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- 2019 (9) TMI 695
Classification of royalty payments - taxability - reverse charge mechanism - royalty payments to Government in respect of Mining lease under “Licensing services for Right to use minerals falling under the heading 9973 - liability of tax - contributions made to District Mineral Foundation (DMF) and National Mineral Exploration trust (NMET) as per MMDR Act, 1957. HELD THAT:- It is clear that the supply made by the government, i.e. the right to mine the resources is taxable under Section 9 of the Act and is within the meaning of the term ‘supply as covered by Section 7. That, in order to classify as a supply, two important conditions are to be met. First, it should be in the course or furtherance of business. It must also be noted that as per Section 2(17), inter alia, any activity undertaken by the Central Government in which th....... + More
- 2019 (9) TMI 694
Liability of IGST - Reverse Charge Mechanism (RCM) - Import of Consulting Services by the Directorate of Skill Development - services received by it from a provider of service located in a non taxable territory - place of supply of services - section 5(3) read along with N/N. 10/2017 IT(R) - HELD THAT:- The applicant is engaged in Business or profession as defined in the Section 2(17) of CGST Act. Further the supply might be chargeable to tax if it is falling under Notification No 11/2017 - Central Tax (Rate) dated 28lh June 2019. According to Section 5(3) of IGST Act, the Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this Ac....... + More
- 2019 (9) TMI 693
Classification of supply - charge of interest from customers for delayed payment - Interest charged on cost of securities is exempt under notification no. 12/2017 Central Tax(Rate) dated 28-06-2017 as amended. HELD THAT:- The additional amount being charged in delay of payment by whatever named called should be classified as principal supply and the classification of the same cannot differ from the original supply. Hence the additional amount charged on delayed payment shall be taxed as per original supply i. e. supply of Stock broking services. Applicability of Notification No. 12/2017 - HELD THAT:- Having regard to the nature of transaction it cannot be said that the share broker has extended any deposit, loans or advances to its clients hence the additional amount being charged cannot be treated as interest hence the exemption granted under entry no 27 of notification no 12/2017 is not applicable on the transaction on which advance ruling is sought.
- 2019 (9) TMI 692
Classification of goods - rate of GST - solar LED Torch, used generally in agriculture/ rural area - torch is having solar panel input socket, but provided without solar charging panel - Concessional rate of GST - Sr.No.234 of Schedule-I to Notification No.01/2017-CT(Rate) dtd.28.06.2017. HELD THAT:- The product in question is essentially a Rechargeable LED Torch Light (as also mentioned on the packing of the product provided by the applicant). It comes equipped with an inbuilt rechargeable battery with AC adapter for recharging purpose. The product, thus, unquestionably merits classification under 85131010 of the GST Tariff. Whether the product can be brought under the ambit of ‘Solar Powered Device’ in order to make it eligible for concessional rate of tax @5% in terms of Serial Number 234 of Schedule-I of Notification no.01....... + More
- 2019 (9) TMI 691
Extension of time period for amending GST Tran-1 - transitional credit - despite making several efforts, the electronic system of the respondent no.2 did not respond, as a result of which the petitioner is likely to suffer loss of the credit that it is entitled to by passage of time - HELD THAT:- The respondents are directed to reopen the portal within two weeks from today. In the event they do not do so, they will entertain the GST TRAN-1 of the petitioner manually and pass orders on it after due verification of the credits as claimed by the petitioner. List this matter on 17.10.2019.
- 2019 (9) TMI 690
Waiver of interest and late fee imposed - It is the case of the petitioner that the interest has been levied upon the petitioner without entering into the adjudicatory process as required under Section 73 of the CGST Act 2017 - alternate remedy of appeal u/s 107 of CGST Act - Notification No. 76/2018 dated 31st December, 2018 - HELD THAT:- As prayed for, learned counsel for the CGST is allowed four week’s time to file the detailed counter-affidavit in the matter - Till then, the operation of the order dated 22.05.2019, as contained in Annexure-10 to the supplementary affidavit, shall remain stayed. Put up the matter on 28.08.2019, awaiting the counter-affidavit in the matter.
- 2019 (9) TMI 689
Addition on account of share capital money received u/s. 68 - as alleged assessee has failed to offer any explanation with regard to credit found in the nature of share capital - HELD THAT:- In the case of PCIT vs. Hi-Tech Residency Pvt. Ltd. [ 2018 (7) TMI 1347 - SC ORDER ] has considered identical issue and held that where an assessee company had discharged the onus of establishing identity, genuineness of transaction and creditworthiness of investors, no additions could be made u/s. 68. We, further, noted that although the Apex Court has not expressed any opinion, because of dismissal of SLP filed by the assessee, the fact of the matter is that this issue has been considered in the case of CIT vs. Lovely Exports (P) Ltd [ 2008 (1) TMI 575 - SC ORDER ] where the issue has been thoroughly examined in the light of provisions of section 68....... + More
- 2019 (9) TMI 688
Penalty u/s 271(1)(c) - Notice in the name of merged company - curable defect - HELD THAT:- Impugned penalty order passed by the AO in the name of “M/s. Padampat Gopal Krishna Ramapanti Organization Ltd. (Merged with Gohoi Buildwell Ltd.Now known as V3S Infratech Ltd.)” is a substantive illegality and not a procedural violation of the nature adverted to in Section 292B; and hence order passed on amalgamated entity which ceases to exist is a nullity. Such an illegality cannot be cured on the ground that assessee participation in the proceedings as there cannot operate as an estoppel against law. Accordingly, impugned penalty order is quashed. - Decided in favour of assessee
- 2019 (9) TMI 687
Monetary limit - low tax effect - HELD THAT:- It is noted that in this appeal, the tax effect is below monetary limits of ₹ 50 lakhs as prescribed under the CBDT circular No.3/2018 dated 8th August, 2019. As relying on DINESH MADHAVLAL PATEL [2019 (8) TMI 752 - ITAT AHMEDABAD] it is noted that in this appeal, the tax effect is below monetary limits of ₹ 50 lakhs as prescribed under the CBDT circular No.3/2018 dated 8th August, 2019 Addition on account of disallowance of the legal expenses - Expenditure related to proceedings in the Debts Recovery Tribunal (DRT) - HELD THAT:- Considering the evidences so placed, the amount was spent on court fees is allowable expenditure, therefore, we direct the A.O. to delete this ground. The ground raised in the cross objection is allowed.
- 2019 (9) TMI 686
Penalty proceedings u/s 271C - TDS u/s 194C on payment of external development work charges ('EDC') - reasonable cause for non-deduction of tax at source by the assessee company - HELD THAT:- We find that under the facts and circumstances it is clearly borne out that assessee did had bonafide reason for not deducting the TDS. Firstly, for the reason that the license was granted by DTCP which is a Governing authority and it has clarified that EDC charges are paid to HUDA; and secondly, DTCP has issued a clarification to the effect that no TDS is required to be deducted precisely. Precisely on similar set of facts, this Tribunal in the case of RPS Infrastructure Ltd. vs ACIT [2019 (9) TMI 39 - ITAT DELHI] has deleted the penalty - No penalty is leviable u/s 271C and same is directed to be deleted. - Decided in favour of assessee.
- 2019 (9) TMI 685
Cash payments made to Royal Calcutta Turf Club u/s. 40A(3) - payment of operational expenses in relation to Horse Race - HELD THAT:- There is no dispute about assessee’s carrying on licensed bookmaker’s business with RCTC and therefore, he made the impugned cash payment to the said club only as ‘ operational charges’ has nowhere been doubted. The said operational charge relate to setting on horse racing conducted in the club on Saturdays/Sundays/Holidays only. P Assessee’s agreement with the club. The same suggest that the bookmakers have to pay operational charges in relation to previous day(s) horse racing next day & prior to commencement of the day(s) rates. Learned Departmental Representative fails to dispute that non compliance of this agreement clauses attracts appropriate action against book makers....... + More
- 2019 (9) TMI 684
Unexplained cash credits in the matter share application money - as alleged assessee failed to satisfy the three relevant parameters of identity, genuineness and creditworthiness - HELD THAT:- Form 20B with R.O.C & details of share application sufficiently indicates that it had filed all the relevant details of the holding entity, which has nowhere been rebutted from the Assessing Officer’s end. As emerges from all the foregoing details assessee had in fact received supplies of equipments to the tune of ₹ 6 crores from its heading entity M/s. Neon Healthcare & Research Institute Limited and the said entity also carried out pathological tests amounting to ₹ 3,35,000/- on its behalf. Learned counsel invited our attention to the fact that assessee’s foregoing detailed evidence(s) indicates that the amount of &....... + More
- 2019 (9) TMI 683
Exemption u/s 11 - charitable activity u/s 2(15) - exemption u/s 10(23C)(iv) - HELD THAT:- Section 2(15) of I.T. Act read with 3rd proviso to Section 143(3) of I.T. Act was invoked and exemption U/s 10(23C)(iv) was denied to the assessee. Further, out of assessee’s claim for depreciation was allowed by the AO and the remaining amount was disallowed on the ground that capital expenditure incurred on acquisition of fixed assets in the earlier years had been already allowed to the assessee as application of income. AO took the view that depreciation was to be allowed only on the value of assets acquired during the year under consideration. The assessee filed appeal before CIT(A) against the aforesaid Assessment Order. CIT(A) followed the order of his predecessor for Assessment Year 2011-12 and held in his appellate order dated 08.07.20....... + More
- 2019 (9) TMI 682
Penalty u/s 271(1)(c) - defective notice - disallowance of claim of u/s 43B - whether the assessee has concealed particulars of income or has furnished inaccurate particulars of such income during assessment proceedings? - HELD THAT:- Notice issued u/s 274 read with section 271(1)(c) of the Act, extracted above, in order to initiate the penalty proceedings against the assessee goes to prove that the AO himself was not aware / sure as to whether he is issuing notice to initiate the penalty proceedings either for “concealment of particulars of income” or “furnishing of inaccurate particulars of such income” by the assessee rather issued vague and ambiguous notice by incorporating both the limbs of section 271(1)(c). When the charge is to be framed against any person so as to move the penal provisions against him/her,....... + More
- 2019 (9) TMI 681
Eligibility of exemption u/s 11 & 12 - rendering of services in respect of Indian Premier League cricket (IPL) by the appellant - charitable activity u/s 2(15) - arrangement of conducting Indian Premier League cricket (IPL) matches agreed between BCCI and Kings XI Punjab - assessee cricket association is a society registered under the Societies Registration Act 1860. It was earlier granted registration u/s 12A which was cancelled by CIT and the cancellation was made from assessment year 2009-10 onwards in view of the amended provisions of section 2(15) - HELD THAT:- If we go strictly by the provisions of the Act, since the BCCI in its books of accounts has booked the payments to the State Associations as expenditure, it is thus payment out of its gross receipts and not out of income and thus it should not qualify as application of inc....... + More
- 2019 (9) TMI 680
Penalty u/s 271(1)(c) - bonafide belief - addition was made on enhancement u/s. 251(1) of the Act for the benefit of telescoping of income/outgoings - undisclosed transactions have been admitted to be undisclosed and he was ready to pay tax on it - scope of amendment - HELD THAT:- The position now is that unless and until the assessee substantiates the explanation and proves that such an explanation was bonafide, the addition made to his income shall deemed to represent the concealed income. As per the proviso to this Explanation, the onus to establish that the explanation offered was bonafide facts relating to the same and material to the computation of his income have been disclosed by him will be on the person charged for concealment. Now the entire onus is on the assessee to not only offer an explanation but also to substantiate it an....... + More
- 2019 (9) TMI 679
Addition made towards “undisclosed investment” - taxability of the cash deposits in the assessee’s bank account - HELD THAT:- Merely because the assessee’s father did not file the return of income within the due date specified u/s 139(1) it cannot be held that the cash component of the consideration should be assessed in the hands of the assessee as has been held by the CIT(A). Taking into account the factual matrix and the circumstances of the case, as discussed above, the inference of the AO that the cash deposits amounting in the assessee’s bank account in Corporation Bank, Vijaynagar Branch, Mysore, constitutes unexplained investment by the assessee in the case on hand is not tenable. The explanation furnished by the assessee in this regard was proper and plausible and ought to have been accepted, but was....... + More
- 2019 (9) TMI 678
Addition made u/s 40A(2)(b) - payment to the persons specified - Payment made towards subcontracting of work to JV - Payment of 99% of receipt instead of 95% as per AO - HELD THAT:- As decided in KEC-Delco-Vraha (JV) [2018 (9) TMI 1885 - ITAT DELHI] disallowance under this section is made in respect of the expenses incurred or payments made which are not deductible. This section has no application to income aspect of the assessee. As the AO has made disallowance u/s 40A(2)(b) in respect of income which the assessee in his opinion ought to have earned rather than certain expenses incurred, the provisions of this section are not attracted. Uphold the impugned order on this score deleting the disallowance - Decided in favour of assessee.
- 2019 (9) TMI 677
SEZ unit - Amendment in shipping bills - MEIS benefit - Section 149 of the Customs Act, 1962 - HELD THAT:- As far as examination of the consignment is concerned during the relevant time, there was no provision for physical examination of the cargo exported from SEZ unit under MEIS Scheme and that requirement was incorporated only on 19.09.2018 vide Notification G.S.R. No. 909 (E) dated 19.09.2018. Further, the entire export took place prior to incorporation of the physical examination requirement. Further, in the case of SEZ, the entire operations are under the control of Development Commissioner and the officers of the Customs posted therein and they can easily verify the entire records but the same was not done in this case. The impugned order denying the amendment of the Shipping Bills is not sustainable in law - Appeal allowed - decided in favor of appellant.
- 2019 (9) TMI 676
Maintainability of application - initiation of Corporate Insolvency Resolution Process - Section 9 of the Insolvency and Bankruptcy Code, 2016, read with Rule 6 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - Operational Debt - default in repayment of debt due and not payable - existence of dispute. HELD THAT:- This adjudicating authority is of the considered view that operational debt is due to the Applicant. That, service is complete and no dispute has been raised by the respondent. That, Applicant is an Operational Creditor within the meaning of sub-section (5) of Section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default - the Application filed by the Applicant is complete in all respects. It is a fit ca....... + More
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