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• 2019 (9) TMI 743
  
  Classification of service - Rate of GST - contract given to Shreeji Infrastructure India Pvt Ltd towards construction of residential quarters at 2x660 MW Shree Singaji Thermal Power Project Stage -II Khandwa - N/N. 11/2017 amended vide N/N. 20/2017, 24/2017 and 31/2017. HELD THAT:- The issue raised in the present application has been duly decided by this Authority in the matter of Application filed by IN RE: M/S. SHREEJI INFRASTRUCTURE INDIA (P.) LTD., [2018 (11) TMI 58 - AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH]. The applicant in the present application are the service receivers while M/s.Shreeji Infrastructure P.Ltd. are the service providers. This authority had ruled that "The works contract service of construction of 599 residential quarters allotted to the applicant (Shreeji Infrastructure P.Ltd.) by MPPGCL will merit classi....... + More

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• 2019 (9) TMI 742
  
  Classification of goods - Agriculture Knapsack Sprayer - whether classified under chapter sub heading No. 84248200 of the Custom/Excise Tariff Act or under entry 325 of Sch III or entry 195B of Sch II of Notification no. 1/2017 as amended? - rate of GST- Applicability of N/N. 01/2017-Central Tax (Rate) dtd. 28.06.2017 as amended vide N/N. 06/2018-CT(R) dtd.25.01.2018 and the corresponding notification issued under MPGST Act, 2017. HELD THAT:- The product in question is essentially a Mechanical Sprayer which can be carried on back and can be operated either by hand or through a battery. We find that there is no dispute to the classification of product, which even as per the own admission of the applicant would be under Chapter Head 8424 of the GST Tariff - even the applicable rate of GST is not disputed prior to 25.01.2018 as the product &....... + More

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• 2019 (9) TMI 741
  
  Provisional attachment of Bank Account - irregular availment of input tax credit - invocation of section 83 of CGST Act, 2017 - period between July 2017 and May 2019 - whether the respondent No.1 was justified in invoking Section 83 of the Act for the purpose of passing an order of attachment of the bank accounts? - revenue neutrality. HELD THAT:- Section 83 of the State GST Act empowers the Assessing Authority to make a provisional attachment of any property of the assessee during the pendency of any proceeding for the assessment or reassessment of any turnover, even though there is no demand outstanding against the assessee, if he is of the opinion that it is necessary to do so to protect the interest of the revenue. This provision has been made, in order to protect the interest of the revenue in cases where the raising of demand is lik....... + More

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• 2019 (9) TMI 740
  
  Proceedings against the transporter of goods - release of detained goods with vehicle on payment of applicable tax and penalty equal to 50% of the value of the goods, by the transporter - the owner of the goods does not come forward for such tax and penalty - case of writ petitioner is, that the transporter cannot be proceeded against even if the allegations against the owner of the goods i.e., dealer under TNGST Act, are true? HELD THAT:- As the vehicle and the consignment have since been released, this writ petition is disposed of preserving the rights of the writ petitioner to assail the aforesaid proceedings dated 20.08.2019 either by way of an appeal under Section 107 of TNGST Act or by way of a revision under Section 108 of TNGST Act - If the writ petitioner choses to assail the aforesaid proceedings in any one of the aforesaid mann....... + More

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• 2019 (9) TMI 739
  
  Assessment in the hands of representative / agent - Chief Financial officer (CFO) of the non-resident assessee - According to the appellant, the Chief Financial Officer was questioned about transfer of shares of the appellant by Clayton Dewandre to WABCO, Singapore, even though the Chief Financial Officer was not employed with the appellant during the Financial Year 2013-14 and had no knowledge of the transaction. Whether the writ petition ought to have been dismissed on the sole ground that the appellant had a right of reply to the show cause notice. The answer to the aforesaid question has to be in the negative, for the reasons discussed hereinbelow? - Division Bench held that no case was made out by the Department that in respect of transfer of share to a third party, that too outside India, the Indian company could be taxed when the Indian company had no role in the transfer HELD THAT:- Delay condoned. Leave granted.

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• 2019 (9) TMI 738
  
  Deduction u/s 80HHC - supporting manufacturers - whether the assessee being supporting manufacturers, are to be treated on par with the direct exporter for the purpose of deduction of export incentives under Section 80HHC? - HELD THAT:- So far as “supporting manufacturers” are concerned, under Section 80HHC(1A), where any Export House or Trading House has issued a certificate that the supporting manufacturer has, in fact, supplied such goods or merchandise for export, they shall also be allowed a deduction to the extent of profits referred to derived by the assessee from the sale of goods or merchandise to the Export House or Trading House. The manner of deduction, insofar as the exporter is concerned, is laid down in subsection (3) which when read together with its provisos make it clear that profits that are derived from suc....... + More

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• 2019 (9) TMI 737
  
  Validity of order of Tribunal staying the Show Cause Notice - Prohibition of Benami Property Transactions Act - HELD THAT:- The show-cause notice issued on 21st June 2019, is under Section 26(1) of the Benami Act and not under Section 26 (3). The reasons for this are not far to seek. The scheme of the Benami Act, under Section 5, provides for confiscation of any property which is subject matter of a benami transaction, by the Central Government. An Adjudicating Authority is appointed under Section 7. The proceedings for confiscation are initiated by the Initiating Officer under Section 24 of the Benami Act. If the Initiating Officer passes a provisional order of attachment of the property, he draws up a statement of case and refers it to the Adjudicating Authority under Section 24(5) of the Benami Act. The second level of adjudication the....... + More

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• 2019 (9) TMI 736
  
  Rectification u/s 154 - Assistant Commissioner, observed that rectification application assumes character of a matter being sub-judice, it needs to be dismissed - HELD THAT:- In view of the plain language of section 154, there is no embargo on the power of amendment if an appeal or revision is merely pending. The rejection of the rectification application on this ground was unwarranted. We are informed that the Appeal is still pending. The Assistant Commissioner has failed to exercise the jurisdiction vested in him and thus the impugned order will have to be set aside and the application will have to be decided. Writ Petition succeeds. The impugned order dated 13 June 2019 is quashed and set aside. The rectification application filed by the Petitioner under section 154 of the Income Tax Act, 1961 stands restored to the file of Assistant Commissioner of Income Tax 21(2), Mumbai to be disposed of on its own merits.

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• 2019 (9) TMI 735
  
  Deduction u/s 80P(2)(a) (i) - Appellant is admittedly a Primary Agricultural Co-operative Credit Society Registered under Tamil Nadu Co-operative Societies Act - HELD THAT:- Issue decided in M/S. S. 1234 UDAYAPTTI PACCS LTD., SALEM VERSUS THE INCOME TAX OFFICER, WARD 1 (4) , SALEM-7. [2019 (8) TMI 186 - MADRAS HIGH COURT] wherein as referred case of M/S. AA 713 THE KODUMUDI GROWERS COOPERATIVE BANK LTD., KODUMUDI VERSUS THE INCOME TAX OFFICER, WARD-II (1) , ERODE. [2018 (12) TMI 127 - MADRAS HIGH COURT] wherein held activity done by the appellant society cannot be truncated from the activity as a credit society and we are of the considered view that the Authorities below as well as the Tribunal committed an error in rejecting the stand taken by the appellant/ assessee. - Decided in favour of assessee.

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• 2019 (9) TMI 734
  
  Special audit u/s 142(2A) - as per the AO the questionnaire was remain conclusively unanswered - contention of the Petitioner was that there was no complexity in the books of account which would warrant the Respondent No. 1 to direct special audit - denial of natural justice - HELD THAT:- on the basis of the reasons recorded in the impugned order, it cannot be said that there was no genuine attempt on the part of the Assessing Officer to understand the nature of his business, its method of accounting, or to understand the nuances of the books of accounts or documents. The impugned order clearly reflects the reasons for ordering a special audit. AO initially issued a notice under Section 142(1) on 03.08.2018 along with detailed questionnaire including the reason for selection of case for scrutiny under Section 143 (3). Thereafter, a fresh ....... + More

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• 2019 (9) TMI 733
  
  Disallowance u/s 40(a)(ia) - Additions for non-deduction of TDS - retrospectively or prospectivity - second proviso to Section 40(a)(ia) of the Act inserted by Finance Act, 2012 whether is clarificatory and retrospective in nature - whether disallowance under Section 40(a)(ia) of the Act by the Tribunal is justifiable where the recipient of the amount has already discharged his tax liability therein? - HELD THAT:- Keeping in mind, the judgment of the Hon’ble Apex Court in Vatika Township Private Ltd [2014 (9) TMI 576 - SUPREME COURT] the principle of fairness, we find no reason to deviate from the decision of the Hon’ble Delhi High Court in the case of Ansal Land Mark Township Pvt. Ltd. [2015 (9) TMI 79 - DELHI HIGH COURT] in which it was held that the second proviso to Section 40 (a) (ia) of the Act is declaratory and curativ....... + More

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• 2019 (9) TMI 732
  
  Addition u/s 56(2)(vii)(b) and Section 69B - Family Settlement Deed - on perusal of the Memorandum of Family Settlement (MFS) noted that assessee has acquired the Bungalow due to relinquishment of rights in the said property by three brothers of the assessee for Rs.NIL. - HELD THAT:- In this case, since there was a Family Settlement between the assessee and three brothers and they have acted upon Family Settlement Deed and distributed various properties among themselves and necessary rights and title are transferred in favour of each brother would show that parties have entered into genuine transaction. As per the Family Settlement Deed, it was agreed that property in question with superstructure shall be taken by the assessee and that as per the Settlement Deed, the assessee has to contribute a sum of ₹ 20 crores from his own resou....... + More

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• 2019 (9) TMI 731
  
  Addition on account of interest received on External Commercial Borrowings [ECB], extended to Indian borrowers - levy of Interest u/s 234B - HELD THAT:- The issue stands covered in favour of the assessee and against the Revenue held Assessing Officer himself had admitted by grossing up the ECB interest by the amount of tax borne by the borrowers that tax at source has been deducted. We are thus of the view that no interest under section 234B of the Act can be levied for the tax demand on account of ECB interest and interest under section 234B is also not chargeable since ECB interest received by the assessee from the borrowers was subject to tax deduction at source under section 195 of the Act. The Assessing Officer is thus directed to delete the addition made on account of interest received from ECB given to Indian borrowers Levy of inte....... + More

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• 2019 (9) TMI 730
  
  Disallowance on account of excess cane price paid to sugarcane suppliers - deduction u/s 37 - HELD THAT:- As referred to TASGAON TALUKA S.S.K. LTD. [2019 (3) TMI 321 - SUPREME COURT] we set-aside the impugned order on this score and remit the matter to the file of A.O for deciding it afresh as per law in consonance with the articulation of law by the Hon’ble Supreme Court in the aforenoted judgment. AO would allow deduction for the price paid under clause 3 of the Sugar Cane (Control) Order, 1966 and then determine the component of distribution of profit embedded in the price paid under clause 5A, by considering the statement of accounts, balance sheet and other relevant material supplied to the State Government for the purpose of deciding/fixing the final price/additional purchase price/SAP under this clause. The amount relatable t....... + More

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• 2019 (9) TMI 729
  
  Assessment u/s 153C - proof of incriminating material found in search - HELD THAT:- Conditions of Section 153C are not satisfied in this case. The A.O, therefore, rightly framed regular assessment u/s 143(3) after considering the incriminating material available on record. A.O. in para-2 with regard to addition of the interest on PDCs has mentioned that on perusal of the bills of payments of purchase consideration it was noticed that only part payments have been made while executing the sale deed and balance consideration was paid through PDCs. Therefore, the addition is made by the A.O. on the basis of the documentary evidences produced by the assessee with regard to the payments mentioned in the sale deed. A.O, therefore, correctly made assessment under section 143(3). A.O. has examined the evidences available on record and rightly came....... + More

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• 2019 (9) TMI 728
  
  Deduction u/s 80IB - commercial production of its original undertaking in the previous year relevant to Assessment Year 2001-02 - company is engaged in the business of a refinery and as it fulfills the required conditions u/s 80-IB(9)(iii) - HELD THAT:- Meaning of ‘mineral oil’ deserved to be considered in a wider manner. Moreover, the meaning of refining should be construed in the context of a refinery and it should not be restricted to simple purification process as opined by the Id AO and upheld by the Id CIT(A). The Id AO and the Id CIT(A) has held that ‘Naphtha’, the raw material used by the M S Plant is a ‘Petroleum Product’. The ‘Mineral oil’ would include petroleum and petroleum products. Moreover, the MS Plant of the assessee company is engaged in processes which fall within the mea....... + More

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• 2019 (9) TMI 727
  
  Disallowance of excess deduction claimed u/s 10AA r.w.s 80IA(10) - AO observed that the Appellant earned more than 'ordinary profits' to its associated enterprise ('AE') - HELD THAT:- AO was of the view that the assessee by showing such high OP/OC had earned super normal profits when compared with the margins of comparable companies. We find no merit in the observations of AO in this regard as the concept of PLI i.e. OP/OC which has been adopted by AO was relevant for comparability for transfer pricing analysis. The same cannot be used for holding the assessee to have earned super normal profits in carrying on its business for that. He has to look at net profits shown by assessee, which in the present year is 63% only. The learned Authorized Representative for the assessee pointed out that similar net profit range has been....... + More

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• 2019 (9) TMI 726
  
  Revision u/s 263 - MAT credit under section 115JAA - entitled to claim carried forward MAT credit of the amalgamating company - assessee challenged the reduction of MAT credit in an appeal filed before the first appellate authority - HELD THAT:- Commissioner (Appeals) the assessee had raised a ground claiming MAT credit pertaining to the assessment year 2006-07. While deciding the said ground, he has clearly observed that in the original assessment order, the Assessing Officer has not made any discussion on the issue. Accordingly, he directed AO to allow credit as per law. It is further seen, as against the MAT credit of more than ₹ 58 crore claimed by the assessee before the Commissioner (Appeals), the AO allowed credit for ₹ 20,12,95,237. In these circumstances, it cannot be said that the order giving effect to is nothing bu....... + More

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• 2019 (9) TMI 725
  
  Penalty u/s. 271B - Non compliance to provisions of section 44AB - assessee has shown entire receipt as income - assessee has received commission for which has neither got his books of account audited nor furnished report on such audit as required u/s 44AB - HELD THAT:- On a conjecture reading of provisions of section 44AB and Section 271B of the Act, we noted that it is a mandatory provision that the assessee should get his books of account audited having turnover of more than ₹ 60 lakhs. In the present case, undisputedly, the admitted facts are that the gross receipts of ₹ 64,16,667/- and ₹ 67,51,712/- for the assessment years 2010-11 & 2011-12 and the assessee did not audit his books of account during the relevant financial period. We are unable to see any safeguard in the said provisions in a situation when the a....... + More

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• 2019 (9) TMI 724
  
  Reopening of assessment u/s 147 - valid source of the amount used for repayment of loan amount - assessee claimed the source from the agricultural income, rental income and interest income were assessed to income tax. - HELD THAT:- From the perusal of the assessment order, it is clear that the AO assessed agricultural income, rental income and interest income and the same should be treated as amount available for repayment of loan in the absence of any evidence to the contrary. AO had not brought any material on record to demonstrate that the amounts were utilized for some other purpose. AO was not justified in making the addition without giving any valid reason. CIT(A) ought not have confirmed the action of the AO on the ground that repayment of loan amount was not accounted in the books of accounts, as this cannot be reason for making t....... + More

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