to be further inquired into. Under these circumstances also in our opinion same cannot be done within the scope of Section 153A as we have already held that nothing has been found from the assessee during the course of search, which can preempt any post search inquiry. Albeit in abated assessments AO may have power to conduct further inquiry but not in case of unabated assessments. Abatement of assessment - We hold that the assessment years under consideration i.e. AY 2006-07 and AY 2007-08 were completed assessments and not abated assessments and hence, no addition can be made in absence of incriminating material found during the course of search in view of the judgment of the Hon ble Delhi High Court in the case of CIT Vs Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] No addition could be made of any unexplained bank deposits or interest earned thereon in any of the assessment years. In view of the above, we set aside the Orders of the authorities below and delete the entire additions.we hold that the addition made vide the assessment u/s 153A in the absence of any incriminating material is not sustainable. Statement u/s 132(4) - Whether the amounts have been deposited in the instant years? - It is settled law that statement cannot be read in isolation without any corroborative material. In the present case, we find that there is no evidence placed on record by the AO to corroborate the statement. Moreover, the Revenue itself is not clear whether the information pertains to the alleged bank account maintained with HSBC, Zurich or HSBC, Geneva as is evident from the paper book filed by the Revenue. No response has been received in response to the reference made to Swiss Competent Authority. No incriminating material whatsoever has been found during the course of the search. Under the facts and circumstances in our view, the provisions of Section 69 are not attracted to the assessee in the instant year. The AO has made the addition on the basis of suspicion pertains to the bank account. We are of the view that the addition made by the AO cannot be sustained. Accordingly, we direct the AO to delete the same. Unexplained Expenditure on marriage of the son - CIT (A) deleted the addition holding that the amounts spent on the marriage has been duly explained. - A.Y. 2009-10 - HELD THAT:- The amount of ₹ 64,000/- has been explained to be out of the cash in hand. On going through the bank statement, we find that the explanation of the assessee with regard to ₹ 40,00,000/- is based on the withdrawals from the bank duly examined by the ld. CIT (A). Hence, we decline to interfere with the order of the ld. CIT (A) on this ground. Disallowance u/s 36(1)(iii) - interest on advances - HELD THAT:- The interest bearing funds have been utilized towards interest bearing advances. This is evident from the balance sheet whereby interest bearing loan was ₹ 3,03,50,275 against which, interest bearing advances are ₹ 3,41,00,000 i.e. more than the amount borrowed. Further, from the bank statement, it is apparent that there is a direct nexus between the amount borrowed and the amount advanced. Disallowance u/s 14A - HELD THAT:- The provisions of section 14A read with Rule 8D clearly require the AO to analyse the facts of the case so as to get to the satisfaction that certain expenditure had been incurred for earning tax exempt income and in the event of such satisfaction recourse to Rule 8D could be made. It is apparent from the perusal of the assessment order that no such exercise has been undertaken by the AO before the proceedings to resort to the machinery available under Rule 8D. This fact apart, the expenditure in the form of interest debited in the P L account has already been examined to have been incurred for earning taxable income in the form of interest earned - This being so it can be said that no expenditure has been debited in the P L account which could be attributed to earning of exempt income. In the circumstances the primary requisite as stipulated in section 14A does not get satisf ied and therefore no consequential disallowance either by resorting to the machinery available under Rule 8D or otherwise could be made. The disallowance made by the AO on protective basis is therefore directed to be deleted. Addition of Capital Introduced - CIT (A) deleted the addition after examination of the transfer of amounts in the various bank accounts which have been declared by the assessee - HELD THAT:- We find that the ld. CIT (A) has judiciously examined the bank account of HDFC, State Bank of Patiala and the interest earned and the capital transferred. In the absence of any factual incongruency brought to our notice by the revenue, we hereby decline to interfere with the order of the ld. CIT (A) on this issue. Unexplained Cash Credit u/s 68 - closing balance as per the reconciled bank balance was different as per the audited balance sheet, the closing balance - AO made addition of the difference amount as credit unexplained - HELD THAT:- The assessee is having a consolidated bank account for business activity and for personal affairs. While preparation of the audited balance sheet, the closing balance has been taken after taking into consideration the business transaction of the assessee. The borrowings from the overdraft account shown in the balance sheet as on 31.03.2010 prepared on 18.09.2010 shown a balancing figure which cannot be taken as the bank balance of the assessee when a single account is used for the purposes of the business and for personal transactions. The AO made addition on account of in appropriate reconciliation in the bank overdraft account and the bank statement. Hence, we decline to interfere with the order of the ld. CIT (A) on this ground. Disallowance of Interest u/s 36(1)(iii) - HELD THAT:- While the loans given and taken on business account and the consequent payment of interest and receipt of interest have been part of the P L A/c and the profit earned thereof has been offered to tax, no disallowance is called for on the interest debited in the P L A/c. Unexplained Cash Credit u/s 68 - CIT(A) deleted the addition on the grounds that the amounts received during the year have been indeed given by the assessee in the earlier years to the company namely, M/s Consortium Securities Pvt. Ltd - HELD THAT:- Before us, the fact of receipt of the money and the fact of payment of money in the earlier year to M/s Consortium Securities Private Limited has not been disputed. Hence, we hold that no undisclosed income could be assessed on the amounts received as refund of margin money during the year. With regard to the amount of the transaction with HDFC Bank and State Bank of Patiala, since the amount represents transfer of funds from disclosed accounts and since reconcile, we decline to interfere with the order of the ld. CIT (A). Addition on account of Profit Share - CIT (A) deleted the addition - HELD THAT:- We are of the opinion that AO was not justified in drawing adverse inference against the assessee. The figures stated in the seized document pertains to the said company i.e. Global e-Travel Solutions Pvt. Ltd. We are also in agreement with the contention of the ld. AR that CIT(A) was not justified in giving partial relief once the figures stated in the seized document pertains to an independent entity i.e. Global e-Travel Solutions Pvt. Ltd. Assessment of the said company has also been made post search and no adverse inference has been drawn in respect of the seized document. Accordingly, we direct to delete the entire addition Addition on account of Sale of unlisted Shares - AO made addition holding that the book value of the share was ₹ 78.44 only and the amount received by the assessee over and above of the book value has been paid back in cash to the investor - HELD THAT:- We find that the assessee has purchased per share of ₹ 120/- and sold at the same rate after three years. There is no evidence on record that the assessee has received more money and returned the amount to the purchaser. No seized material has been found which directs at substantiation of such impugned transaction or presumption made by the AO. Even, the bank statements do not lead to any such transfer of money or cash withdrawals to substantiate the allegations. Hence, we decline to interfere with the order of the ld. CIT (A). Disallowance u/s 14A - assessee has claimed interest in money lending business and worked out disallowance u/s 14A accordingly - HELD THAT:- There being a direct nexus of the borrowing of the fund and its utilization towards interest bearing advances, there is no justification for allocating any interest expenditure towards earning dividend income. It is also surprising that AO has made a disallowance of ₹ 3,01,150 as administrative expenses despite no such expenses having been incurred by the assessee. We are of the view that no disallowance under section 14A is required in the present case and accordingly, we uphold the order of the CIT(A) deleting this addition and this ground of the Revenue is dismissed. Disallowance of Interest u/s 36(1)(iii) - CIT (A) deleted the addition after examining that the entire interest bearing borrowed funds have been utilized for the purpose of interest bearing advances - HELD THAT:- As categorically mentioned that the ld. CIT (A) that the P L A/c of the assessee has been examined and the assessee has earned interest . From the examining of the details available on record and the balance sheet of the assessee, we find that the assessee has got sufficient own funds to extent interest free loans - no disallowance is called for on account of interest paid especially when all the interest bearing loans were shown to have been utilized for the purpose of business. Undisclosed income - Difference in capital account as per the audited balance sheet filed by the assessee AND un-audited balance sheet wherein the capital introduced - HELD THAT:- We find that the ld. CIT (A) has deleted the addition holding that the balance in the capital account pertaining to the individual and the entity of lending business are different. On going through the record, we hold that the difference between capital account of the individual and the capital account of the business entity do not call for any determination of undisclosed income. Hence, we decline to interfere with the order of the ld. CIT (A) wherein the addition has been deleted after examining the due reconciliation of the amounts involved in the capital account. Addition u/s 68 - addition on account of the cash - HELD THAT:- Availability of the cash which has been a part of the cash found on the date of search has not been disputed by either parties. Hence, we decline to interfere with the order of the ld. CIT (A) in deleting the addition on account of the cash, the existence and accountability of which has been duly proved. Unexplained investments - HELD THAT:- The fact that the paintings have been sourced in a particular year is clearly recorded and the seized document as per Annexure-A1 and Annexure-A2. All the purchases have been confirmed by the artists concern and the confirmations of the artists or the delivery of the paintings have not been disputed by the revenue. CIT (A) has given the finding after detailed examination of the evidences filed. On going through the details containing name of the artist from whom the said paintings were acquired, mode of obtaining the same, i.e. by means of purchase or gift, along with price details viz., tag price and cost price and payment details, relevant extract of bank statement reflecting payment made to these artists, receipts issued by the artists in respect of paintings sold, acknowledgment of amount received from the assessee, copy of cheque issued towards such payment and confirmation of the artists in respect of gifted paintings and keeping in view the fact that out of the 13 paintings inventorized 5 paintings are acquired in 1990, one in 2001, 4 paintings acquired in 2006 and 3 in 2007, technically no addition is called for in the instant year. Unexplained jewellery - HELD THAT:- As from the record that from the entire jewellery found an amount of 2148 gms. has been considered as unexplained and disclosed in the Income Tax Return of Smt. Tripat Kaur. The quantity of the jewellery is less than the threshold limit of the Wealth Tax Return. Since, the evidence proved the availability of the jewellery in the hands of the HUF, the addition made is liable to be deleted. It can also be held to be reasonably valid that the assessee possesses a minimum quantity of the jewellery in his personal capacity. In the absence of any other material brought before us, we hereby decline to interfere with the order of the ld. CIT (A) on this issue. Disallowance u/s 14A - interest in money lending business and worked out disallowance u/s 14A - HELD THAT:- As being a direct nexus of the borrowing of the fund and its utilization towards interest bearing advances, there is no justification for allocating any interest expenditure towards earning dividend income. It is also surprising that AO has made a disallowance as administrative expenses despite no such expenses having been incurred by the assessee. In view of these facts, we are of the view that no disallowance under section 14A is required in the present case and accordingly, we uphold the order of the CIT(A) deleting this addition and this ground of the Revenue is dismissed. Levy of penalty under section 271(1)(c) in respect of the addition on account of investment in bank account - HELD THAT:- In both these years, the penalty has been sustained by the CIT(A) on the ground that addition on account of investment in both these years have been upheld. Since we have deleted the addition in both these years, the very basis of levying penalty do not survive. Accordingly, we direct the AO to delete the penalty in both these years 2021 (6) TMI 540 Reopening assessment u/s. 148 - incomplete information and unconcluded proceedings - AO considering the Value of Land Sold u/s 50C, as against the Stamp Authorities own Certified Value at the time of actual Registration of Conveyance of property and its sale transaction - HELD THAT:- It is a settled legal proposition that reassessment proceedings can be initiated basis the information and material in possession of the Assessing officer and where on review and examination thereof, where he forms a reasonable belief that the income has escaped assessment and pursuant thereto, he records his reasons for reopening the assessment, seek appropriate approvals from the competent authority and thereafter, issue notice u/s 148 of the Act. In the instant case, we find that there is nothing on record which can demonstrate that the AO was in receipt of any information or having any material in possession prior to recording of the reasons and issuance of notice u/s 148. Very foundation in terms of material and information in possession of the AO, prior to recording of the reasons and issuance of notice u/s 148, for formation of reasonable belief that income has escaped assessment and reopening the assessment proceedings is conspicuously absent in the instant case. It is not a question of sufficiency or materiality of information in possession of the AO rather it is a case of complete absence of any information or material prior to recording of reasons and issuance of notice u/s 148 and in light of the same, the reassessment proceedings deserve to be quashed and set-aside. Thus the sole basis for adopting the enhanced value of the property is a communication received from the sub-registrar regarding revaluation of the property and reference made to this effect to the higher authorities dated 21.09.2009. However, such a communication is not supported by any revaluation order and even during the course of the present proceedings, no such revaluation order is either brought to our notice or placed on record. Further, we find that Deputy Director of Stamps vide reply dated 5.02.2018 in response to assessee s RTI application has confirmed that no such reference was either received from Sub-Registrar 4 Jaipur vide letter no. 57 dated 21.01.2009 or no such order passed in any such reference as evident from contents. We therefore find that even on merits, the case of the Revenue has no legs to stand in absence of any material in support of any revaluation/enhancement in value of the property by the stamp duty authority and the addition so made is hereby directed to be deleted. Appeal of the assessee is allowed. 2021 (6) TMI 539 Disallowance of expenditure incurred relatable to exempt income u/s.14A - HELD THAT:- As regards direct expenses relatable to exempt income, as required to be computed under Rule 8D(2)(i), the assessee itself has computed total disallowance and hence, question of reduction of disallowance computed by the assessee in its original return of income does not arise. Thus disallowance computed by the assessee under Rule 8D(2)(i), is restricted to suo motu disallowance as computed by the assessee for both assessment years. Disallowance of interest under Rule 8D(2)(ii) - In this case, the assessee has filed necessary details to prove that it has own funds in excess of investments made in shares and securities which yielded exempt income. Therefore, by following the decision of ITAT, Chennai in assessee s own case for earlier assessment year, we are of the considered view that Assessing Officer as well as learned CIT(A) were erred in disallowing interest expenditure under Rule 8D(2)(ii) of IT Rules, 1962. Hence, we direct the Assessing Officer to delete disallowance of interest expenditure made u/s.14A of the Act. Disallowance of other expenditure @ 0.5%, average value of investments under Rule 8D(2)(iii) - We find that it is well settled principle of law that only those investments which yield exempt income for the relevant assessment year needs to be considered for computation of disallowance of other expenses under section 14A r.w.r 8D(2)(iii) of IT Rules, 1962. We further noted that the coordinate Bench has taken similar view in assessee s own case for the assessment year 2012-13 [ 2020 (4) TMI 650 - ITAT CHENNAI] where the Tribunal by following the decision of ITAT., Delhi Special Bench in the case of ACIT vs. Vireet Investments Pvt.Ltd. [ 2017 (6) TMI 1124 - ITAT DELHI] has directed the Assessing Officer to consider only those investments which yielded exempt income for the relevant previous year to compute disallowance under Rule 8D(2)(iii) of IT Rules, 1962. Therefore, consistent with view taken by coordinate Bench, we direct the Assessing Officer to recompute disallowance under Rule 8D(2)(iii) by considering only those investments which yield exempt income for the relevant assessment years. Disallowance of R D expenditure u/s.35(2AB) and section 35(1)(iv) - Uncertified portion of expenditure incurred towards R D - HELD THAT:- We find that although, DSIR has not certified expenditure for the purpose of section 35(2AB), but the assessee has placed on record various evidences to prove that said expenditure is incurred wholly and exclusively for purpose of business of the assessee. Once a particular expenditure was incurred wholly and exclusively for purpose of business of the assessee, then such expenditure needs to be allowed either under specific head of expenditure or under residual head of expenditure u/s.37(1) of the Act. If any expenditure is not certified by DSIR in Form 3CL, then the same is not entitled for weighted deduction u/s.35(2AB) of the Act, but there is no restriction under law to claim such expenditure u/s.35(1) / 37(1) of the Act. CIT(A), after considering relevant facts has rightly deleted additions made by the Assessing Officer towards disallowance of uncertified portion of R D expenditure. Hence, we are inclined to uphold the findings of learned CIT(A) and reject ground taken by the Revenue. Disallowance of capital expenditure incurred on R D building u/s.35(1)(iv) - Once capital expenditure was incurred for scientific research purposes, then same is eligible for deduction u/s.35(1)(iv) of the Act. The Assessing Officer as well as learned CIT(A) without appreciating fact has simply disallowed capital expenditure on R D building u/s.35(1)(iv) of the Act. Hence, we direct the Assessing Officer to delete additions made towards disallowance of capital expenditure on R D building u/s.35(1)(iv). Disallowance of balance 50% of additional depreciation claimed on assets acquired and put to use for less than 180 days during the preceding previous years - HELD THAT:- We are of the considered view that assessee is entitled for balance 50% additional depreciation in subsequent years, when it was claimed only 50% of additional depreciation in the year of acquisition and put to use said plant and machinery. The learned CIT(A), after considering relevant submissions has rightly deleted additions made by the Assessing Officer towards disallowance of balance 50% additional depreciation. Hence, we are inclined to uphold findings of the learned CIT(A) and reject ground taken by the Revenue. TDS u/s 195 - disallowance of various payments made to non-residents u/s. 40(a)(i) - HELD THAT:- Since the payments are in the nature of business profits, as per Article 7 of respective DTAAs, same cannot be brought to tax in India in the absence of any permanent establishment in India of the service provider. Since payment is not liable for tax in India, the assessee is not required to deduct TDS u/s.195 of the Act and consequently, payments cannot be disallowed u/s.40(a)(i) of the Act. The Assessing Officer as well as learned CIT(A) without appreciating facts has simply made additions u/s.40(a)(i) of the Act and hence, we direct the Assessing Officer to delete additions made towards warehousing and logistic service charges for the assessment year 2013-14 and rework and subscription charges for the assessment year 2014-15. Professional fees paid to Tileke Gibbins International Ltd. - We find that Article 12 of the India-Thailand DTAA does not cover fees for technical services. Further, payment made for professional services is covered by Article 7 as business profits and hence, is not taxable in India, because service provider does not have permanent establishment in India. Since the payment is not liable tax in India, the assessee is not required to deduct TDS as per section 195 of the Act and consequently, payments cannot be disallowed u/s.40(a)(i) of the Act. Payment made to Mr.Yoshikazu Tsuda towards consultancy charges - We find that the assessee has placed on record necessary evidence to prove that Consultant stay in India is less than 183 days and hence, said payment is not taxable in India, as per Article 14 of DTAA between India and Japan. Since payment is outside scope of tax in India, the assessee is not required to deduct TDS u/s.195 of the Act and consequently, said payment cannot be disallowed u/s.40(a)(i) of the Act. Tuition fee paid to Michigan University and Center for Creative Leadership for assessment year 2014-15 - We find that payments made for teaching in/by educational institutions are excluded from the definition of fees for technical services as per Article 12(5)(c) of respective DTAAs and hence, said payments are outside scope of taxation in India. Since the impugned payment is not liable to tax in India, the assessee is not liable to deduct TDS u/s.195 of the Act and consequently, payment cannot be disallowed u/s.40(a)(i) of the Act. The Assessing Officer as well as the learned CIT(A) without appreciating relevant facts has simply made additions towards various payments u/s.40(a)(i) of the Act. Hence, we direct the Assessing Officer to delete additions made towards payments made to non-residents u/s.40(a)(i) 2021 (6) TMI 538 Income received from letting of the premises - 'income from other sources' u/s 56 (2) (iii) or 'income from house property' - HELD THAT:- There is no dispute that the lease agreement is a composite lease agreement which included the inbuilt infrastructural facilities provided which included central air conditions with ducting, DG power supply, net work equipments, access control equipments, electrical equipments, VAVs and controllers, smoke detectors and occupancy sensors. The agreement also included other amenities, namely installation of dish antenna/satellite, parking space, repair and maintenance which includes repairs, interior or exterior, electrical and plumbing work, repair and maintenance of common and open areas and facilities provided at the building like compounds, gardens, passage, elevators, lifts, terrace, DG sets etc and also 100% power backup and centralised air conditioning. For similar set of amenities/facilities in the case of Sultan Brothers [ 1963 (12) TMI 4 - SUPREME COURT] has laid down certain tests which have been followed in the case of Garg Dyeing Processing Industries [ 2012 (12) TMI 191 - DELHI HIGH COURT] and later on in the case of Jay Metals [ 2017 (7) TMI 618 - DELHI HIGH COURT] . We are of the considered view that in light of the facts discussed hereinabove, there can be no doubt that lease deed was composite one and rental receipt thereunder answered the description u/s 56(2)(iii) of the Income tax Act, 1961. Main thrust in rejecting the claim of the assessee by the Assessing Officer is that it is a related party transaction - The undisputed fact is that the assessment was subject to transfer pricing assessment for determination of ALP with AE and no such determination has been done by the TPO. We further find that though the Assessing Officer has discarded the claim of the assessee stating that it is a related party transaction, but the provisions of section 40A(2) of the Act have never been invoked. Assessing Officer himself has extracted the relevant clauses of lease deed himself showing that the lessor has agreed to provide services which have been enumerated hereinabove elsewhere. Therefore, considering the facts of the case in hand, we find that letting is not merely of the building but a composite let out of both the building as well as equipment/furniture etc and thereby section 56(2)(iii) of the Act is attracted. Respectfully following the ratio laiddown by the Hon'ble Supreme Court in the case of Sultan Brothers [supra] and the Hon'ble High Court of Delhi in the case of Jay Metals [supra], we direct the Assessing Officer to treat the income from letting out of the building as income under the head Income from other sources . Claim of expenses and depreciation u/s 57 has already been answered by the Hon'ble High Court of Delhi in the case of Jay Metals [supra] as under - Last plea made by the Assessee is that in that event the entire income from the letting is treated as 'income from source sources', it cannot be deprived of the corresponding deduction in terms of Section 57 (iii) of the Act. The Revenue too has not disputed the fact that the Assessee has not claimed depreciation. Accordingly, it is directed that while giving the appeal effect, the AO will grant the Assessee the benefit of Section 57 (iii) of the Act. 2021 (6) TMI 537 Capital gain computation - adopting value by invoking provisions of section 50C for computation of capital gains - HELD THAT:- From the facts of the case it appears that the assessee did not properly co-operate before the Ld. AO. Considering the explanation rendered by the Ld. AR regarding the hardship faced by the assessee and since the assessee is a senior citizen, we are of the view that in the interest of justice one more opportunity should be provided to the assessee to pursue his case. Accordingly, we hereby remit the entire matter back to the file of Ld. AO for de novo consideration. In the result, appeal of the assessee is allowed for statistical purposes. 2021 (6) TMI 536 Reopening of assessment - capital gain on sale of property - assessee was appointed as the power of attorney holder by the owner in respect of her immovable property - sale in Individual capacity as against representative assessee of owner - Capital gain on sale of immovable property in terms of the provisions of section 163(1)(c) - HELD THAT:- As rightly pointed out by the ld CIT(A), mere mentioning the assessee's status as Individual instead of representative assessee of Smt. Pamela Jean Colleco is a curable defect in terms of section 292B of the Act as the assessment order so passed is in substance and effect has been passed in the status of representative assessee in conformity with and to give effect to the directions of the tribunal and thus, according to the intent and purpose of this Act. In light of aforesaid discussions, we are of the considered view that the order so passed by the AO in the impugned set-aside proceedings u/s 147/144/set-aside has been passed in the capacity of the assessee as representative assessee of Smt. Pamela Jean Colleco and continues to carry the same consequences and implication in terms of section 160, 161 and 162 of the Act as the original order passed u/s 147/144 except for the variation of the fair market value which the assessee has challenged and we shall be dealing while adjudicating the subsequent ground of appeal. In the result, we donot find any merit in the ground so taken by the assessee and the same is hereby dismissed. Determination of the Fair Market Value of the two properties - assessee is challenging the findings of the ld CIT(A) for considering part of property as residential and part commercial, and submitted that entire property is residential and should therefore be valued at ₹ 1.21 crores each as alternatively determined by the DVO in his valuation report - Revenue challenging the findings of the ld CIT(A) for considering part of property as residential and part commercial and at the same time, submitted that entire property be treated and valued as commercial property as done by the DVO and should therefore be valued at ₹ 3.00 crores each as determined by the DVO in his valuation report - HELD THAT:- Both the documentary evidences and the actual usage of the property have their own relevance and importance and need to be considered while determining the fair market value of the property. At the same time, where there are visible and demonstrable variations in the actual usage or part usage of the property, the same have to be necessarily considered and cannot be ignored for the purposes of valuation. Therefore, on face of such findings, we fail to appreciate why the DVO has not considered the property part residential and part commercial and has applied purely commercial rates. Therefore, the findings of the ld CIT(A) to this extent that the land is under mixed land use and not entirely residential or commercial is hereby confirmed. In the instant case, we note that the revised valuation as so determined in respect of both the properties works out to less than 10% of the actual sale consideration as declared by the assessee and considering the fact that valuation is always a matter of estimation where some degree of difference is bound to occur which even the legislature has lately recognized and has introduced the tolerance limit of 10% which have consistently been held by various Benches as curative in nature, such a difference needs to be ignored and declared sale consideration be accepted. We accordingly direct the AO to accept the sale consideration as declared by the assessee as per the two registered sale deeds. For the reasons stated above, the ground of appeal taken by the assessee is allowed and the ground of appeal taken by the Revenue is dismissed. 2021 (6) TMI 535 Capital gain computation - invoking provisions of section 50C of the Act while making the addition to capital gains - AO referred the property to the DVO to ascertain the FMV as on 01/04/1981 - HELD THAT:- We note that at the relevant time, that is, AY 2012-13, the Assessing Officer can make a reference to the DVO under section 55A of the Act only if the value so adopted by the assessee under section 48 is not supported by the Valuation Report and Government Approved Valuer and if the AO is the opinion that the value of capital asset claimed by the assessee is less than its fair market value and not when it is more than its fair market value . We note that none of the conditions got fulfilled, hence ld. Assessing Officer is not legally competent to make reference to the DVO. As explained above the amended provisions under section 55A is not applicable to all those documents which got registered before 1st July, 2012, therefore we note that the Assessing Officer has (with its fair market value) misinterpreted the provisions and erroneously applied it retrospectively. We note that with effect from 1st July, 2012, the expression now used in Clause (a) of Section 55A is at variance the situation may therefore, be different after 1st July, 2012, which is applicable for assessment year 2013-14, whereas the assessee s case under consideration relates to assessment year 2012-13, hence amended provisions are not applicable to the assessee under consideration. We allow appeal of assessee. 2021 (6) TMI 534 Capital gain computation - application of the provisions of section 50C - difference between actual sale consideration vis- -vis as determined u/s. 50C - HELD THAT:- As noticed at the outset that the same involves difference between its actual sale consideration vis- -vis that determined U/s. 50C of the Act to be less than 5% and therefore, deserves to be condoned as per third proviso to sub-section (1) thereof. The Revenue s only argument at this stage is that the said proviso was inserted by the Finance Act 2018 w.e.f, 1/4/2019 and therefore, it is not appliable with retrospective effect in A.Y. 2012-13 before us. We find no merit in the instant argument as per Maria Fernandes Cheryl [ 2021 (1) TMI 620 - ITAT MUMBAI] has already declined the Revenue s identical argument thereby treating the foregoing statutory provisions as a curative one. The impugned former addition stands deleted. MAT computation - section 115JB book profits issue vis- -vis brought forward book loss figure difference - HELD THAT:- Both the Learned Representatives are ad idem during the course of hearing the instant latter issue required afresh factual verification.We, therefore, direct the assessee to appear before the Assessing Officer on or before 30/09/2021 with all relevant supportive details for the necessary consequently verification 2021 (6) TMI 530 Disallowing the deductions u/s 57(iii) - interest expenses incurred which were claimed against interest income earned by the assessee and returned under the head income from other sources - Case of assessee was selected for limited scrutiny under CASS for one of the reason being large deduction claimed u/s 57 - HELD THAT:- As pointed out to both the Ld. DR and the Ld. Counsel for the assessee that in the impugned case it appeared that the issue had been adjudicated dehors the facts relating to it. That despite the specific submissions of the assessee before the lower authorities of the investment having been made out of interest bearing funds and the assessee having filed certain copies of accounts relating to the loan taken and investment made, the findings of the lower authorities that the assessee was unable to establish nexus between the two, does not deal with the aforestated submissions at all. At the same time, assessee was also unable to demonstrate before us as to how the submissions of the assessee justified his claim, though he contended that this was not the only year in which the assessee had made this claim and that similar claim had been made in earlier years also since a portion of the investment had been made out of loans taken in earlier years. In the absence of the necessary facts relating to the issue, we are of the view that it would not be fair to adjudicate the issue either ways. That it would be in the interest of justice to restore the matter to the AO for reexamination after considering all facts relating to it. Issue of claim of deduction u/s 57 (iii) is restored back to the AO to be decided in accordance with law after considering all facts relating to the same - Decided in favour of assessee for statistical purposes. 2021 (6) TMI 526 Disallowance of prior period expenditure - Expenditure ought to have been claimed in the relevant previous year in which the same was incurred - HELD THAT:- It is an admitted fact that the Assessing Officer s as well as the CIT(A) s detailed discussions have been fair enough in not disputing this clinching crystalisation aspect. Coupled with this, the assessee has been assessed at the same rate all along. The hon ble Gujarat high court s decision in PCIT Vs. Adani Enterprises Ltd. [ 2016 (7) TMI 1250 - GUJARAT HIGH COURT] holds that the impugned prior period expenditure disallowance in such a case ought not to be made as it is a revenue neutral instance only. We adopt the same reasoning herein as well and direct the Assessing Officer to delete the impugned disallowance. The assessee s former substantive ground is accepted therefore. Employees provident fund disallowance u/s 36(1)(va) - HELD THAT:- The assessee s only case as per its computation is that it had suo motu disallowed the very expenditure in the corresponding computation which renders it as an instance of double addition of the claim.. We direct the Assessing Officer to delete the same therefore. Benami Property 2021 (6) TMI 553 Benami transactions - declaration to declare the suit schedule properties as properties of the plaintiff - Firm/Company file a suit for partition on behalf of one of the partners to claim his share - plaintiff is claiming the rights by virtue of amending the pleadings - HELD THAT:- The Court, ultimately is going to decide the right of the parties to the suit, in the 27 items of the suit schedule property even without amending and subsequent to the amendment also, the Court will decide the same. As long as when the Court is not going to decide the right against any of the properties not mentioned in the suit schedule, it would not amount to bringing a new case to change the character, nature and basic structure. In the present case, no such right is going to be decided against the properties which are not mentioned in the original suit schedule properties before the amendment. Therefore, the amendment of the pleadings is not going to change the character, nature and basic structure of the suit. Even this Court is of the view that the right claimed by the plaintiff in the suit is not proper. Subsequent to the amendment of pleadings only, it would be proper. Initially, one of the partners viz., P.Sivanantham claimed that he is entitled for 22.5% shares in the Firm and therefore the said share should come to the Company. This way of laying the claim is not proper. This Court is of the considered view that a Firm/Company cannot file a suit for partition on behalf of one of the partners to claim his share and thereafter to treat it as firm/company property. Firm/Company can file suit to determine its right in the properties but not the right of partner in the firm's/company's property. The partner's right in the firm/company will accrue only in the event of dissolution of the Firm or he will get dividend for his share in the Company in the event of dissolution of the Company. No such situation that arose in the present case. Thus, the suit was originally not filed in a proper manner. Now, by virtue of amendment, the plaintiff is not going to introduce any new plea, but by ignorance, the suit was filed and same has to be corrected legally. Further, without amendment, the right of the parties cannot be adjudicated in a proper manner and allowing this amendment will no way prejudice the right of any of the parties of the suit. Therefore, this Court feel that the amendment in the pleadings is necessary to adjudicate the rights of the parties. The amendment sought for in the relief is only for declaration to declare the suit schedule properties as properties of the plaintiff. This is the consequential relief. This Court does not find any irregularity in allowing this relief and with the amendment of pleading and the prayer, the Court can render complete justice to the parties. Accordingly, the amendment is necessary. When question of limitation was raised before the Court below, the Court below, instead of considering the limitation on merit, it has simply rejected the plea of the revision petitioners stating that the plea of limitation would be considered at the time of trial. As far as this finding is concerned, this Court does not find any error. Benami Transactions (Prohibition) Act, 1988 will not apply. As far as this finding is concerned, this Court is not agreeing with the finding of the Court below. In an amendment petition, the Court below cannot come to the conclusion whether Benami Transactions (Prohibition) Act, 1988 will apply or not without allowing the parties to let in evidence. Therefore, the finding of the Court below with respect to the claim of the plaintiff would not be affected in view of Section 4(9)(b)(2) of amended Benami Transactions (Prohibition) Act,1988 is set aside and the same can be decided by the trial Court by framing appropriate issue and decide the same in accordance with law after allowing the parties to let in evidence. Therefore, the finding of the Court below on the aspect of non- application of Benami Transactions (Prohibition) Act,1988, alone is set aside. 2021 (6) TMI 552 Benami transaction - real owner of the property - continuation of the joint Hindu family - Whether items No. 1 of the plaint 'A' schedule was purchased by the deceased 1st appellant in the name of the 1st respondent benami and if the claim so set up by the appellants in respect of this property is hit by the provisions of the Prohibition of Benami Property Transactions Act, 1988? - HELD THAT:- A suit or claim or action basing on a plea of benami in respect of its subject matter shall not lie against the person who claims being the real owner of this property. The 1st respondent is the owner, who purchased this property in terms of Ex. A1 and Ex. A2 title deeds. It should be noted that execution of Ex. A1 and Ex. A2 sale deeds by the erstwhile owners is not disputed and the fact that they stand in the name of the 1st respondent. The prohibition envisaged in terms of Section 4(1) of the Act is absolute and imperative in its effect. There is a different version in the written statement of the 1st respondent that, when there was a notice issued by Registration Department after registration of these sale deeds, when he sought an advice from his father, these sale deeds were retained by him. Nonetheless, these circumstances are indicative of the fact that these brothers were given to keeping these records with their father and in his custody. Further to note in this context is that they were all living and staying in the same premises during that time. Therefore, there is nothing unusual either for the 1st respondent or the 2nd appellant to hand over these title deeds or documents to their father. Even otherwise, participation of the 1st appellant in bargaining to acquire this house or the site, which the 2nd appellant purchased from the very same vendors, cannot be an unusual factor. When the burden is on the appellants to establish the nature of these sale transactions of such tainted nature to call the 1st respondent an ostensible owner, who held them benami for the joint family, it is for them to place cogent and convincing material of acceptable nature. The material on record indicates that the appellants failed to discharge this burden in terms of Section 104 of the Evidence Act. In these circumstances, any deficiency in the evidence of the 1st respondent is not a factor by itself, to assist them. Trial Judge held that the 1st respondent failed to produce satisfactory evidence to show that he himself has contributed funds to purchase this house. When Ex. A1 and Ex. A2 themselves are the title deeds by which the 1st respondent had acquired this house as per their recitals, they bear a presumption in his favour. This presumption is not discharged by the evidence adduced by the appellants. Failure of the 1st respondent to examine any of the attestors or scribe to these sale deeds as pointed out by the learned trial Judge, is not sufficient to accept the version of the appellants. In fact, it was for the appellants to have had examined them to support their contention that the funds had flown from the 1st appellant to acquire this property, to prove and demonstrate that he had taken active role in those circumstances including at the time of registration of the documents. One of the contentions of the appellants is that Ex. A1 and Ex. A2 sale deeds were obtained in the name of the 1st respondent on account of an astrologer's advice. This reason is obviously false. If contents of Ex. X1 Will and testimony of the 2nd appellant as P.W. 2 are considered for argument sake, it is clear that it was with a view and intention to get over and avoid any difficulty or liability in terms of Income Tax Act, these sale deeds were obtained in the name of the 1st respondent. Thus, one of the strong circumstances sought to rely on by the appellants and to explain the purpose behind in obtaining Ex. A1 and Ex. A2 in the name of the 1st appellant, falls to ground on their own showing. One of the contentions advanced in this appeal for the appellants is that there is sufficient proof of continuation of the joint Hindu family of these parties and retention of certain property for the benefit of this joint family is a strong indicator. There is nothing on record to indicate that this erstwhile joint Hindu family continued and leaving aside certain properties was for common benefit and enjoyment. Apparently, items 2 and 3 of the plaint 'A' schedule were retained where the firewood business was continuing even when the 1st appellant was attending to it, after the partition in the year 1979. Beneficial enjoyment of certain items of the property of the erstwhile joint Hindu family after partition and division in status, mind and kind, cannot clothe the entire set up to call an unity in right, possession and enjoyment, as joint tenants. On twin grounds that the suit as such could not have been maintained in respect of item 1 of the plaint 'A' schedule viz., on the ground of benami set up by the appellants and on another ground that the evidence adduced by them at the trial is not sufficient to support their stand in respect of this house qua the 1st respondent, all the contentions of the appellants should be rejected. Findings of the learned trial Judge in this context with reference to application of Section 4(1) of the Prohibition of Benami Property Transactions Act, 1988 should be upheld and that item No. 1 of the plaint 'A' schedule thus be held that it is the property of the 1st appellant, who has right, title and interest to it by virtue of Ex. A1 and Ex. A2 sale deeds. Thus, this point is answered. Whether Ex. A24 Will is true, valid and binding on the respondents? - 1st appellant died during pendency of the suit - HELD THAT:- While considering issue No. 2 and additional issues 1 and 2 framed on 15.03.1996 and issues 1 and 2 framed on 20.02.1997 the learned trial Judge accepted this Will. The entire process of acceptance of Ex. X1 by the learned trial Judge is bereft of any reasons. The requirements of law as discussed above in the context of application of Section 68 of the Evidence Act and Section 63 of the Indian Succession Act, more importantly to dispel such serious suspicious circumstances surrounding execution of Ex. X1, were not at all considered or discussed. The learned trial Judge jumped to the conclusion that it was executed by the deceased 1st appellant in a sound and disposing state of mind basing on the evidence of P.W. 3 alone. Therefore, the findings so recorded on these issues in Para-81 of the Judgment of the trial Court require interference holding that the appellants failed to establish and prove the original of Ex. X1-Will. Therefore, the testamentary disposition of the property claimed by the appellants, as if by the deceased 1st appellant cannot stand. Consequently, it has to be held that there is no proof offered by the appellants that the original of Ex. X1 Will is true or valid nor it binds the respondents 1 to 4. Therefore, the cross-objections of the 1st respondent stand accepted. Whether the plaint 'A' and 'B' schedule properties are amenable for partition among the appellants 1 and 2 and respondents 1 and 2? - HELD THAT:- There is no reference to these two items in Ex. A11 legal notice issued by the 1st and 2nd appellants to the 1st respondent claiming that they are the properties of the then joint family. It is an undisputed fact that prior to the partition of 1979 all other movable properties of the family were divided among all the members of this erstwhile joint family. Either acquisition or retention of these two items was never an issue among these parties and of their enjoyment later. The material on record also established that these two items were always enjoyed by the 1st respondent himself. Considering the reasons assigned by the learned trial Judge and on re-appraisal of the evidence on record, these findings have to be confirmed. Thus, these two items in plaint 'B' schedule and item 1 of the plaint 'A' schedule are not available or amenable for partition among the appellants and the respondents. Thus, this point is answered. Whether the judgment and decree of the trial Court are proper and if require interference? - HELD THAT:- As a consequence, the ultimate relief granted by the learned trial Judge in substance, did not get altered since preliminary decree passed is confined only with reference to items 2 and 3 of plaint 'A' schedule. The findings relating to devolvement or distribution of 1/4th share allottable to the deceased 1st appellant, gets altered. In the sense in terms of Section 6 of the Hindu Succession Act prior to amendment in the year 2005, 1/4th share of the 1st appellant in items 2 and 3 of the plaint 'A' schedule shall be divided among the 1st appellant, the 2nd appellant, 1st respondent and 2nd respondent notionally. Since the 2nd appellant and 2nd respondent are no more, their respective legal heirs are entitled to the share allottable to them in respective proportions. Therefore, items 1 and 2 of plaint 'A' schedule be divided into three (03) equal shares and the 1st respondent is entitled for one such share, legal heirs of the 2nd appellant viz., the appellants 3 and 4 and respondents 7 and 8 are entitled for one such share and whereas the legal heirs of the 2nd respondent are entitled for one such share. Accordingly, there shall be modification of the preliminary decree granted by the trial Court. Appeal is dismissed and cross objections are allowed. Consequently, the preliminary decree passed by the trial Court is modified as follows: (1) items 2 and 3 of the plaint 'A' schedule shall be divided into three (03) equal shares. One such share shall be allotted to the 1st respondent and whereas one such share shall be allotted to the legal heirs of the 2nd appellant viz., the appellants 3,4 and respondents 7 and 8 together. Similarly, legal heirs of the 2nd respondent including respondents 4 and 5 are entitled for one such share. (2) The decree and judgment of the trial Court in respect of item 1 of plaint 'A' schedule and items 1 and 2 of plaint 'B' schedule stand confirmed. (3) The parties including all the legal heirs whether on record or not of the deceased 2nd appellant and 2nd respondent are at liberty to file separate applications for passing of final decree in terms of this preliminary decree. (4) In the circumstances, the parties are directed to bear their own costs throughout Customs 2021 (6) TMI 555 Enhancement of rate of duty on the day ship arrived vide Notification dated 17.09.2015 - Reassessment of the subject goods imported by the respondent - Crude Palm Oil of Edible Grade in bulk - whether the enhanced rate of customs duty was liable to be paid by the respondent importer? - Recovery of dues under IBC - HELD THAT:- The issuance of the Notification must be followed by its publication in the Official Gazette and on such publication being offered for sale on the date of its issue. If for any reason, the Notification issued by the Central Government is published and offered for sale on the date of its issue, but offered for sale on a later date, then it is only with effect from the date of which it is offered for sale, such a Notification would become enforceable. Mere issuance of a Notification without its publication is of no consequence, inasmuch as unless a Notification is published, the persons to whom it applies would not be aware of the same, unless there is knowledge or awareness of issuance of such a Notification. The person to whom it is to apply cannot be affected by the consequence of such a Notification or have the benefit of such a Notification in the absence of having knowledge about the same - The two requirements are to be complied, namely, publication of the said Notification and offering of the same for sale by the Directorate of Publicity and Public Relations of the Board, New Delhi. This is to ensure that on the date the said Notification comes into force, the same is published and available to the persons to whom it would apply. The learned Single Judge was justified in holding that notification dated 17.09.2015 could not have been made applicable to the imported goods in question and the demand for payment of differential amount of duty was rightly quashed by the learned Single Judge - Appeal dismissed. Recovery of dues under IBC - dues are not part of the resolution plan approved by the adjudicating authority under Section 31 of the IBC - HELD THAT:- The provisions of Section 238 of IBC states that the provisions of IBC shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. Further, it is noted that crown debts do not take precedence even over secured creditors, who are private persons. This is clear on a reading of Section 238 of IBC which provides for the overriding effect of IBC notwithstanding anything inconsistent contained in other law for the time being in force or effect by any such law. This matter does not require to be remanded to the NCLT, Mumbai, before which forum the resolution plan was approved. This is on the ground that this appeal has been dismissed on merits and the respondent has succeeded on merits in this appeal, and the appellants have not produced any material to demonstrate that the claim in the instant case was part of the resolution plan approved by the NCLT, Mumbai. Appeal dismissed on merit. Corporate Laws 2021 (6) TMI 529 Oppression and mismanagement - stripping of assets of the company - members entitled to vote in GM - HELD THAT:- We are not convinced that there was any tearing urgency to getting authorisation to deal with the movable and immovable assets of the Respondent No. 1 company. Selling all the assets during the pendency of the petition will only ensure that the company exists only in name as a shell, hollow on the inside. The main CP as well as the civil suit bearing CS No. 146/2012 before the Hon'ble Calcutta High Court will both be rendered nugatory. Therefore, we are convinced that ad interim ex parte reliefs are required to be granted. Following reliefs were granted: (a). Grant of stay on all resolutions, if any, passed in the Extraordinary General Meeting, if at all held on 30.03.2021; and (b). Order of injunction restraining the respondents Sarda group from exercising any right in dealing with the assets of the respondent no. 1 company. List the CA for along with the main CP on 03.08.2021 for further consideration. 2021 (6) TMI 525 Approval of scheme of amalgamation - section 230-232 of Companies Act - HELD THAT:- Various directions regarding holding and convening of various meetings issued - various directions regarding issuance of various notices also issued - the scheme is approved - application allowed. 2021 (6) TMI 524 Approval of scheme of Amalgamation - section 230-232 of Companies Act - HELD THAT:- Upon perusing the records and documents in the instant proceedings and considering the submissions made on behalf of the Petitioners, the instant petition is admitted and the next date of hearing is fixed on 20.05.2021. Various directions regarding holding and convening of various meetings issued - Various directions regarding issuance of notices for such meetings also issued - the scheme is approved - application allowed. Insolvency & Bankruptcy 2021 (6) TMI 554 Direction to respondent to handover the properties to Resolution Professional - seeking permission to submit a report with regard to assets and liabilities that may come to the notice of the petitioner/respondent herein in due course of his duties - HELD THAT:- In the case on hand, Annexure-C discloses that memorandum of association of petitioner herein discloses that object for which the Company is established is to purchase or otherwise to acquire land or house building and other properties and maintain, sell, allot houses, apartments, flats or part thereof to the shareholders or any other person on such terms and conditions as may be deemed fit by the Company. The petitioner-Company is also not disputing the fact that they have collected the money and they have neither refunded the money nor allotted the flats to the homebuyers, who invested the money. Hence, the main contention of the petitioner s counsel that the petitioner is not the financial establishment and thus, the Act, 2004 is not applicable, cannot be accepted. The Court has to take note of statement of objects for bringing the enactment. The very object is to prevent committing default in return to the public, the deposits on maturity and thereby cheating the depositors of their legitimative due. The term default to include fraudulent failure to return the deposits or pay interest, bonus and profit or perform service promised. The term deposit is defined under Section 2(2) of the Act, which includes and shall be deemed always to have included any receipt of money or acceptance of any valuable commodity by any Financial Establishment to be returned after a specified period or otherwise, either by cash or in kind or in the form of a specified service with or without any benefit in the form of interest, bonus, profit or in any other form - there is a force in the contention of the petitioner s counsel that the provisions of the IBC is having overriding effect over other laws and the same would prevail in view of Section 238 of the Code. Hence, the petitioner has made out grounds to quash the proceedings initiated against the petitioner under Section 7(1) of the Act, 2004. Petition allowed. 2021 (6) TMI 533 Requirement on the side of Adjudicating Authority to issue notice to the Personal Guarantor at the time of appointing RP - Section 95 of IBC, 2016 - HELD THAT:- The day the Application under Section 94 or 95 is filed, the interim moratorium gets triggered by virtue of Section 96(1)(a) of IBC, 2016 from the very date of such application. There is no separate provision available in the Code for this Adjudicating Authority to either impose or suspend the interim-moratorium, till the time the Application is actually admitted or rejected. From perusal of the contents of Section 96(1)(b) of IBC 2016, it is observed that the interim-moratorium only restrains any ongoing or fresh legal action or proceeding in respect of any debt pertaining to the Personal Guarantor. However, unlike the provision of final moratorium as stipulated under Section 101 (2)(c) of IBC 2016, which is initiated after the admission of the Application, there is no provision under interim-moratorium, which restrains Personal Guarantor from transfer, alienation, encumbering or disposing of any of the assets or his legal right or beneficial interest therein - thus, it it is clear that initiation of the interim-moratorium under Section 96 causes no prejudice to the Personal Guarantor. As it is evident from the provisions in Section 94 to 97 of IBC, 2016, the intention of legislature is not to make this Adjudicating Authority-a trial court at the time of appointing RP under Section 97. Rather, it is the RP, who once appointed, has been vested with the power to examine the documents provided by the Creditor or debtor, as the case may be, on merits - the provisions under Section 99 of IBC, 2016, are intended to protect the interest of Personal Guarantor by affording him an opportunity. By virtue of Section 99(2) of IBC, 2016, the Personal Guarantor is given an opportunity to prove before RP if the debt has already been discharged and the Personal Guarantor can furnish proof(s) or evidence to the RP regarding such payment of debt. Further, by virtue of the provision under Section 99(3), the Personal Guarantor is entitled to dispute the validity of such a debt except when the debt is registered with the information utility. Non-issuance of notice at the time of appointment of RP cannot be held to be a violation of the Principles of Natural Justice, since these cannot be rigid and their applicability depends on the demand of the law and situation. Further, there is no straight jacket formula applicable to the principles of natural justice, which can be followed in each and every case - thus, in the light of the material available on record and the admission made by the Ld. Counsel during hearing regarding receipt of the Demand Notice by E-mail, there is no mistake apparent on the face of record in the order dated 22.03.2021 passed by this Adjudicating Authority. Application dismissed. 2021 (6) TMI 532 Dissolution of Corporate Debtor - Corporate Person have been completely wound up - assets completely liquidated - Section 54 of IBC - HELD THAT:- The Corporate Debtor does not have assets to be liquidated hence an Application is moved for the Dissolution of the Corporate Debtor . This Section is to be read along with Regulation 14 of IBBI (Liquidation Process) Regulations 2016 which says that any time after the preparation of a Preliminary Report if it appears to the Liquidator that the realizable properties of the Corporate Debtor are insufficient to cover the cost of Liquidation process, and the affairs of the Debtor do not require further investigation may apply to NCLT for early dissolution of the Corporate Debtor - That the liquidator while preparing the Final progress report came to the conclusion that there being no assets realizable or saleable, it will only increase the cost of liquidation, can opt for Dissolution . Although this Section is in respect of Voluntary Liquidation of a Corporate Person, however, according to which where the affairs of the Corporate Person have been completely wound up, and its assets completely liquidated, the Liquidator shall make an Application to Adjudicating Authority for the Dissolution of such Corporate person - this is a fit case of a Corporate Debtor to be dissolved as prescribed under Section 54 of The Insolvency and Bankruptcy Code, 2016. Application allowed. 2021 (6) TMI 528 Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - real estate project - existence of debt and dispute or not - HELD THAT:- It is undisputed fact that the Petitioner had granted a short term loan to the Corporate Debtor for general corporate purposes for real estate projects by way of a Sanction Letter dated 15.04.2019 and thereafter, executed a facility agreement dated 16.04.2019 wherein the total amount of ₹ 15 crores were lent by the Petitioner to the Corporate Debtor. In terms of the facility agreement, the Petitioner paid the amounts as per the drawdown at clause 2.3 of facility agreement - The Facility Agreement was executed for a fixed term of 6 months and therefore, it can be construed that upon maturity, the money would be repaid by the Corporate Debtor to the Petitioner. The Facility Agreement also provides for events of default wherein the Petitioner could seek the payment of entire amounts on account of breaches of performance of obligations by the Corporate Debtor. Upon perusal of Facility Agreement and security created in pursuance of monies lent to the Corporate Debtor, it is established beyond doubt that the Facility Agreement executed between the parties entails the details of debt of ₹ 15 Crores, as was sanctioned and disbursed to the Corporate Debtor. The events of default expressly define the rights accrued to the Financial Creditor to recall the entire loan on non-payment of dues by the Corporate Debtor. The Corporate Debtor has also not disputed that he had availed the said monies and hence, has offered to settle the said outstanding amount by way of proposal on 24.02.2021. Hence, all the ingredient of Section 7 are satisfied and Petition is admitted. The nature of Debt is a Financial Debt as defined under section 5(8) of the Code. It has also been established that there is a Default as defined under section 3(12) of the Code on the part of the Debtor. The two essential qualifications, i.e., existence of 'debt' and 'default', for admission of a Petition under section 7 of the I B Code, have been met in this case - Petition admitted - moratorium declared. 2021 (6) TMI 527 Seeking Extension of The Liquidation Process of the Corporate Debtor - Regulation 44 of The IBBI (Liquidation Process) Regulations, 2016 r.w. Rule 11 of NCLT Rules, 2016 - HELD THAT:- It is stated that the Corporate Debtor has been ordered to be Liquidated vide an Order dated 17.12.2019 passed by this Tribunal. Thereafter the present Applicant was appointed as the Liquidator of the Corporate Debtor - The Applicant carried out necessary actions under the Code and in consultation with the CoC has taken every possible effort for resolution of the Corporate Debtor. However, no EOI was received and the CoC resolved to put the Corporate Debtor in to Liquidation. The application is partly allowed and the period to complete the liquidation process is hereby extended by six months from today. PMLA 2021 (6) TMI 558 Seeking grant of Regular Bail - Money Laundering - Scheduled Offences - Constitutional validity of Section 45 of the Prevention of Money Laundering Act, 2002 - requirment for fulfilment of two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act - HELD THAT:- The declaration by the Supreme Court in Nikesh Tarachand Shah's case [ 2017 (11) TMI 1336 - SUPREME COURT ] would render the twin conditions prescribed in Section 45(1) of the PMLA for release of an accused on bail to be void in toto; such conditions have to be disregarded of any legal force from its inception; they cease to be law; the same are rendered inoperative and that they are to be regarded as if they had never been enacted. That being so, the twin conditions for grant of bail under Section 45(1) of the PMLA as are now sought to be pressed into service by the ED cannot be considered to have revived or resurrected only on the prospective substitution of the words punishable for a term of imprisonment of more than three years under Part A of the Schedule with the words under this Act especially without there being any amendment with regard to the twin conditions for grant of bail which had specifically been declared to be unconstitutional as also in the absence of any validating law in this regard with retrospective effect. The investigations in the case are complete since a report under Section 173 Cr.P.C. as also a supplementary report under Section 173(8) Cr.P.C. by the Haryana Police and a complaint under Sections 44/ 45 of the PMLA by the ED have already been filed; both the petitioners have been in custody since 16.02.2021; all the relevant documents on the basis of which the prosecution seeks to prosecute the petitioners already stand seized in the course of 16 raids conducted by the ED on different premises of the petitioners; the petitioner in CRM-M-12901-2021 has joined the investigation 11 times whereas the petitioner in CRM-M-12459-2021 has joined the investigation on 13 occasions; properties of both the petitioners, to the extent of the alleged money laundered by them, already stands attached - this Court is of the considered opinion that, subject to the satisfaction of the Trial Court/ Illaqa Magistrate/ Duty Magistrate, Gurugram which shall include deposit of the petitioners' Passports and furnishing of heavy local sureties, the petitioners be released on regular bail. Bail application allowed. Service Tax 2021 (6) TMI 561 Benefit under VCES scheme denied - non-payment of minimum of 50% of the tax dues declared - HELD THAT:- In the case of THE NARASIMHA MILLS PRIVATE LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE (APPEALS) , THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE [ 2015 (6) TMI 787 - MADRAS HIGH COURT] , this Court held that an appeal under Section 85 of the Finance Act, 1994 is maintainable before the Commissioner of Service Tax and the aggrieved person is at liberty to prefer such an appeal. The mixed question of fact and law are to be decided by the Appellate Authority by affording an opportunity to the parties concerned. The petitioner is at liberty to prefer an appeal before the Commissioner of Service Tax by following the procedures and in the event of receiving any such appeal from the petitioner, the Appellate Authority is bound to consider the same on merits - Petition disposed off. 2021 (6) TMI 546 Levy of penalty - delayed payment of service tax - tax was deposited on being pointed out - Section 73 of FA - HELD THAT:- The very SCN was issued in the year 2014 for which the compliance was already made by the appellant in 2011 by way of payment of tax and interest soon after the short payment was detected. The only allegation in the SCN is that the appellant-assessee has not deposited service tax on their own ascertainment. When the tax amount stands already deposited with interest, the very SCN was not required to be issued under Section 73(3). Merely because the tax amount has been deposited on the basis of ascertainment by the Department, the assessee cannot be deprived of the benefit of aforesaid provisions, more so in view of the fact that no evidence has been adduced in the SCN that there was a deliberate short payment. Penalty is required to be set aside - appeal allowed - decided in favor of appellant. 2021 (6) TMI 541 SEZ unit - Refund of Service Tax - Management or Business Consultant Service - period from July 2017 to September 2017 - claim was filed on 29/05/2018 - rejection refund claim has been filed beyond one year from the end of the month in which actual payment of service tax was made by the claimants - introduction of CGST Act, 2017, by omitting Chapter V of the Finance Act, 1994, by virtue of Section 173 of the CGST Act - Applicability of 12/2013-ST dt. 01/07/2013 - HELD THAT:- The appellant has given detailed reasons in their letter dt. 29.05.2018 filed along with the refund claim application wherein they have given specific reasons explaining the delay but the Assistant Commissioner did not consider those reasons and simply observed that they are not genuine. Further it is found that the Notification No.12/2013 itself gives him a discretion to condone the delay for bona fide reasons and in the present case, the reasons given by the appellant are very much genuine. Further in the appellants own case for the earlier period, the delay in filing the refund claim was condoned. In an identical case, the CESTAT, Hyderabad in the case of M/S WS INDUSTRIES (INDIA) LTD VERSUS THE COMMISSIONER OF CUSTOMS CENTRAL TAX [ 2019 (12) TMI 1091 - CESTAT HYDERABAD] has also condoned delay of approximately 3 years in filing the refund claim by relying upon the previous decisions of the Tribunal taking a liberal view in condoning the delay in case of SEZ. The impugned order rejecting the refund claim on time bar is not sustainable in law - Matter remanded back to the original authority for deciding the refund claim on merit - appeal allowed by way of remand. Central Excise 2021 (6) TMI 531 CENVAT Credit - input services - outward transportation on FOR basis - place of removal - Landline Telephone - scope of SCN - HELD THAT:- The show cause notice is vague as it does not contain any specific allegation whether the goods removed from the factory are by way of any clearance in DTA or for the purpose of export - the contention made by the appellant in reply to the show cause notice as well as by way of certificate issue by the Unit Head, M/s. Hindustan Zinc Ltd., certifying that the clearance were made to the port of export and the contention made by the appellant have not been found to be untrue, and still have been rejected without there being a contrary finding of fact - credit allowed. Landline telephone - fixing of land line at the residence of the employees/officers - HELD THAT:- The appellant have not taken specific plea that the phones were provided at the residence of the key officers, which are required to be in touch with the Plant and affairs of the company - Disallowance of credit is upheld. Appeal allowed in part. Indian Laws 2021 (6) TMI 551 Dishonor of Cheque - Legally enforceable debt or not - rebuttal of presumption - section 138 of the Negotiable Instruments Act - HELD THAT:- A perusal of the entire records and even in the statutory notice sent by the complainant, the respondent/accused has sent the reply and he denied the execution of the cheque - When the cheque was returned for the reason that the signature differs, and the respondent/accused has taken a stand that the complainant is a stranger to the accused, it is for the appellant/complainant to establish the case and the appellant has not proved the same, and if once, execution of cheque is proved, the presumption under Sections 118 and 139 of the Negotiable Instruments Act can be drawn and the accused has to rebut the presumption that there is no legally enforceable debt and cheque has not been issued for legally enforceable debt, whereas in the present case, the appellant/complainant has not established the execution of the cheque and borrowal of the money, by the respondent/accused. The appellate Court, as a fact finding Court, has rightly re-appreciated the evidence in proper perspective, under the circumstances, this Court does not find any perversity in the judgment of the appellate Court, and there is no compelled circumstances or reason to interfere with the Judgment of acquittal, unless any compelled circumstances or reason warranted, this Court cannot interfere with the Judgment of acquittal - Appeal dismissed. 2021 (6) TMI 550 Dishonor of Cheque - legally enforceable debt or the liability or not - rebuttal of presumption - HELD THAT:- In a recent decision delivered in a case of T.P. Murugan vs. Bojan 2018 (8) TMI 35 - SUPREME COURT, the Apex Court succinctly held that the moment the cheque is signed and issued in favour of a holder, under Section 139 of the Act raises a statutory presumption on the discharge of a legally enforceable debt. What emerged from the aforesaid decision is that Section 139 of the Act raises a statutory presumption in favour of the holder of the negotiable instrument in discharge of the debt or other liability though it may not in all conceivable circumstances be in discharge of the legally enforceable debt or other liability and, therefore, depends upon the special facts involved in the given case. Even if the statutory presumption is raised by use of the word shall presume , it does not take away the right of a person against whom the same is presumed to rebut the same. It is, thus, a rebuttable presumption as in a case of an ordinary presumption - However, the degree of evidence in rebuttal varies as in case of a statutory presumption, the accused has to lead the case which appears to be probable, plausible and reasonable from a prudent man which may not be so strict in case of a rebuttal of an ordinary presumption. Admittedly, the cheques, on being presented, were dishonoured with the remark exceeds arrangement meaning thereby there were no sufficient balance therein to cover the said amount and, therefore, it satisfies the ingredients of Section 138 of the Act - The evidence of rebuttal is neither probable nor plausible in the perspective of a prudent man and I am, therefore, amazed how the learned Magistrate have found fault into such transactions. Appeal allowed. 2021 (6) TMI 549 Dishonor of Cheque - permission for condonation of delay in compounding of offences - HELD THAT:- Taking into account the fact that the parties have agreed to end the proceedings by way of compromise and the opposite party no.2 has already received the amount of cheque and he does not want to pursue the proceedings against the revisionist, this Court deems it appropriate to compound the offence on the basis of compromise deed dated 13.11.2020 entered into between the parties. However, in terms of the guidelines framed by the Hon'ble Supreme Court as the revisionist has not appeared before the Court and has not taken effective steps to compound the offence at initial stages, in the backdrop of peculiar facts and circumstance of the case, this court deems it appropriate to permit the compounding of offence subject to payment of ₹ 10,000/- as cost/interest to the opposite party no.2 to be paid by the revisionist within a period of two weeks from today. Taking into account the fact that the revisionist has caused undue delay in making endevour for compounding the offence in terms of guidelines framed by the Hon'ble Supreme Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [ 2010 (5) TMI 380 - SUPREME COURT] , the revisionist is directed to pay a cost of 15% of the cheque amount to the High Court Legal Services Committee, High Court, Allahabad within a period of three weeks from today. Revision allowed. 2021 (6) TMI 548 Dishonor of Cheque - necessary ingredients for offence against company present or not - Section 138 read with Section 141 of the NI Act - HELD THAT:- The Managing Director and Director who issued the cheque would be accused for offence under Section 138 of the N.I. Act in case offence committed by the company. It is not necessary to make specific averments in the complaint and by virtue of Section 141 of the N.I. Act they are liable to be proceeded in accordance with law. It is not in dispute that petitioner No. 2 has issued cheque on behalf of the company as Managing Director to the respondent/complainant as stated in para 4 of the complaint. It is for the petitioners to establish the said plea before the trial Court during the course of trial as the issue cannot be adjudicated in this petition at this stage. As such, learned JMFC is absolutely justified in issuing process after taking cognizance of offence under Section 138 of the N.I. Act. I do not find any perversity or illegality in order taking cognizance for the aforesaid offence. Petitioners are at liberty to raise all the grounds before the trial Court during the course of trial. It is made clear that this Court has not expressed any opinion on the merits of the matter. Petition dismissed. 2021 (6) TMI 523 Seeking grant of Anticipatory Bail - director of a builder company, a flat in which was failed to be delivered - HELD THAT:- There is no provision in the Rules of Court regarding filing and entertainment of anticipatory bail application - However all the anticipatory bail applications are being filed before this court in accordance with the provision of Chapter XVIII, Rule 18 of the Rules of Court after serving prior notice of the same on the Government Advocate. Therefore, the requirement of granting time to the Government Advocate to obtain instructions within seven days, where the Court grants an interim order in an anticipatory bail application, is not in the interest of speedy justice. Section 438(2) Cr.P.C provides for the conditions to be imposed while granting anticipatory bail in cases, the Court deems fit. However, the conditions are not exhaustive and leave it open for the Court to impose other conditions apart from the conditions given in the section aforesaid. Section 438(5) Cr.P.C., clearly provides that the application for grant of anticipatory bail shall be decided within 30 days of the filing of application. Section 438(7) provides that if an application for grant of anticipatory bail has been filed by any person before the High Court, no such application shall be entertained by the Sessions Court. Therefore, as per the doctrine of selection of remedies, when an application for grant of anticipatory bail is made to this Court, it expressely bars entertainment of the same by the Court of Session - Once a person has choosen to approach this Court praying for grant of anticipatory bail, by operation of law, his opportunity to approach the Sessions Court gets extinguished. Therefore, he incurs disadvantage by choosing to abdicate his remedy before the Court of Session. Where the statute clearly provides the option for choosing a remedy and the applicant chooses one such remedy he cannot be compelled to disclose reasons why he has choosen such a remedy, when the statute does not requires the same to be stated. The informant/ complainant may take objection to the relief being granted to the applicant and may be dissatisfied from the observations made in this judgment in favour of accused. However, they should not lose sight of the fact that only when the accused would be alive he would be subjected to the normal procedure of law of arrest, bail and trial. The law presumes him to be innocent till the offence alleged against him is proved beyond doubt before the Competent Court - This Court is only granting limited protection to the applicant in view of the mandate of Articles 14 and 21 of the constitution of India. The only remedy available to the person who is implicated for commission of non-bailable offence, against his arrest, is to resort to the remedy of anticipatory bail and it can be granted to an accused on the consideration that the situation at present is not conducive to his subjection to normal procedure of arrest and bail provided under the Criminal Procedure Code. The Election Commission, the Higher Courts and the Government failed to fathom the disastrous consequences of permitting the elections in few States and the Panchayat elections in the State of Uttar Pradesh. The infection of novel corona virus, which had not reached the village population in its first wave of novel corona virus spread in the last year, has now spread to the villages. The State Government is having tough time in controling the spread of novel corona virus in urban areas and it would be very difficult to conduct the test, detect and treat the village population found suffering from novel corona virus. The State lacks preparation and resources for the same at present - Keeping in view the overall situation of the villages after the Panchayat elections large number of accused persons may be infected and their infection may not have been detected. This Court hereby directs that the applicant, in case of his arrest, shall be enlarged on anticipatory bail for the limited period, till 03 of January, 2022, subject to conditions imposed.
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