Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
September 29, 2020
Case Laws in this Newsletter:
GST
Income Tax
Customs
Corporate Laws
Insolvency & Bankruptcy
FEMA
PMLA
Indian Laws
Articles
News
Notifications
Customs
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92/2020 - dated
28-9-2020
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Cus (NT)
Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seed, Areca nut, Gold & Silver
GST - States
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G.O.Ms.No.280 - dated
25-9-2020
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Andhra Pradesh SGST
Appoints the 30th day of June, 2020, as the date on which the provisions of Sections 2 and 13 of the the Andhra Pradesh Goods and Services Tax (Amendment) Act, 2020 , shall come into force.
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FTX.56/2017/Pt-I/449 - dated
19-8-2020
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Assam SGST
Seeks to provide relief by waiver of late fee for delay in furnishing outward statement in FORM GSTR-1 for tax periods for months from March, 2020 to June, 2020 for monthly filers and for quarters from January, 2020 to June, 2020 for quarterly filers.
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FTX.56/2017/Pt-I/447 - dated
19-8-2020
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Assam SGST
Amendment in Notification No. FTX.56/2017/Pt-I/187 dated the 28th February, 2019
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38/2020-STATE TAX - dated
26-9-2020
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Himachal Pradesh SGST
Himachal Pradesh Goods and Services Tax (Fifth Amendment) Rules, 2020
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40/2020 – State Tax - dated
4-9-2020
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Jharkhand SGST
Seeks to amend Notification No. 35/2020- State Tax, dated the 17th August, 2020
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39/2020 – State Tax - dated
4-9-2020
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Jharkhand SGST
Amendment in Notification No. 11/2020- State Tax, dated the 25th June, 2020
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G.O. (Ms) No. 133 - dated
2-9-2020
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Tamil Nadu SGST
Amendment in Notification No. II(2)/CTR/348(o-1)/2020 dated 28th May, 2020
Circulars / Instructions / Orders
Highlights / Catch Notes
GST
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Territorial Jurisdiction - transfer of the case - GST investigation - The officer at Ernakulam has been authorised to look into the matter specifically on the grounds stated in the statement. We do not think that the location of the lawyer can at all be a reason for the department to carry out proceedings in a particular place. - HC
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Territorial Jurisdiction - Detention of goods during stock transfer - recovery of GST and penalty - There was no occasion for the 3rd respondent to collect tax and penalty from the petitioner on the pretext that there is illegality in the transport of goods as it would merely amount to stock transfer and there is no element of sale of goods or services in it. - Respondents are directed to refund within four (04) weeks with interest of 9% - HC
Income Tax
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Disallowance of commodity derivative loss - speculative loss or not - Assessee is engaged in one and only business of derivative trading in different commodity exchanges and such business needs to be considered as one business for the purpose of taxation and any profit or loss derived from different exchanges shall be aggregated by allowing losses to be set off. - AO directed to delete additions made towards disallowances of loss incurred from NMCE, Ahmadabad and allowed said loss to be set off against profit derived from derivative trading on MCX. - AT
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Non granting interest u/s 244A - AO is hereby directed to pay interest on the refund eligible in accordance with the proviso to Section 244A(1)(a) with regard to the advance tax paid. With regard to the self-assessment tax paid, we hereby hold that the assessee is eligible for interest on the total amount of refund in accordance with provision of Section 244A(1)(b) as the bar contend in proviso to Clause (a) to Section 244A(1) is not applicable to the cases (A.Ys. 1999-2000 and 1994-95) before us. - AT
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Interest expenses claim against the interest income received - It is the nature of the business and all the expenditure incurred in earning the income is allowable expenditure. It is only characterization whether it is relating to expenses incurred to earn income or loss incurred in the process of making the income. Therefore,interest expenditure incurred by the assessee will fall under the category of loss. Therefore, it is allowed as an expenditure. - AT
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Levying interest u/s 234C - Advance tax - Non-deduction of TDS by the payer - The interest income received by the assessee from IOCL was liable for deduction of tax at source, which however, was not done by the payer. Accordingly, tax deductible at source on the aforesaid amount of interest income - This amount had to be excluded from the tax due on the returned income for the purpose of computing the interest liability u/s 234C - AT
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Additions of CSR expenses - the amendment in section 37(1) of the Act has been introduced w.e.f. 1st April, 2015 and does not apply on the facts of the case and the disabling provision as stated in Explanation 2 to section 37(1) refers only to such corporate social responsibility expenditure as u/s. 135 of the Companies Act, 2013 and as such it cannot have any application for the period not covered by the statutory provision which itself came into existence in the year 2013. And any way this disabling provision cannot be held to be retrospective in operation - AT
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Period of limitation to pass assessment order in case of remand proceedings u/s 153 - An order of any Court means an order of any and every Court of the country. - The hierarchy in status of the Court in the country is not decisive. As provided in Section 153(6) of the Act, that there must be a Court, and there must be an order of the Court. Therefore, when this Court remands the matter, it is an order of the Court which would extend the limitation for completing the assessment by the Assessing Officer for another twelve months. - HC
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TP Adjustment - determination of appropriate method - Matter remanded back to ITAT - We do not expect a further open remand by the learned Tribunal on the said issue any more because such decision of the learned Tribunal is likely to affect not only the years under consideration before the learned Tribunal but also the future assessment years, as the Assessee continues to remain in the same business for such future years also. - HC
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Revision u/s 263 or appeal-able order before CIT(A) u/s 246A - Subject matter of revision was limited - Doctrine of merger - CIT(A) and ITAT rejected the appeal of assessee - appeal is maintainable in respect of the subject matter, which does not pertain to grounds u/s 263 of the Act. The CIT(A) therefore, ought to have adjudicated the appeal on merits to the aforesaid extent. - HC
Indian Laws
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Dishonor of Cheque - Acquittal of accused - Offence u/s 138 - Presumption u/s 139 - the complainant himself has categorically stated that the complaint was filed in his personal capacity. As such, without looking into any other aspect, it can be said that the cheque was issued to a firm which has not been made over to or endorsed to anyone including the present complainant and the present complaint is instituted by the complainant in his personal capacity. As such, the very complaint itself is not maintainable. - HC
Case Laws:
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GST
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2020 (9) TMI 1060
Territorial Jurisdiction - transfer of the case - It is the prayer of the petitioners that the investigation with respect to them may be carried out by an officer at Kollam especially due to the COVID situation as also due to the voluminous documents which would have to be transported to Ernakulam - HELD THAT:- The officer at Ernakulam has been authorised to look into the matter specifically on the grounds stated in the statement. We do not think that the location of the lawyer can at all be a reason for the department to carry out proceedings in a particular place. There are no reason to interfere with the refusal of the Single Judge, to exercise jurisdiction under Article 226. For production of books of accounts a month's time shall be granted from today which can also be in the digital mode. As far as the supply of copies of documents seized and intended to be relied on, the learned Single Judge has made sufficient safety measures which though not challenged, we reiterate and re-affirm. Appeal dismissed.
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2020 (9) TMI 1059
Validity of assessment order - proceedings under Section 74 of the CGST Act - HELD THAT:- Learned counsel for the State states that there were prior proceedings which led to the issuance of impugned demand notice dated 29.06.2020 (Annexure-P/2) - If that be so, we are not inclined to examine the statement made by the petitioner, factual in nature. The petitioner has equally efficacious remedy in law under the CGST Act. Petition disposed off.
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2020 (9) TMI 1058
Release of confiscated goods alongwith Truck - detention on the ground that the goods were found without E-way bill - petitioner is ready and willing to deposit the tax and penalty and has also ready and willing to give bank guarantee for the amount for total value of confiscated conveyance as mentioned in Form GST MOV-10 - HELD THAT:- In the facts of this case, we direct the petitioner to deposit an amount of ₹ 39,512/- in cash towards tax and penalty and balance amount of ₹ 3,95,098/- shall be by way of bank guarantee of any nationalized bank. On deposit of amount of tax and penalty and furnishing of the bank guarantee of the balance amount, the respondent authority shall immediately release the goods as well as truck conveyance. Petition disposed off.
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2020 (9) TMI 1057
Territorial Jurisdiction - Detention of goods during stock transfer - recovery of GST and penalty - It is contended that the deviation pointed by the 3rd respondent in the detention order is unsustainable because the GST registration of the petitioner in the State of Telangana itself shows its principal place of business at Hayathnagar and additional place at Bongulur village, Ibrahimpatnam Mandal and therefore the 3rd respondent acted illegally in recovering tax and penalty from the petitioner by detaining the goods - HELD THAT:- Once it is clear that petitioner has additional place of business in the State of Telangana in Bongulur village, Ibrahimpatnam Mandal and the goods were being transported to that address from its Corporate office at Ranipet, Tamil Nadu State, it cannot be said that the petitioner was indulging in any illegal activity when the tax invoice shows that the supplier is the petitioner s Corporate office in Ranipet, Tamil Nadu State and that it was shipped to its Depot in Bongulur village in Ibrahimpatnam Mandal. There was no occasion for the 3rd respondent to collect tax and penalty from the petitioner on the pretext that there is illegality in the transport of goods as it would merely amount to stock transfer and there is no element of sale of goods or services in it. Respondents are directed to refund within four (04) weeks the sum of ₹ 6,70,448/- collected towards CGST and State GST and penalty from the petitioner with interest @ 9% p.a. from 05-03-2020 till date of payment to petitioner by the respondents. The 3rd respondent shall also pay costs of ₹ 1,500/- to the petitioner - Petition allowed.
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2020 (9) TMI 1056
Validity of communications issued by the Additional Assistant Director DGGI /R1 dated 15.07.2020 18.07.2020 - HELD THAT:- The impugned communication only solicits certain particulars from the petitioner and any further action in continuance thereof will be taken in accordance with law after hearing the petitioner. This is recorded. There is thus no basis for the apprehension expressed by the petitioner to the effect that demands would be raised on the basis of the impugned communication itself. Petition dismissed.
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Income Tax
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2020 (9) TMI 1055
Revision u/s 263 or appeal-able order before CIT(A) u/s 246A - Subject matter of revision was limited - Doctrine of merger - CIT(A) and ITAT rejected the appeal of assessee - assessee submitted that CIT (Appeals) and the Tribunal ought to have appreciated that the appeal is maintainable in respect of the issues which were not subject matter of notice issued u/s 263 and ought to have adjudicated the matter in respect of privilege fee - HELD THAT:- Taking into account the fact that appeal is maintainable in respect of the subject matter, which does not pertain to grounds under Section 263 of the Act. The Commissioner of Income Tax (Appeals) therefore, ought to have adjudicated the appeal on merits to the aforesaid extent. In view of preceding analysis, first substantial question of law is answered in favour of the assessee and against the revenue. It is not necessary for us to answer the remaining substantial questions of law in view of our conclusion to first question of law. In the result, the orders passed by the Commissioner of Income Tax (Appeals) and the Tribunal are hereby quashed and the matter is remitted to the Commissioner of Income Tax (Appeals) to adjudicate the appeal afresh on merits and in respect of the grounds, which were not the subject matter of notice under Section 263 of the Act.
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2020 (9) TMI 1054
TP Adjustment - MAM selection - As per DRP and the Tribunal CUP method was appropriately used in preference to TNMM - Whether the Tribunal was right in holding that transactional net margin method should not be applied for benchmarking/ computing arms length price in respect of 0.88% of a transaction when 99.12% of the international transaction forming part of same class have been subject to transactional net margin method under Rule 10B(1)(e) read with Rule 10C? - HELD THAT:- Tribunal should not have remanded the matter back to the authorities below and that too to the two different authorities, viz., Dispute Resolution Panel and Commissioner of Income Tax (Appeals), in previous order, and that too by committing a mistake of misreading of the previous order dated 21.12.2012 and holding that CUP Method was already decided to be the only appropriate method, whereas the Assessee has been contending otherwise throughout, and is aggrieved by the adoption of the CUP method and was pressing of TNM Method. In the facts and circumstances of the case, and Assessee is again in the second round of appeals before the learned Tribunal against the orders passed by the authorities below on the remand made by the previous order dated 21.12.2012. As expected Tribunal also to realize the consequences of an open remand made or a remand made to the authorities below only for re-computation with the appropriateness of the method decided finally at its own end. The multiplicity of the litigation and rounds of appeal, what we have described as a shuttle game, should have been seen by the learned Tribunal and therefore, we expect at least from now on, the learned Tribunal will decide on the issue of the appropriateness of the method for TP adjustments, while deciding all the pending appeals before it, as far as this Assessee is concerned and also other Assessees by recording its own reasons and taking into account the relevant evidence and materials on record, and if necessary, by calling additional evidence before it, with regard to the external comparables, from both the sides. We do not expect a further open remand by the learned Tribunal on the said issue any more because such decision of the learned Tribunal is likely to affect not only the years under consideration before the learned Tribunal but also the future assessment years, as the Assessee continues to remain in the same business for such future years also. Commission paid to M/s.The Central Agency as 'Business Expenditure' - HELD THAT:- we leave it free for the Tribunal to look into the past history of the Assessee about the allowability of the said expenditure, and as such expenditure for the previous years has been consistently allowed by the Revenue Authority below, and there was no contrary finding by the learned Tribunal for the previous years. Tribunal may re-decide the said issue also fairly and objectively in the light of the materials available before it for the present AY 2009-10 also.
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2020 (9) TMI 1053
Period of limitation to pass assessment order in case of remand proceedings u/s 153 - extension of time to complete the assessment under Section 153(6)(i) - whether the Assessing Officer would be able to complete the assessment before the expiry of twelve months from the end of the month in which the order passed by this Court remanding the matter back to the Assessing Officer or not? - HELD THAT:- Karnataka High Court in the case of T.M. Kousali v. Sixth Income Tax Officer [ 1984 (3) TMI 11 - KARNATAKA HIGH COURT] had an occasion to consider Section 153(3)(2) as it was in existent for the relevant period which was equivalent to Section 153(6) of the Act, 1961 as on today. It after considering the decision of this Court in case of Additional CIT v. New Jehangir Vakil Mills Co. Ltd. [ 1979 (2) TMI 100 - GUJARAT HIGH COURT] held that the proceedings would not be barred by limitation, in view of the Section 153(3)(ii) of the Act, 1961, existing at the relevant time. An order of any Court means an order of any and every Court of the country. - The hierarchy in status of the Court in the country is not decisive. As provided in Section 153(6) of the Act, that there must be a Court, and there must be an order of the Court. Therefore, when this Court remands the matter, it is an order of the Court which would extend the limitation for completing the assessment by the Assessing Officer for another twelve months. Contention canvassed on behalf of the revenue that order of any Court in a proceeding otherwise than by way of an appeal or reference under the Act, like order passed under the Land Acquisition matter, etc., is only required to be taken into consideration for the purpose of enabling the AO to pass order of assessment, reassessment, etc., before the expiry of twelve months from the end of the month in which such order is received or passed cannot be accepted, because order of remand which may be passed by this Court would be an order of any Court in a proceeding, otherwise than by way of appeal or reference under the Act, 1961. Therefore matter is remanded back to the Assessing Officer to pass fresh denovo assessment order, after providing all the details and information in possession of Assessing Officer.
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2020 (9) TMI 1052
TP Adjustment - Comparable selection - HELD THAT:- Assessee is into software development services and support services for card payment authentication and processing, solutions, and focused on global growth market in prepaid, online and mobile payments to its AE thus companies functionally dissimilar with that of assessee need to be deselected from final list. International transaction - assessee challenges cost allocation by Ld. TPO to determine margin of assessee at 2.95% - HELD THAT:- Assessee filed revised statement of cost allocation, however, the same was not considered by Ld.TPO/DRP, for the reason that, basis of such allocation was not submitted/explained by assessee. In the interest of Justice we deem it appropriate to remand the issue to DRP for verifying the same. Assessee is directed to file all necessary documents to substantiate the basis of such allocation in ascertaining margin of assesse in respect of international transaction undertaken by assessee with its associated enterprise. DRP shall then pass a reasoned order by granting proper opportunity of being heard to assessee in accordance with law. Disallowance of employee contribution to PF belatedly - HELD THAT:- This issue now stands settled in favour of assessee by decision of Hon ble Karnataka High Court in case of CIT vs Sabari Enterprises [ 2007 (7) TMI 169 - KARNATAKA HIGH COURT ] wherein held that, in view of statutory provisions of section 2(24)(x), section 36(1)(va) and section 43B(b), contributions made by assessee to PF and ESI are allowable deductions, even though made beyond stipulated period, as contemplated under mandatory provisions of section 36(1)(va), read with section 2(24)(x), provided such contributions are paid by assessee on or before due date for furnishing return of income as per section 139(1). This ratio has been upheld by Hon ble Supreme Court in CIT vs Alom Extrusion Ltd reported in [ 2009 (11) TMI 27 - SUPREME COURT ]. We therefore remand this issue to Ld.AO to verify whether, employee contributions were made by assessee before due date of furnishing of return, as per section 139 (1) of the Act.
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2020 (9) TMI 1051
TP Adjustment - Comparable selection - HELD THAT:- Assessee is engaged in the business of rendering back office and related services including invoicing, collection, administration, support services includes customer services, ticketing, contract loading etc. to its Associated Enterprises (AEs) i.e. ;TRX Inc, USA, TRX Europe Limited and TRX Germany GmbH, Germany (herein referred to as AEs). The services rendered by the assessee to its AEs is predominantly related to travel and tourism industry. The assessee is also engaged in providing software maintenance support to TRX portfolio of software products and solutions which is essential an ITES, thus companies as functionally dissimilar with that of assessee need to be deselected. And also excluded for non adhering turnover filter decided. TPO not reducing the Working Capital Adjustment of 1.47% from the final list of ALP margin - HELD THAT:- As stated that the TPO has specifically provided for 1.47 % as per the TPO order however while computing the ALP, the TPO adopted Working Capital Adjustment of only 0.13%. We are of the view that this issue ought to have been raised in a Rectification Application. Assessee has not contended before the DRP that the Working Capital Adjustment ought to be 1.47% instead of 0.13% granted by the TPO while computing the ALP. Therefore Ground No.8 raised is rejected.
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2020 (9) TMI 1050
Difference between opening and closing value of non-vendible coal - HELD THAT:- We note that the Ld. CIT(A) has given relief to the assessee by taking note of the decision of this Tribunal in assessee s own case for AY 2003-04 to 2005-06 which is seen placed of the Tribunal s order wherein we note that this issue is covered in favour of the assessee. Allowing 80% of the additional depreciation claimed u/s. 32(1)(iia) - HELD THAT:- Since the main grievance of the revenue is that the assessee failed to justify the admissibility of additional depreciation by producing the break up of assets and also taking note of the action of the Tribunal in assessee s own case for AYs 2008-09 and 2009-10 we set aside the issue back to the AO with a direction for fresh adjudication after considering the details of plant and machinery used by the assessee for the purpose of extraction of coal. We note that the assessee has claimed to have produced the audited financial statement which gave all the required particulars before the authorities below. Since we are remanding the issue back to the AO, we direct the assessee to once again produce all the details as required by the AO in support of its claim for deduction of additional depreciation. It is to be kept in mind by the AO that the assessee is a Public Sector Undertaking and its accounts are audited by the Comptroller of Auditor General of India (CAG) and such audited statements have its own strength and has survived the scrutiny of the premier constitutional body. Needless to say that additional depreciation needs to be granted on such plant and machinery if it has been used for production of coal. Addition on stowing subsidy difference - HELD THAT:- CIT(A) has rightly noted that the total subsidy due for the year under consideration (AY 2009-10) was ₹ 50,70,29,057/- which has been shown in the P L Account under the head other receipts . CIT(A) has rightly noted that ₹ 2647.52 lacs is not the subsidy received. Subsidy due at the beginning of the year was ₹ 29,89,97,877/- out of which ₹ 28,91,19,093/- was received. Hence, the balance was to be received on account of loan was ₹ 98.79 lacs which is in respect of earlier year and the amount of ₹ 2548 lacs due to the current year aggregate to ₹ 2647 lacs. Balance receivable which has been shown in the Balance Sheet. Therefore, the Ld. CIT(A) has rightly deleted the addition of ₹ 98.79 lacs since its last year s subsidy receivable and not pertaining to this year. Addition under the head hire charges of bus, ambulance etc. and being grant to sports and recreation clubs - HELD THAT:- Since the Tribunal has set aside the order or the Ld. CIT(A) and remanded the question of incurring these expenses to the AO for fresh consideration with the liberty to assessee to adduce evidence to substantiate its claim for deduction of the aforesaid expenditure, we also set aside the order of the Ld. CIT(A) and remand the matter back to the file of AO to be decided afresh as ordered in AY 2003-04 to 2005-06. This ground of appeal of revenue is allowed for statistical purposes. Allowing 50% of the donation claimed by the assessee - HELD THAT:- We note that on similar issue of expenditure claim in respect of donation given to the local clubs during Durga Puja etc. was before the Hon ble Calcutta High Court in CIT Vs. Bata India Ltd. [1993 (3) TMI 89 - CALCUTTA HIGH COURT] wherein it was held to be an allowable expense. However, we find that even though the assessee in its reply has stated that certain donations were given to the local clubs etc. the amount given as donation to the local clubs are not discernible from the materials placed before us, so it has to be verified by the AO and the AO to allow 100% deduction on the claim of expenditure in respect of donations given by the assessee to the local clubs. Coming to the assessee s donation to the Ram Krishna Mission and Bharat Sevashram Sangha is concerned again the facts are not clear. So it needs verification by AO and if the donee societies have 80G certification, then deduction in accordance to law should be given to the assessee in respect of the donation given to it. So, we remand this issue back to the file of the AO for factual verification . Ad hoc on account of CSR expenses - HELD THAT:- Expenditure claimed by the assessee is also necessary in view of the National Coal Wage Agreement entered into between the management and employees union and also as per the Companies Act, 1956 as well as Companies Act, 2013. We note that the amendment in section 37(1) of the Act has been introduced w.e.f. 1st April, 2015 and does not apply on the facts of the case and the disabling provision as stated in Explanation 2 to section 37(1) refers only to such corporate social responsibility expenditure as u/s. 135 of the Companies Act, 2013 and as such it cannot have any application for the period not covered by the statutory provision which itself came into existence in the year 2013. And any way this disabling provision cannot be held to be retrospective in operation As relying on SOUTH EASTERN COALFIELDS LTD. VERSUS JOINT COMMISSIONER OF INCOME-TAX [ 2002 (2) TMI 344 - ITAT NAGPUR] direct the AO to allow the claim of expenditure of assessee on account of CSR expenses.
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2020 (9) TMI 1049
Setting off the short term capital losses brought forward from earlier AYs against the current year's short term capital gains, claimed as exempt under Article 13 of the IM treaty - Whether carry forward permitted only the balance short term capital losses instead of entire brought forward short term capital losses? - HELD THAT:- As the DRP in its order u/s 144C(5), had directed adjustment of the Long term capital gains as against the b/forward STCL as per Sec. 74(1)(a) of the Act, therefore, pursuant to its aforesaid directions, it had therein directed that its observations recorded would also stand modified. We herein conclude that the assessee is duly entitled for carry forward of its brought forward Long term capital losses to the subsequent years - brought forward STCL of the earlier years are not to be adjusted against the Short term capital gain earned by the assessee during the year in question, we herein direct that on the same basis the brought forward Long term capital losses of the earlier years shall not be set off against the Long term capital gain earned by the assessee from transfer of securities during the year in question i.e A.Y 2013-14. Levying interest u/s 234C - HELD THAT:- As per the Explanation to Sec. 234C, for the purpose of computing the interest liability therein contemplated, the tax due on the returned income has to be reduced by any tax deductible at source in accordance with the provisions of Chapter XVII on any income which is subject to such deduction and is taken into account in computing the total income of the assessee. The interest income received by the assessee from Indian Oil Corporation Ltd. was liable for deduction of tax at source, which however, was not done by the payer. Accordingly, tax deductible at source on the aforesaid amount of interest income, as stated by the ld. A.R, and rightly so, had to be excluded from the tax due on the returned income for the purpose of computing the interest liability u/s 234C - See NGC NETWORK ASIA LLC [ 2009 (1) TMI 174 - BOMBAY HIGH COURT] We are in agreement with the claim of the ld. A.R that the tax deductible at source on the aforesaid interest income received by the assessee from Indian Oil Corporation Ltd. was liable to be excluded at the time of working out the assessee s liability towards interest under Sec. 234C. We thus direct the A.O to recompute the interest liability under Sec. 234C in terms of our aforesaid observations
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2020 (9) TMI 1048
Addition u/s 68 - Unexplained cash credit - whether credit was a genuine home loan from M/s. Gourav Rose Real Estate Pvt. Ltd (GRREPL) and all the supporting documents were produced and the department failed to prove otherwise? - HELD THAT:- Assessee had discharged its onus to prove the identity, creditworthiness and genuineness of the lender, thereafter the onus shifted to AO to disprove the documents furnished by assessee and it cannot be brushed aside by the AO to draw adverse view which omission on the part of AO cannot be countenanced. In the absence of any investigation, much less gathering of evidence by the Assessing Officer, we hold that addition cannot be sustained merely based on inferences drawn by statement of ex director - Decided in favour of assessee.
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2020 (9) TMI 1047
Re-characterization of distribution fee paid/payable by the assessee to its AE as Royalty - HELD THAT:- Departmental Representative could not bring any material on record to show that the facts in the assessment year under appeal are distinguishable or any judgment to controvert the findings of the Tribunal. We see no reason to take a divergent view. Thus, following the order of Co-ordinate Bench [ 2020 (7) TMI 494 - ITAT MUMBAI] we hold that the distribution fee paid by the assessee is not in the nature of Royalty . Benchmarking of international transaction of alleged Royalty payment by applying CUP as the most appropriate method - HELD THAT:- Since, we have held that distribution fee paid/payable by the assessee is not in the nature of Royalty , the grievance of assessee in ground no. 9 to 11 does not survive Deduction of education and secondary and higher education cess paid on the income-tax liability under the head profits and gains from business or profession - Admission of additional ground - HELD THAT:- The additional ground raised by the assessee is purely of legal nature. Taking into consideration the facts and the decision rendered in the case of Sesa Goa Ltd.[ 2020 (3) TMI 347 - BOMBAY HIGH COURT] we admit the additional ground and restore the issue to the file of Assessing Officer for consideration. The Assessing Officer shall afford reasonable opportunity of hearing to the assessee and shall pass speaking order, in accordance with law. The additional ground raised by the assessee is thus, allowed for statistical purpose. Short grant of TDS credit while computing tax liability in the impugned assessment year - charging of interest under section 234A - assessee has filed rectification petition under section 154 - HELD THAT:- The Assessing Officer is directed to decide the aforesaid application filed by the assessee, in accordance with law by passing a speaking order within a period of three months from the date of receipt of this order. Levy of interest under section 234B and 234D is mandatory and consequential, hence, aforesaid grounds raised by the assessee are dismissed, sans-merit.
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2020 (9) TMI 1046
Interest expenses claim against the interest income received from various parties u/s 57(iii) - HELD THAT:- It is not necessary that you can earn in every transaction and in this case, instead of making interest income, assessee has incurred a loss. We do not agree with the tax authorities that only income is chargeable to tax under the head income from other sources and the loss is not chargeable under the head income from other sources. The intention of the legislature to allow the expenditure incurred by the assessee to earn the income from other sources, which is directly linked to the earning of such income. In the given case, the assessee has not incurred the expenditure directly linking the interest income but incurred the loss by arranging the funds for earning the interest income. You cannot segregate the income alone without considering the object of the transaction or nature of the business of earning the interest income and the expenses includes loss vice versa. No doubt that assessee is into arranging funds and earns interest income by refinancing to the other parties and the difference in the rates in refinancing is the income of the assessee. It is the nature of the business and all the expenditure incurred in earning the income is allowable expenditure. It is only characterization whether it is relating to expenses incurred to earn income or loss incurred in the process of making the income. Therefore,interest expenditure incurred by the assessee will fall under the category of loss. Therefore, it is allowed as an expenditure. Accordingly, ground No. 1 raised by the assessee is allowed. Disallowance u/s 14A r.w.r. 8D - HELD THAT:- AO should have considered only those investments which has earned exempt income and eliminate those investment which has not earned exempt income. In our considered view, AO should calculate the disallowance under rule 8D (2) (iii) by eliminating the investments which has not earned the exempt income. By calculating the disallowance as per above direction and AO should compare the disallowances as above by simultaneously calculating 31% of the administration expenditure and the revised disallowance under rule 8D (2) (iii). In case the revised disallowance under rule 8D(2) is less than 31% of the adminstration expenditure then AO should disallow as per rule 8D(2). Accordingly, we are remitting this issue back to the file of AO to determine the proper disallowance under section 14A. Therefore, ground No. 2 raised by the assessee is allowed for statistical purpose. Unaccounted cash consideration paid over and above the consideration paid by cheque which is reflected in the books of accounts - certain loose papers pertaining to M/s Growmore Investments were found and seized being copies of undated 6 numbers of hundies - HELD THAT:- Even if accept the findings of revenue authorities that assessee has received on money over and above sale consideration in cash and why should the company, where assessee is a director to pay back in cash to the purchaser. What is that assessee has achieved. As such there is no clear finding that the cash was actually received by assessee except that Mr Vipul who is the finance manager has confirmed in writing on the back side of the hundies. Other than that there is no other proof linking the assessee to have received the cash from Bliss GVS, moreover in this case, it was found that employee of the Bliss GVS has received the cash. From the hundi transaction and the contents of the hundi, clearly indicate that this transaction was between Growmore Investment and Bliss GVS. Any proceedings has to be taken with these companies and just because there is property transaction by the assessee, the revenue cannot presume itself linking assessee as the beneficiary of the transaction. As there is no benefit to Bliss GVS in the above transactions and neither to Growmore Investment. Whatever Bliss GVS has paid in cash presumably to assessee, was received back. AO has linked hundi transaction between Growmore Investment and Bliss GVS with assessee. There is no proof coming out of the documents found during search linking the assessee as the beneficiary except presumption and assumptions of the tax authorities. Since there is no cogent material in the possession of the revenue to indicate that the assessee has actually received cash from Bliss GVS, we are inclined to delete the addition made by AO - Decided in favour of assessee.
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2020 (9) TMI 1045
Non granting interest u/s 244A - refund being the excess of tax liability on the assessed income over the taxes paid under section 143(1) - AO did not allow interest u/s 244A(1)(a) on the amount as the refund was less than 10% of the tax determined u/s 254 r.w.s. 143(3) - HELD THAT:- While interpreting tax statute, the function of the court of law is not to give words in the statute a strained and unnatural meaning to cover and extent its applicability to the areas not intended to be covered under the said statute. Vidarbha Irrigation Devs. Corpn. vs. ACIT [2004 (7) TMI 67 - BOMBAY HIGH COURT] It is not permissible to construe any provision of a statute, much less a taxing provision, by reading into it more words than its contains. CIT vs. Vadilal Lallubha i [1972 (8) TMI 134 - SUPREME COURT] . Literal construction means that there is no room for any intendment. Nothing is to be read in, nothing is to be implied. Hence, we hold that the proviso to Clause (a) of Sub- Section (1) of Section 244A is applicable and has to be considered for computational purpose of the interest computable for the refund payable u/s 244A(1)(a). Whether interest is payable on the self-assessment tax paid by the assessee or not? - AO is hereby directed to pay interest on the refund eligible in accordance with the proviso to Section 244A(1)(a) with regard to the advance tax paid. With regard to the self-assessment tax paid, we hereby hold that the assessee is eligible for interest on the total amount of refund in accordance with provision of Section 244A(1)(b) as the bar contend in proviso to Clause (a) to Section 244A(1) is not applicable to the cases (A.Ys. 1999-2000 and 1994-95) before us. The ground no.3 of the assessee is treated as allowed. Computation of interest u/s 244A(1)(a) and Sec. 244A(1)(b) as well as Sec. 234A, Sec. 234B Sec. 234C , we hereby hold that the rule of collection of interest on the taxes due from the taxpayer would be applicable in the comparable way while paying interest to taxpayer on the refund. Assessee is eligible for interest Amount of ₹ 30,00,00,000/- paid on 31.01.2003 is eligible for interest for the month of January. Amount of ₹ 25,00,00,000/- paid on 28.02.2003 is eligible for interest for the month of February.
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2020 (9) TMI 1044
Exemption u/s. 54F denied - adding Long term capital gain treating the same as ''Income from Other Sources - HELD THAT:- We find no infirmity in the allotment letter once it is examined along with the bank statement, ledger account and letter of cancellation. Similar issue arose before the Tribunal in Ashwin S. Bhalekar [ 2018 (5) TMI 1887 - ITAT MUMBAI ] CIT(A) has rightly deleted addition made by the AO in regard to disallowance of the claim of the assessee disallowing deduction of long term capital gain under section 54 of the Act on the premise that the compensation received is income from other sources - Decided in favour of assessee.
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2020 (9) TMI 1043
Best judgment assessment - admission of additional evidence which were not produced before the assessing officer or CIT(A) - DR has objected for admission of evidences as the assessing officer was denied the opportunity of examining the evidences - HELD THAT:- We are of the opinion that, the Assessing Officer should be provided an opportunity to verify and examine the evidences filed in the course of hearing. Accordingly, in the interest of justice, we set aside the order of CIT(A) and admit the additional evidences and remit the entire disputed issues along with evidences to the file of assessing officer to verify and examine the claim of the assessee and allow the grounds of appeal of the assessee for statistical purposes.
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2020 (9) TMI 1042
Disallowance of commodity derivative loss - appellant is carrying on derivative trading in commodity as exclusive business activity - As per AO losses incurred form commodity derivatives trading on National Multi Commodity Exchange, Ahmadabad a non recognized association as per Explanation 2 to clause (d) of sub-section (5) of section 43 cannot be allowed to be set off against profit derived from commodity derivatives trading on Multi Commodity Exchange, because profit or loss earned from trading on MCX is a trading profit and same cannot be set off against speculative profit - HELD THAT:- MCX, as well as NMCE, Ahmadabad, both are recognized stock exchanges by the Ministry of Consumer Affairs, Food and Public Distribution as a recognized association/exchange u/s 5 of the Forward Contracts (Regulation) Act, 1952. In fact, NMCE, Ahmadabad has been recognized by way of notification, dated 10/01/2003 in consultation with the Forward Market Commission under section 5 of the Forward Contracts (Regulation) Act, 1952. MCX is also a recognized association under section 5 of the Forward Contracts (Regulation) Act, 1952. The only difference is MCX has been notified by the CBDT u/s 43(5)(d) w.e.f. AY 2014-15, whereas NMCE, Ahmadabad is not notified for the purpose of section 43(5)(e). Otherwise, both are recognized associations/exchanges for online trading in commodity derivatives. It is incorrect to differentiate business carried out by the assessee in commodity derivatives on two exchanges only for the reasons that the one exchange is not notified by the CBDT u/s 43(5)(e) of the Act, more particularly when said exchange or association is a recognized association u/s 5 of the Forward Contracts (Regulation) Act, 1952. Loss incurred from derivatives trading on NMCE, cannot be considered as different from profit earned from MCX only on the basis of notification issued by the CBDT for the purpose of section 43(5)(d) because the law requires recognition of Association/exchange from Govt. of India, but it does not specifically requires notification from CBDT u/s 43(5) - NMCE, Ahmadabad is a recognized association like MCX, Mumbai and profit or loss incurred from both exchanges is a business profit and consequently, any loss incurred from one exchange can be set off against profit earned from another exchange. Assessee is engaged in one and only business of derivative trading in different commodity exchanges and such business needs to be considered as one business for the purpose of taxation and any profit or loss derived from different exchanges shall be aggregated by allowing losses to be set off. AO and Ld.CIT(A) without appreciating these facts has disallowed loss incurred form derivative trading on NMCE, Ahmadabad as speculation loss against profit earned from derivative trading in MCX by holding that profit earned from MCX is not speculative profit. We direct the Ld. AO to delete additions made towards disallowances of loss incurred from NMCE, Ahmadabad and allowed said loss to be set off against profit derived from derivative trading on MCX. Allowing the speculation loss against non speculation gains which is prohibited by the provisions of section 73 - HELD THAT:- Commodity derivatives transactions are not excluded from the definition of speculative transactions under the provisions of section 43(5) before AY 2014-15 and hence, all transactions in commodity derivatives in any exchanges are speculative transactions and consequent profit or loss earned there from is a speculative profit and accordingly, loss or profit from different exchanges needs to be set off against each other. There is no error in the findings recorded by the Ld.CIT(A), while deleting additions made towards disallowances of loss incurred from commodity derivatives on NMCE, Ahmadabad and hence, we are inclined to uphold the findings the Ld.CIT(A) and dismissed appeal filed by the revenue
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2020 (9) TMI 1041
Reopening of assessment u/s 147 - Addition as Share application money since 31.03.2009, treated as cessation of trading liabilities u/s 41(1) - HELD THAT:- Hon ble Supreme court, in the case of ACIT vs Rajesh Jhaveri Stock Brokers Pvt. Ltd.[ 2007 (5) TMI 197 - SUPREME COURT] had clearly held that reasons to believe does not mean that the reasons for reopening should have been factually ascertained by legal evidence or conclusion before the reopening of an assessment. As in the case of Raymond woolen Mills Ltd [ 1997 (12) TMI 12 - SUPREME COURT] had held that for determining, whether initiation of reopening proceedings was valid, it has only to be seen, whether there was prima-facie some material on the basis of which, the department would reopen the case. It further held that the sufficiency or correctness of the material is not a thing to be considered at the stage of issue of notice. There is no merit in arguments taken by the Ld. Counsel for the assesee challenging reopening of assessment. Additions made towards cessation of trading liability u/s 41(1) - Once the liability has been paid back during AY 2009-10, then the same cannot be considered as continued in the books of accounts as on 31/03/2010, in order to invoke provisions of section 41(1) on the basis of subsequent enquiries conducted during the course of assessment proceedings. In fact, the evidences filed before the authorities have clearly established the fact that the assessee has paid said liability in AY 2009-10. Therefore, we are of the considered view that liability, if at all is ceased to exist, then said liability had been ceased to exist in the FY 2008-09 relevant to AY 2009-10, but not for the AY 2010-11. AO, as well as the Ld.CIT(A) were erred in, coming to the conclusion that the liability is ceased to exist during AY 2010-11. None of the conditions prescribed therein u/s 41(1) were fulfilled, in order to bring said liability within the ambit of provisions of section 41(1) because neither, the liability is ceased to exist during the impugned assessment year, nor the Ld. AO proved that it is a non-genuine trading liability. On the other hand, the assessee has filed necessary evidences to prove that the liability was existed in the books of accounts up to 31/03/2009 and on 31/03/2009 said liability has been fully paid back by converting, the same into share application money with the consent of creditors. AO, as well as the Ld.CIT (A) was completely erred in making additions towards cessation or remission of liability u/s 41(1) of the Act, towards share application money - Decided partly in favour of assessee.
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2020 (9) TMI 1040
Addition u/s 68 - CIT(A) upheld the order of the AO observing that the Assessee failed to establish the credit worthiness of his son in law and mere furnishing of confirmation letters and copy of gift deed was not sufficient to discharge the onus that lies on the Assessee - HELD THAT:- In the light of the order of assessment for AY: 2012-13 passed in the case of the Assessee accepting the genuineness of the loan given by the Assessee s son-in-law to the Assessee, the source, capacity and genuineness of the gift of the very same sum in the AY: 2015-16 stands established. The only reason assigned by the revenue authorities for rejecting the plea of the Assessee in AY: 2015-16 is that the credit worthiness and source of income of Assessee s son-in-law has not been established. The gift by the Assessee s son-in-law has never been disputed nor disbelieved. Since the AO has accepted the credit worthiness of the Assessee s son-in-law in Assessee s assessment for AY: 201-13, we are of the view that the sum in question which was added as unexplained u/s 68 of the Act for AY: 2015-16 has to be deleted - Decided in favour of assessee.
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Customs
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2020 (9) TMI 1039
Import of Vehicle or not - whether bringing of a vehicle by the petitioner under Ext.P1 can be termed as import of a vehicle and even if it cannot be strictly termed as import, is the petitioner eligible to import the said vehicle paying customs duty and availing depreciation benefits in respect of the vehicle? - HELD THAT:- The Customs Act provides for an appellate mechanism to decide such issues. The petitioner has not availed the same. Therefore, it is only just and proper that the petitioner is relegated to appellate remedy available under the Customs Act at the first instance. The writ petition is disposed of permitting the petitioner to prefer an appeal against Ext.P4 before the Commissioner (Appeals) under Section 128 of the Customs Act, within a period of two weeks, along with a petition to condone the delay - Petition disposed off.
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Corporate Laws
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2020 (9) TMI 1038
Maintainability of Joint Application - Sanction of Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- As per clause 8 of the Scheme, all legal proceedings of whatsoever nature by or against Transferor Companies pending and/or arising at the Appointed Date and relating to Transferor Companies or its properties, assets, debts, liabilities, duties and obligations, shall be continued and/or enforced until the Effective Date as desired by the Transferee Company and as and from the Effective Date shall be continued and enforced by or against the Transferee Company in the same manner and to the same extent as would or might have been continued and enforced by or against Transferor Companies. On and from the Effective Date, the Transferee Company may, if required, initiate any legal proceedings in its name in relation to Transferor Companies in the same manner and to the same extent as would or might have been initiated by Transferor Companies. Directions are issued with respect to calling, convening and holding of meetings of the Shareholders, Secured Creditors and Unsecured Creditors or dispensing with the same as well as issue of notices including by way of paper publication - Application disposed off.
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2020 (9) TMI 1037
Appointment of Interim Administrator or appoint an official from the Ministry of Corporate Affairs to take over the management of the 1st Respondent Company - HELD THAT:- No doubt that the Company Petition was filed before National Company Law Tribunal, Chennai Bench on 08.02.2019, but it was not numbered or presented before the Bench. It was numbered only on 27.08.2019 in Registry of NCLT, Kochi Bench and it was put up for first time on 03.09.2019 for presentation - I have heard both the parties and meticulously perused all the case records submitted before me. Considering the reliefs sought in the main Company Petition and allegations made against Respondents Nos. 1 3, particularly relating to the disqualification of applicant and Respondent No.3, I, by exercising the inherent power of the Tribunal under Rule 11 of the National Company Law Tribunal Rules, 2016 and for meeting the ends of justice or to prevent abuse of the process of this Tribunal, decided to Both the parties are directed to suggest names of qualified persons, who may be appointed as an Interim Administrator in the matter to look after the management and affairs of the Respondent No.1 Company - Application allowed.
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Insolvency & Bankruptcy
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2020 (9) TMI 1036
Maintainability of application - CIRP process - It is not the case of the Writ Petitioners that there is any lack of jurisdiction on the part of NCLT in entertaining the Company Petition and it has merely contended that NCLT erred in passing the impugned order - HELD THAT:- It is the contention of the petitioners herein that respondent Nos.4 and 5 had manipulated and falsified the accounts and misappropriated the funds apart from committing fraud. Therefore, these are the aspects which can certainly be considered by NCLAT, if appeals were preferred by the petitioners under Section 61 of the Code to it. In this view of the matter, we are not inclined to entertain the Writ Petition since the petitioners have an effective alternative remedy before the NCLAT under Section 61 of the Code - Granting liberty to the petitioner to avail the said remedy of appeal under Section 61 of the Code, this Writ Petition is dismissed - Petition dismissed.
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2020 (9) TMI 1035
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational debt or not - time limitation - Section 8 of the IBC, 2016. Whether the debt mentioned in the Demand Notice is an operational debt and whether there is default in its payment? - HELD THAT:- A conjoint reading of Sections 8 and 9 of the IBC makes it incumbent on the operational creditor to show the amount of debt in default and the date of default clearly and should also provide credible proof about the purchase and supply of goods and services as claimed. Hence the operational creditor s claim of debt of ₹ 50,32,028/- and default in payment of the cost relating to supply and installation and managed professional services is not established as required in Sections 8 and 9 of the IBC - The Corporate Debtor, in his reply dated 03.12.2018 to the Demand Notice, has accepted placing purchase order of 30 nos. GPS vehicle trackers and receiving the supply. Since the Corporate Debtor has accepted the supply pending payment relating to these 30 vehicle trackers; hence it is an admitted Operational Debt. Whether the application filed under Section 8 of the IBC, 2016 for the relevant operational debt is within limitation? - HELD THAT:- It is for the Resolution Professional and the Committee of Creditors to consider all these claims received in the process of CIRP. We also hope that the stakeholders as well as the IRP and COC shall keep in mind that the IBC is a beneficial legislation which is not meant to put going concerns/entities in resolution for small acts of commission or omission which can be rectified - The Corporate Debtor has raised the issue of not been accorded an opportunity to advance oral arguments by the Ld. Adjudicating Authority on the date of final hearing i.e. 06.12.2019. It is seen by us that the Ld. Adjudicating Authority has, in the interest of adhering to timelines given in IBC, considered the oral arguments made by the Ld. Counsel of the Corporate Debtor made on the previous date of hearing. He has decided to close the arguments on 06.12.2019 and pass the final judgment in the case after taking into account all the submissions, which include written and oral submissions, and hence it cannot be said that the Corporate Debtor was denied reasonable opportunity to be heard. There are no infirmity in the order of the Learned Adjudicating Authority. The interim stay order relating to non-constitution of the Committee of Creditors passed by this Tribunal on 03.02.2020 is hereby vacated and the Interim Resolution Professional shall take further action with regard to the Corporate Insolvency Resolution Process.
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2020 (9) TMI 1034
Payment ot dissenting Financial Creditors - compliance of the provisions of Section 30(2)(b)(ii) of the Insolvency and Bankruptcy Code, 2016 r/w Regulation 38(ii)(b) of the CIRP Regulations - HELD THAT:- The amended Section 30(2)(b)(ii) r/w amended Regulation 38 stipulates payments in priority to the dissenting Financial Creditors. The Applicant submits that Explanation 2 to Section 30(2) in terms stipulates that these amendments would apply even to the existing proceedings pertaining to the approval of the resolution plan. Admittedly, the resolution plan in relation to the Corporate Debtor was not approved as on the date of t amendment in terms of Section 31 of the Code. The Applicant is constrained to prefer the present application seeking appropriate directions against the Respondents - This Adjudicating Authority may be pleased to declare and order the Resolution Plan in relation to B.P. Food Products Private Limited, the Corporate Debtor, to the extent it does not provide payment of dues of dissenting Financial Creditor to be paid in priority, is liable to be rejected as it is not in conformity with Section 6 of the Insolvency and Bankruptcy Code (Amendment) Act, 2019 r/w Section 30(2) of the Code r/w Regulation 38 of CIRP Regulations, in the interest of justice and equity.
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2020 (9) TMI 1033
Liquidation of Corporate Debtor - section 33(1), 33(2) and 34(1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- From the records, it is found that no viable and feasible Resolution Plan has been received so far and Corporate Debtor has no running business. Therefore, the CoC has resolved for liquidation of the Corporate Debtor vide its 3rd meeting dated 12.12.2019. It is also to be noted that this Adjudicating Authority has no jurisdiction to interfere in the commercial wisdom of the CoC. The moratorium declared under Section 14 of the IB Code shall cease to have effect from the date of the order of liquidation - Liquidator is further directed to issue public announcement stating that the Corporate Debtor is in liquidation - application allowed.
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2020 (9) TMI 1032
Approval of Resolution Plan - Section 30 of IBC - HELD THAT:- The arguments/opinion of the Learned counsel of the RP at the Bench's questions about irregularities observed in the Compliance Certificate should not matter much as long as the Members of the Bench are honest and sincere to the pie. Moreover, the Learned Lawyer has not sought for change of Bench in this matter. It may not be proper, in my opinion, to fall prey to the improper view/opinion/arguments of the Learned lawyer. Hence, this Adjudicating Authority may take a lenient view at the expression of the learned lawyer on the clarifications sought by this Adjudicating Authority in the interest of Justice and achievement of the objectives of the IBC.
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FEMA
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2020 (9) TMI 1031
Extension of the usance period of the Letter of Credit Facility sanctioned to the writ petitioners from 180 days to 270 days - distinction between the usance period of a Letter of Credit and the period of a Trade Credit - HELD THAT:- The argument that the 2018 Regulations brought about a change in policy regarding the usance period for credit does not hold water, since the said Regulations and the Master Direction on External Commercial Borrowings and Trade Credits dated July 1, 2015, updated up to October 6, 2015, relate to loans extended by overseas banks. The germane consideration in the present case is, rather, the Master Direction Import of Goods and Services dated January 1, 2016 (updated lastly on April 1, 2019). Trade Credit Policy Revised Framework formulated by the RBI on March 13, 2019 does not alter the position as far as the usance period available to the petitioners was concerned. As correctly argued by the respondents, a Court order cannot impose its own view to substitute the terms of the original contract between the parties and the petitioners cannot insist upon the discretion of the bank to extend the usance period of credit to be exercised in the petitioners favour as a matter of right. as correctly argued by the respondents, a Court order cannot impose its own view to substitute the terms of the original contract between the parties and the petitioners cannot insist upon the discretion of the bank to extend the usance period of credit to be exercised in the petitioners favour as a matter of right. The petitioners shall repay the loan amount pertaining to the credit facilities obtained from the State Bank of India (represented by the respondents) in respect of the loan-in-question within 30 days from date along with interest at the rate of 6 percent per annum from the date of expiry of the credit period of 180 days post-shipment till repayment. Failure to repay the said cumulative amount (principal with interest) within 30 days from date would entail imposition of interest at the rate of 18 percent per annum which the petitioners shall pay.
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PMLA
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2020 (9) TMI 1030
Provisional attachment order - assets in respect of which the said attachment order has been passed are certain fixed deposits - said fixed deposits are currently lying with the HDFC Bank - HELD THAT:- In the peculiar facts and circumstances of this case where the amount, if frozen or attached, would continue to remain under the custody of the ED, this Court deems it appropriate to direct the said amount of ₹ 42,85,32,698.63/- from the provisionally attached bank account to be transferred to the account of the NHB by the HDFC Bank. Remaining amounts provisional attachment order shall continue and the Petitioner would be free to agitate its pleas before the Adjudicating Authority under the PMLA. Payment to the NHB shall be a pro-tem measure in the peculiar facts and shall abide by the final orders of the Adjudicating Authority. If the Adjudicating Authority finally determines that the said amount ought to be paid back to the ED, the NHB shall abide by the said order and shall re-deposit the said amount within a period of six weeks after the passing of the order by the Adjudicating Authority, subject to any orders passed by a superior court/tribunal. If refund is ordered by the adjudicating authority, no interest shall be payable by the NHB. Only the principal amount which is being transferred from the HDFC Bank to the NHB would be liable to be put back into the ED s account. Amount received from the HDFC Bank shall be credited by the NHB in the account of the Petitioner and if the Adjudicating Authority passes an order for re-deposit of the amount, the same shall be debited from the Petitioner s account.
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Indian Laws
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2020 (9) TMI 1029
Bail Application - Dishonor of Cheque - case of applicant is that applicant is the only person who is indulge in fraudulent activities and also cheated the informant, but could not explain the proceeding initiated against the informant under Section 138 of Negotiable Instruments Act which is also pertaining to receiving money for providing job - HELD THAT:- Considering the facts and circumstances of the case and also perusing the material on record, without expressing any opinion on the merit of the case, let the applicant -Ashish Sharma, involved in case crime No. 366 of 2019, under Sections 420, 467, 468, 471, 406, 504 and 506 IPC, police station -Prem Nagar, District -Jhansi be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of court concerned. It is further provided that this bail order available on the official website of the High Court will be taken to be the authentic one and certified copy shall be submitted before that court concerned as soon as it is issued. Bail allowed subject to conditions imposed.
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2020 (9) TMI 1028
Dishonor of Cheque - Acquittal of accused - Offence u/s 138 - Presumption u/s 139 - Advance given for purchase of Tractor - delivery of tractor and subsequent issue of cheques are in dispute - HELD THAT:- It is not in dispute that the accused was intending to purchase a Tractor, as such, he approached the complainant in that regard. It is also not in dispute that in connection with purchase of a Tractor, the accused paid in total a sum of ₹ 20,000/- to complainant as an advance amount towards the purchase value of the Tractor. In that connection, the accused himself has made a suggestion to PW-1 in his cross-examination, which suggestion has been admitted as true by PW-1/complainant. Therefore, it is established that the accused had approached the complainant for purchasing a Tractor from him and in that regard, had paid an advance amount - primarily when the issuance of a cheque is established, then, a presumption arises in favour of the drawer of the instrument or holder in due course of the instrument about there being in existence a legally enforceable debt. However, the said presumption is rebuttable. In the instant case, the said aspect has to be seen with two dimensions. First, whether such a presumption has been appropriately rebutted by the accused. Second, whether the complainant was the payee of the instrument or its holder in due course. The presumption about the existence of a legally enforceable debt stands in favour of the complainant. However, the said presumption is rebuttable. In order to rebut the said presumption, though it is not necessary that the accused has to necessarily enter the witness box and lead the evidence, it is suffice if he could able to rebut the presumption even in the cross-examination of the complainant (PW-1) or through other cogent evidence. In the instant case, admittedly, the accused has not entered the witness box by himself nor examined any witnesses from his side. He has not even produced any documents and got them marked as exhibits from his side. However, he has subjected the complainant to a detailed cross-examination. In the instant case, as being repeatedly observed, the complainant himself has categorically stated that the complaint was filed in his personal capacity. As such, without looking into any other aspect, it can be said that the cheque was issued to a firm which has not been made over to or endorsed to anyone including the present complainant and the present complaint is instituted by the complainant in his personal capacity. As such, the very complaint itself is not maintainable. The Trial Court having observed these aspects, though with other reasons, since has arrived at a correct conclusion of acquitting the accused for the alleged offence, there are no reason to set aside the said judgment of acquittal and to interfere in the judgment under appeal - appeal dismissed.
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