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Showing 181 to 200 of 2045 Records
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2019 (1) TMI 1867 - ITAT AHMEDABAD
Ex-parte order - HELD THAT:- We find that in spite of service of notices by the Registry neither any one appeared nor there was any adjournment application filed on behalf of assessee for the hearing on 13-08-2018. Thus, following the various decisions in the cases of Multiplan India (P) Ltd [1991 (5) TMI 120 - ITAT DELHI-D], Hon'ble Madhya Pradesh High Court in the case of Estate of late Tukojirao Holkar Vs. CWT [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT] the Tribunal dismissed the appeal of assessee by passing ex parte order for non prosecution. We find that there was sufficient reason for the assessee in not appearing before the Tribunal on the said date of hearing [13-08- 2018]. Therefore, in view of submission of assessee we recall the order by allowing this Misc. Application filed by the assessee.
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2019 (1) TMI 1866 - ITAT BANGALORE
TP Adjustment - comparability - Considering R Systems International Ltd. as comparable - HELD THAT:- As rightly pointed out by the ld. AR, Rule 10(B)(4) does not exclude from consideration the data of an entity merely because its financial year is different from the financial year of the assessee.
What the Rule requires is that the data to be used in analyzing the financial results of an uncontrolled transaction with an international transaction shall be the data relating to the financial year in which the international transaction has been entered into.
So long as the data relating to the financial year is available, it matters not, if the financial year followed is different. In the case before us the data relating to the relevant financial year of R.Systems International Limited is available. We are, therefore, entirely in agreement with the decision relied by ld. AR that if the data relating to the financial year in which the international transaction has been entered into is directly available from the annual accounts of that comparable, then it cannot be held as not passing the test of sub-rule(4) of rule 10B and the same is the view taken by Hon’ble Punjab & Haryana High Court in the case of CIT Vs. Mercer Consulting (India) Pvt. Ltd.[2016 (8) TMI 1163 - PUNJAB AND HARYANA HIGH COURT]. Being so, in our opinion data relating to the assessee financial year to be interpolated and thereafter if required, it should be considered as a comparable to the assessee’s case. With this observation we remit this issue to the file of TPO for his fresh consideration.
Exclusion of Accentia Technologies Limited as comparable - main contention of ld. AR is this Accentia Technologies Ltd. is functionally not comparable to assessee, which is a BPO - The segmental data relevant to software services and product ITES are not available in the annual report. That company own intangibles. These facts were considered in the case of the coordinate bench in the case of Outsource Partners International Pvt. Ltd. [2017 (2) TMI 1410 - ITAT BENGALURU] and held that it cannot be a comparable case as in the case of assessee. Being so, we uphold the argument of ld. AR and direct the TPO to exclude the above comparable.
Exclude Fortune Infotech Limited as comparable - As discussed in earlier year this comparable Fortune Infotech Ltd. was rejected as a comparable in the case of Outsource Partners International Pvt. Ltd. Vs. DCIT [2017 (2) TMI 1410 - ITAT BENGALURU] and it was held that it cannot be a comparable. Accordingly, we direct the AO/TPO to exclude the same.
Exclusion of Jeevan Scientific Technology Limited - AR submitted that Jeevan Scientific Technology Ltd. cannot be considered as comparable to the assessee’s case as it fails service income filter of 75% as applied by the TPO. It is also submitted that DRP has itself excluded ICRA Online Ltd. as comparable but the fact that 75% of export earning filter needs to be applied as against 25% of export earning filter applied by the TPO. Therefore in our opinion these facts required to be examined by the TPO and if it is so ICRA Online Ltd. was excluded as comparable, this comparable is also to be excluded on the same basis. Accordingly, this issue is remitted to TPO for fresh consideration with this observation.
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2019 (1) TMI 1865 - ITAT, AHMEDABAD
Monetary limit for maintainability of appeal - Low tax effect - HELD THAT:- Board has provided exemptions at clause (10) of the Instructions wherein it has been provided that these instructions will not be applicable, where the Constitutional validity of the provisions of an Act/Rule is under challenge or where Board’s order, notification, instruction or circular has been held to be illegal or where Revenue Audit objection in the case has been accepted by the Department or where the addition relates to undisclosed foreign assets/bank accounts etc. We find that the present cases do not fall within the exemption clause and the tax effect is less than ₹ 20 Lacs in each appeal.
DR states the liberty may kindly be given to point out, upon necessary further verifications, and to seek recall the dismissal of appeals and restoration of the appeals in the cases (i) in which it can be demonstrated that the appeals are covered by the exceptions (ii) which are inadvertently included in this bunch of appeals, wherein the tax effect, in terms of the CBDT circular (supra), exceeds ₹ 20,00,000. None opposes this prayer; we accept the same.
We make it clear that the appellants shall be at liberty to point out the cases which are wrongly included in the appeals so summarily dismissed, either owing to wrong computation of tax effect or owning to such cases being covered by the permissible exceptions- or for any other reason, and we will take appropriate remedial steps in this regard. Appeals are dismissed as not maintainable.
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2019 (1) TMI 1864 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, KOLKATA BENCH
Maintainability of application - initiation of CIRP - whether Adjudicating Authority had no jurisdiction to decide claim and counter claim? - HELD THAT:- On merit, there may be some prima facie case made out for issuance of notice to hear the other side but in view of the fact that impugned order was passed by the Adjudicating Authority on 23rd July, 2018and certified coy was delivered on 24th August, 2018 and the appeal having filed on 8th January, 2019 i.e. beyond 45 days (30 days period for filing an appeal plus 15 days further period which can be condoned by this Appellate Tribunal), we hold that we have no jurisdiction to condone the delay in terms of Sub-section (2) of Section 61 of the I&B Code.
The appeal is dismissed being barred by limitation.
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2019 (1) TMI 1863 - ITAT, JAIPUR
Penalty proceedings U/s 271D and 271E - Default u/s 269SS and 269T - HELD THAT:- It is pertinent to note that when the explanation of the assessee that the said amount was deposited by the said person in the bank account of the assessee for the purpose of taking a D.D. in favour of the Excise Department for participating in the tender of liquor shops then it would not fall in the ambit of loan or deposits as contemplated in the provisions of Section 269SS and 269T of the Act. Therefore, once it is not a loan taken by the assessee for his requirement but the explanation was accepted by the Assessing Officer that this amount was deposited by Shri Shreeram for his requirement of participating in the tender of the liquor shops then in absence of any fresh material or contrary record to show that the amount was taken as a loan by the assessee for assessee’s requirement, the penalty levied U/s 271D and 271E are not justified.
When the Assessing Officer was fully satisfied with the explanation that the amount was deposited by Shri Shreeram for the purpose of making D.D. for participating in the tender of the liquor shop then the said explanation of the assessee itself is reasonable explanation to show that the case of the assessee does not fall in the provisions of Section 269SS or 269T of the Act. Accordingly, we delete the penalty levied in both these appeals U/s 271D and 271E of the Act. - Decided in favour of assessee.
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2019 (1) TMI 1862 - MADRAS HIGH COURT
Deduction u/s 10B - Tribunal held that for the purpose of applying the formula under sub-section (4) of Section 10B, the freight, telecom charges, or insurance attributable to delivery of articles or things or computer software outside India or expenses, if any, incurred in foreign exchange in providing the technical services outside India ought to be excluded both from the export turnover and from total turnover even though the statute has provided for such exclusion only from the export turnover - HELD THAT:- This question has been resolved by a recent judgment of the Supreme Court in the case of Commissioner of Income Tax v. HCL Technologies Ltd. [2018 (5) TMI 357 - SUPREME COURT] in the instant case, if the deductions on freight, telecommunication and insurance attributable to the delivery of computer software under Section 10A of the IT Act are allowed only in Export Turnover but not from the Total Turnover then, it would give rise to inadvertent, unlawful, meaningless and illogical result which would cause grave injustice to the Respondent which could have never been the intention of the legislature.
Even in common parlance, when the object of the formula is to arrive at the profit from export business, expenses excluded from export turnover have to be excluded from total turnover also. Otherwise, any other interpretation makes the formula unworkable and absurd. Hence, we are satisfied that such deduction shall be allowed from the total turnover in same proportion as well.
On the issue of expenses on technical services provided outside, we have to follow the same principle of interpretation as followed in the case of expenses of freight, telecommunication etc., otherwise the formula of calculation would be futile. Hence, in the same way, expenses incurred in foreign exchange for providing the technical services outside shall be allowed to exclude from the total turnover. Decided in favour of the Assessee and against the Revenue.
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2019 (1) TMI 1861 - ITAT PUNE
Addition u/s 36(1) or 37(1) - Disallowance made in respect of payment to unapproved gratuity fund - HELD THAT:- As decided in own case [2017 (6) TMI 1342 - ITAT PUNE] amount paid towards unapproved gratuity fund can be deducted under section 37(1) of the Act, though not under section 36(1)(v) of the Act. The amount which has been paid by the assessee towards an unapproved gratuity fund is duly allowable as deduction under section 37(1) of the Act though the assessee is not entitled to claim the deduction under section 36(1)(v) of the Act. Accordingly, the ground of appeal No.1 raised by the assessee is allowed
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2019 (1) TMI 1860 - SUPREME COURT
Civil suit - specific performance of the contract in relation to the suit land - HELD THAT:- The concurrent findings of facts recorded by the two Courts below on all the material issues are binding on this Court. It is much more so when we are unable to notice any kind of perversity or illegality in the findings - the findings apart from being concurrent are such that they are capable of being recorded on appreciation of evidence adduced by the parties. These findings are neither against the pleadings nor the evidence and nor any principle of law. These findings are also not shown to be perverse to the extent that no judicial person can ever record such findings.
It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds - the aforementioned questions are part of the statutory requirements (See Sections 16 (c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and the forms 47/48 of Appendix A to C of the Code of Civil Procedure). These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.
Both the Courts below held that the plaintiff has failed to prove his readiness and willingness to perform his part of the contract. The issue of readiness and willingness, in our view, is the most important issue for considering the grant of specific performance of the contract and the same having been held by the two Courts below on appreciation of evidence against the plaintiff, it is binding on this Court. It being essentially a question of fact, this Court is not inclined to again appreciate the entire evidence while hearing the appeal under Article 136 of the Constitution. It is more so when the appellant was also not able to point out any material perversity or/and illegality in the finding so as to call for any interference therein by this Court.
Appeal dismissed.
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2019 (1) TMI 1859 - TELANGANA HIGH COURT
Money Laundering - criminal conspiracy with other accused - scheduled offences - requirement or non-requirement of any sanction to take cognizance for the offences against the officials as accused - whether the Act is a complete code covering all areas as contended and if not to what area with reference to Sections 4 & 5 Cr.P.C. the provisions of Cr.P.C. as general law either specially made applicable by the special provisions or from its silence so to apply unless shown deemed not applicable? - HELD THAT:- Against transactions constituting money-laundering, the provisions of the Act contemplate two sets of proceedings; (a) prosecution for the offence of money-laundering defined in Sec. 3 with the punishment provided in Sec. 4; and (b) attachment, adjudication and confiscation in the sequential steps and subject to the conditions and procedures enumerated in Chapter III of the Act and out of the two now we are concerned with the first set of the proceedings for prosecution covered by the offence of money laundering as ascribed in Sections 3 r/w 2(p) of the Act in an expansive locus as comprehending direct or indirect attempt to indulge; assist, be a party to or actually involved knowingly in any process or activity connected with the proceeds of the crime and projecting it as untainted property and on proof of guilt for punishment of the offenders of Money-Laundering, as provided in Section 4 of the Act, that would follow after a due cognizance of the offence with pre-trial enquiry if any and trial by the Special Court; which is conferred exclusive jurisdiction qua Section 44, Chapter VII of the Act. The prosecution, trial and conviction for the offence of Money-laundering are thus the criminal sanction administered by the Legislation and effectuated by a deprivation of personal liberty as a disincentive to a malfeasant.
Section 71 of the Act clearly speaks that the provisions of the Act shall have effect notwithstanding inconsistent therewith contained in any other law for the time being in force. It has the overriding effect to the provisions of the Act over any other law for the time being in force provided it is shown that other law is inconsistent with the provisions of the Act. It is to be seen therefrom whether the Act not covered any area and if so whether the Cr.P.C. provisions then applicable provided those are not inconsistent with the provisions of this Act, leave about other any law-in force for the time being to consider any inconsistency from any provisions thereunder. From this now coming to the Section 46 of the Act at the cost of repetition it specifically speaks that Cr.P.C. provisions are applicable to the proceedings before the Special Court. From what Section 46 reproduced supra, Section 46(1) from the very wording supra of save as otherwise provided in this Act the provisions of the code in entirety which includes provisions as to bails or bonds shall apply to the proceedings before the special Court and for the purpose of said provisions the special Court shall be deemed to a Court of Session. Thus Cr.P.C. is applicable to the proceedings before the special Court save as otherwise specifically provided in the Act if not inconsistent therewith in the Act or anything inconsistent therewith to prevail to the extent the Act provisions specifically provided as special law taking away of the application of the Cr.P.C. provisions. Thus, the Act provisions are applicable in addition to and not in derogation to what is specially provided in the Act.
The contention has no legs to stand in saying to prosecute the Chairman and Managing Director of APIIC sanction under Section 197 Cr.P.C. is not required or that he is though an IAS Officer not a public servant - In fact this Court in L.V. Subrahmanyam v. State of Telangana, where he was arrayed as A11 and the petitioner herein was A1, it is categorically observed that they are public servants and sanction is required under Section 197 Cr.P.C. and under Section 19 of PC Act respectively for the IPC offences and PC Act offences and also discussed the role of the Chairman and Managing Director of APIIC as limited.
It is crystal clear that for filing of a private complaint to take cognizance before the special court by the competent authority, obtaining and filing of the orders granting sanction by the competent authority to prosecute the public servant is mandatory and more particularly for the special court to take cognizance which is lacking in the case on hand and for want of sanction the cognizance orders respectively of the learned Special Judge are no way sustainable and are liable to be set aside - On the scope of requirement of sanction under Section 197 Cr.P.C. and it's marked difference with Section 19 of PC Act, this Court in LV Subrahmanyam supra dealt with in detail particularly at Paras 44 & 45 and negated as untenable the contention of the learned Special Public Prosecutor for CBI of validity or otherwise of sanction and requirement or not is a matter to be considered in trial, by answering the scope of law in this regard from Paras 47 to 49 in saying once it is noticed about the sanction is required and it is brought to the notice of the Court of the prosecution no way sustains for want of sanction the continuation of the proceedings is nothing but abuse of process and to sub serve the ends of justice the inherent power or writ jurisdiction has to be invoked in saying ends of justice are more important and Court cannot shut its size when brought to the notice of the Court any abuse of process leading to injustice, but for invoking the inherent power or writ jurisdiction which have no limitations but self imposed that too mainly to sub serve the ends of justice having its roots in necessity and its breadth thereby is coextensive with necessity.
All the three criminal petitions are allowed by setting aside the respective cognizance orders of the learned Special Judge holding that sanction to prosecute the respective petitioners in the respective cases as public servants is mandatory and prerequisite to take cognizance and from its lacking the learned Special Judge should not have been taken cognizance and the cognizance orders thereby are unsustainable, by directing further the learned Special Judge to return said complaints to the complainant/s if at all to submit with necessary sanction orders from the competent authority respectively.
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2019 (1) TMI 1858 - CESTAT MUMBAI
Scope of coverage under Central Excise Act, 1944 - processor undertaking printing and stentering of ‘terry towel fabric’ without aid of power - Applicability of Note 7 in Chapter 58 of the First Schedule to Central Excise Tariff Act, 1985 - HELD THAT:- The appellant, if undertaking the two processes without aid of power, would not be liable to duties of excise as a manufacturer. It is not in dispute that the appellant works on running the length of fabric which is printed and stenterized. It would appear from the findings that the allegation of use of power has been upheld solely because light is used for inspection of the printed fabric. That is not the intent of the said note in chapter which must be inextricably connected with the process. It has been held in re Swastik Dyeing & Bleaching Factory [2003 (12) TMI 206 - CESTAT, MUMBAI] that, insofar as cotton fabric is concerned, stentering involves mere drying; there is no evidence that any power source is utilised for such drying.
Appeal allowed - demand as well as penalty set aside - appeal allowed by way of remand.
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2019 (1) TMI 1857 - AUTHORITY FOR ADVANCE RULING, UTTAR PRADESH
Classification of services - activity in relation to function entrusted to Panchayat or Municipality under Article 243G or Article 243W respectively, of the Constitution of India or not - Project Development Service (i.e. Detailed Project Report Service) and Project Management Consultancy services (PMCS) provided by the applicant to recipient under the contract for SUDA or not - Project Management Consultancy services (PMC) under the contract for PMAY - pure services or not.
Whether the Project Development Service (i.e. Detailed Project Report Service) and Project Management Consultancy services (PMCS) provided by the applicant to recipient under the contract for SUDA and the Project Management Consultancy services (‘PMC’) under the contract for PMAY would qualify as an activity in relation to function entrusted to Panchayat or Municipality under Article 243G or Article 243W respectively, of the Constitution of India? - HELD THAT:- SUDA has been established as a State level nodal agency, under the Department for Urban Employment and Poverty Alleviation by Uttar Pradesh Government. This agency is registered under the ‘Registration of Societies Act’ since 20th November, 1990. As per the website of SUDA the main objectives of Society shall be - (a) To identify the urban poor in the State, (b) To draw the plans and scheme for the upliftment of the urban poor in the State, (c) To implement schemes for the benefit of the urban poor either directly or through other agencies engaged in this direction, whether private, public or cooperative, (d) To review the progress of the execution of these activities as well as effectiveness of the benefits directed towards the urban poor, (e) To set up or establish any specific service such as training facilities, infrastructural etc. in furtherance of the economic interest of the urban poor. Further, as per website of Pradhan Mantri Awas Yojana-Housing for All (Urban), Ministry of Housing and Urban Affairs, the PMAY is a Scheme to provide central assistance to Urban Local Bodies (ULBs) and other implementing agencies through States/UTs for Rehabilitation of existing slum dwellers using their land as a resource through private, participation, and Affordable Housing in Partnership.
Scope of work awarded to the applicant under different contracts - HELD THAT:- The Consultancy services rendered by the applicant under the contract with State Urban Development Agency, Uttar Pradesh (SUDA), and for PMAY are in relation to functions entrusted to Municipalities under Article 243W and to Panchayats under Article 243G of the Constitution of India.
Whether, such services provided by the applicant would qualify as Pure services (excluding works contract service or other composite supplies involving supply of any goods) as provided in Serial Number 3 of Notification No. 12/2017-Central Tax (Rate), dated 28 June, 2017, as amended (S. No. 3A) by Notification No. 2/2018-Central Tax (Rate), dated 25 January, 2018 issued under Central Goods and Services Tax Act, 2017 (CGST) and corresponding Notifications No. - KA.N.I.-2-843/X1-9 (47)/17-UP. Act-1 - 2017 - Order - (10) - 2017 Lucknow, dated June 30, 2017 issued under Uttar Pradesh Goods and Services Tax Act, 2017 (UPGST Act), where the Project cost includes the cost of service rendered along with reimbursement of cost of procurement of goods for rendering such service, and, thus, be eligible for exemption from levy of CGST and UPGST, respectively? - HELD THAT:- The services being rendered by the applicant qualify as “Pure Service (excluding works contract service or other composite supplies involving supply of any goods)” as provided in Serial Number 3 of Notification No. 12/2017-Central Tax (Rate), dated 28 June, 2017, as amended (S. No. 3A) by Notification No. 2/2018-Central Tax (Rate), dated 25 January, 2018 issued under Central Goods and Services Tax Act, 2017 (‘CGST’) and corresponding Notifications No. - KA.N.I.-2-843/X1-9 (47)/17-UP. Act-1 - 2017 - Order - (10) - 2017 Lucknow, dated June 30, 2017 issued under Uttar Pradesh Goods and Services Tax Act, 2017 (‘'UPGST Act’), where the Project cost includes the cost of service rendered along with reimbursement of cost of procurement of goods for rendering such service, and, thus, be eligible for exemption from levy of CGST and UPGST, respectively.
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2019 (1) TMI 1856 - AUTHORITY FOR ADVANCE RULING, UTTAR PRADESH
Scope of Advance Ruling - Liability of members of RWA are liable to pay GST - services received by them directly from the third party despite maintenance charges being less than ₹ 7,500/- per month - HELD THAT:- The applications for the advance ruling should be directly related to applicant in respect of supply of goods or services. In the instant case applicant is a recipient of services and not the supplier of the said services, since the applicant has sought ruling which is directly related to supplier of services, their application do not fall under the ambit of Section 95(a) of the Act.
The ruling cannot be given as the matter does not fall within the purview of “Advance Ruling” in term of Section 95(a) of CGST/SGST Act, 2017.
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2019 (1) TMI 1855 - AUTHORITY FOR ADVANCE RULING, UTTAR PRADESH
Exemption from payment of GST - supply of products - use of the name of the applicant i.e. ‘General Mills India Pvt. Ltd. on the packaging for supply of products by the applicant solely for the limited purpose of complying with the mandatory requirement under Chapter 2 of FSSAI Regulations and not for the purpose/with the intention of indicating a connection in the course of trade between the products - whether amount to ‘bearing a registered brand name’ or ‘bearing a brand name on which an actionable claim or enforceable right in a Court of law is available’ in terms of S. No. 73 of the Notification No. 28/2017-Central Tax (Rate), dated 22 September, 2017? - applicability of exemption under S. No. 73 of Amended Exemption notification if the applicant voluntarily foregoes the brand name used by them.
HELD THAT:- The applicant is packing their product which are classifiable as Wheat or Meslin flour in unit containers using the name of the applicant i.e. M/s. General Mills India Pvt. Ltd. - The Notification No. 2/2017-Central Tax (Rate), dated 28th June, 2017 (and corresponding notifications under SGST Acts and IGST Act) is the central point of discussion here. The said notifications exempt various goods and services from the payment of duty - Vide Notification No. 28/2017-Central Tax (Rate), dated 22-9-2017 the words “other than those put up in unit container and bearing a registered brand name”, the words, brackets and letters “other than those put up in unit container and, - (a) bearing a registered brand name; or (b) bearing a brand name on which an actionable claim or enforceable right in a Court of law is available [other than those where any actionable claim or enforceable right in respect of such brand name has been foregone voluntarily, subject to the conditions as in the Annexure I]”, were substituted. Therefore, for availing exemption from whole of the duty, the goods shall be other than those goods fulfilling the said conditions mentioned in (a) and (b) - Further, the ruling of the Authority for Advance Ruling under GST, Maharashtra in the case of M/s. Aditya Birla Retail Limited [2018 (8) TMI 1072 - APPELLATE AUTHORITY FOR ADVANCE RULING MAHARASHTRA] also supports the said view wherein it was held that “Thus proposed change of removing brand name “MORE” and logo “Aditya Birla Retail” and replacing it with name ‘Aditya Birla Retails Ltd.’ is not going to make any difference so far as establishing connection of goods with manufacturers”.
In the instant case, the applicant is using their name in place of any logo or brand name, which enables the customers to connect the product of the applicant with the name of the manufacturer i.e. General Mills India Pvt. Ltd. Therefore, the above rulings of the Authority for Advance Ruling also applicable in the instant case - the supply of the said product by the applicant is not exempted under the Heading No. 73 of Notification No. 2/2017-Central Tax (Rate), dated 28th June, 2017 and the corresponding notification issued under the UPGST Act, 2017.
If the applicant voluntarily forego the enforceable right to such brand name (i.e. the expression ‘General Mills India Pvt. Ltd.’), in the manner as prescribed under the Amended Exemption Notification and claim exemption from payment of GST on supply of products under said S. No. 73 of Amended Exemption notification, whether the applicant will be eligible for exemption under the said notification? - HELD THAT:- In the instant case, the applicant is packing their product in unit containers with the name ‘General Mills India Pvt. Ltd.’ on the packaging for supply of products. Since, Wheat or Meslin flour packed in unit containers are exempted under the said notification only if the manufacturer fulfills the condition (b) of the said notification subject to the conditions as in the Annexure-I - Therefore, it is clear that if the applicant voluntarily foregoes the brand name used by them subject to conditions as in the Annexure-I of the said notification, the applicant shall be eligible for exemption from duty under the said notification.
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2019 (1) TMI 1854 - COMMISSIONER OF GST (APPEALS), CHANDIGARH
Refund of tax paid in cash - Scheme of Budgetary Support - Reverse Charge Mechanism - refund based on unutilized tax credit at the end of the quarter July, 2017 to September, 2017 - HELD THAT:- The Government of India vide Notification No. 10/2017-Integrated Tax (Rate), dated 28th June, 2017 notified the payment of IGST on reverse charge basis i.e. for certain category of supply of services tax liability has been shifted on the recipient of services to be paid in cash and under the said scheme the tax paid can be claimed as credit in their book of accounts for utilising the same for discharging their outward tax liabilities. Hence, it is observed that the tax paid under Reverse Charge Mechanism cannot be treated as duty paid under the forward charge i.e. outward tax for claiming the refund of the same under the scheme of Budgetary Support. As such the plea of the appellant does not hold good inasmuch as every payment made in cash has to be treated as tax paid in cash, whereas in this scenario the tax paid on behalf of other person’s liability is available in the form of Cenvat credit. Hence, the adjudicating authority has correctly rejected the claim of the appellants on this issue and there are no infirmity in the impugned order.
Rejection on the ground that they had balance in TRAN-1 by the end of the quarter i.e. July, 2017 to September, 2017 - HELD THAT:- The Scheme of Budgetary Support was introduced by the Ministry of Commerce and Industry vide their Notification dated 5-10-2017 followed by the Central Board of Excise & Customs Circular dated 27-11-2017 whereunder it has been made amply clear that the said scheme has been worked out on quarterly basis for which claims shall be filed on a quarterly basis - In view of the provisions of the Scheme it is quite evident that the refund under budgetary support can only be filed after the end of the quarter from the tax amount paid in cash once the entire credit is exhausted and not on monthly basis as has been pleaded by the appellant in the grounds of appeal. Moreover, it is found that even the jurisdictional Range Officer in his report has categorically mentioned that at the end of the quarter the appellant had balance in their credit account and the claim of the refund on this account was not recommended for sanction. Accordingly, the adjudicating authority has correctly rejected the claim of the appellant in view of the provisions laid down in the scheme of budgetary support ibid.
Further, the appellant has pleaded that the amount of credit which was appearing at the end of the quarter primarily due to Transitional credit which had been subsequently utilized by the appellants in the future tax payments and accordingly, reduced the refund for the quarter ended 31 December, 2017, does not hold good because for any reason once the balance of credit figures out in the records of the appellant, the tax in cash during the said quarter is to be paid only once the entire credit has been exhausted in view of the provisions of the Scheme of Budgetary support. The refund has been correctly rejected by the adjudicating authority.
The appeal filed by the appellant is rejected and the impugned order passed by the adjudicating authority is upheld.
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2019 (1) TMI 1853 - ITAT CHENNAI
Disallowance u/s 14A r.w.r 8D - HELD THAT:- Any investments made in the subsidiary, which may not be for the purpose of earning dividend and may be for the purpose of having controlling interest therein, shall attract the provisions of section 14A read with Rule 8D.
The reliance placed by assessee on the decision of the Hon’ble Jurisdictional High Court in the case of Redignton India Ltd., [2017 (1) TMI 318 - MADRAS HIGH COURT]wherein, it was held that no disallowance could be made when no exempt income is earned by the assessee has no legs to stand once the Hon’ble Supreme Court has subsequently given a detailed judgement in the matters of section 14A of the Act in the case of Maxopp Investment Ltd. v. CIT [2018 (3) TMI 805 - SUPREME COURT] which automatically supersedes all existing decisions of the Hon’ble High Courts. In view of the above facts and circumstances, we sustain the disallowance confirmed by the ld. CIT(A). Thus, the ground raised by the assessee stands dismissed.
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2019 (1) TMI 1852 - ITAT PUNE
Bogus purchases - cash sales for less than purchase price for not producing the proof of payment to supplier - HELD THAT:- The assessee in his written submission has stated that the supplier is local supplier having registered under the MVAT. The assessee has produced before the Assessing Officer and CIT(A), purchase bills, Extract of account, quantity statement and nexus with sale bills etc. It is the contention of the assessee in the written submissions that the Assessing Officer disallowed for the reason that ‘no delivery challan’ and transport receipt were given. The Assessing Officer doubted sales as if cash sales for less than purchase price for not producing the proof of payment to supplier.
As perused the case record and written submissions filed by the assessee. Taking into consideration of entirety of facts and circumstances, we deem it fit and proper to uphold the disallowance @20% on the said purchases and Assessing Officer is directed to provide appeal effect accordingly. Hence, ground No.1 of the appeal is partly allowed.
Disallowance of commission payment - CIT(A) on the issue has observed that the commission was claimed by way of journal entry at the end of the year - HELD THAT:- We find, it is not disputed by the Revenue that broker or so called dalal, they have shown income in their return and that the assessee has also deducted TDS on such payments. Taking into consideration of entire facts and circumstances, the total disallowance is unjustified and therefore, we restrict the disallowance @20% of the total expenses. Hence, ground No.2 of the appeal is partly allowed.
Addition of interest - interest was paid on the loans taken from the banks and on the other hand, no interest was charged on loans given to the sister concerns - HELD THAT:- We find that the CIT(Appeals) stated that nexus of interest free funds is not established and funds are inter mixed. The assessee stated in the written submission that working of interest on interest free funds received and interest on interest free funds advances have been submitted before the Ld.CIT(Appeals) - As per the contention of the assessee is that it has got more interest free funds which are more than the interest free advances made, to meet the ends of justice, we confirm 20% of the said disallowance. Hence, ground No. 3 of the appeal is partly allowed.
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2019 (1) TMI 1851 - ITAT DELHI
Accrual of income in India - reimbursement of expenses by BG Exploration and Production India Limited (‘BGEPIL’) to the appellant for services rendered - As stated that the assessee is rendering services to BG Exploration and Production India Limited (BGEPIL) and BGEPIL is reimbursing expenses to the assessee, therefore, there is no income which could be chargeable to tax in India - HELD THAT:- As decided in own case for assessment years 2008-09 to 2010-11 we hold that the amount received by the assessee from BGEPIL is taxable and cannot be accepted to be reimbursement of expenses by BGEPIL to the assessee. However, the assessee’s alternate contention that the above receipt should be taxed as per provisions of section 44BB is accepted.
Thus the amount received by the assessee from BGEPIL cannot be accepted to be reimbursement of expenses by BGEPIL to the assessee and the same is taxable in India.
Payments received by the appellant from BGEPIL - taxable in terms of section 44DA of the Act as opposed to section 44BB - HELD THAT:- Section 44DA would be applicable where the income by way of royalty or fees for technical services is received from the Government or an Indian concern in pursuance to an agreement made by a non-resident or a foreign company with Government or Indian concern after 31st day of March, 2003. In the case under consideration before us, admittedly, the payment is neither received from the Government nor from an Indian concern. Therefore, Section 44DA would not be applicable and, the decisions of ITAT in assessee’s own case in earlier years holding that the income of the assessee is to be determined as per Section 44BB, would hold good. We, therefore, respectfully following the decisions of ITAT in earlier years, direct the Assessing Officer to determine the income of the assessee by applying Section 44BB.
Levying interest under section 234B - HELD THAT:- As relying on own case we hold that the assessee was not liable to pay interest under Section 234B.
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2019 (1) TMI 1850 - ITAT HYDERABAD
Late fee u/s 234E in intimation u/s 200A - assessee contended that the provisions to include late fee u/s 234E in the intimation u/s 200A of the Act came into effect only through the Finance Act, 2015 w.e.f. 01/06/2015 and, hence, prior to 01/06/2015 such inclusion of late fee u/s 234E in the intimation u/s 200A is not permissible under the law - HELD THAT:- In the case under consideration, on perusal of record, we find that the TDS returns filed by the assessee for the relevant period i.e., FYs 2012-13 to 2014-15 and 1st Quarter i.e. 01/04/2015 to 31/05/2015 were prior to 01/06/2015. Therefore, respectfully following the said decision of M/S. TERRA INFRA DEVELOPMENT LIMITED [2018 (10) TMI 285 - ITAT HYDERABAD] we set aside the order of CIT(A) and direct the AO to delete the fees levied u/s 234E. With regard to TDS returns filed after 01/06/2015, the fees levied u/s 234E is applicable. Decided partly in favour of assessee.
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2019 (1) TMI 1849 - AUTHORITY FOR ADVANCE RULING, HARYANA
Scope of Advance Ruling - Taxability - rate of tax - Polypropylene Leno Bags - HELD THAT:- As per clause (c) of section 95 of the CGST/HGST Act, 2017, an “applicant” means any person registered or desirous of obtaining registration under this Act. Further, section 97(1) of the Acts ibid provides that an application for advance ruling may be submitted by an applicant desirous of obtaining an advance ruling under this Chapter by way of application submitted under rule 104 of the CGST/HGST Rules, 2017. However, as perused from the documents regarding registration of society, as enclosed with the application for advance ruling, it appears prima facie that Woven Fabric & Bags Manufacturers Association itself is not in the business of goods in respect of which advance ruling is sought and it has merely submitted a representation in the shape of advance ruling application on behalf of members of association.
Since, the association is not covered in the definition of applicant, as provided under clause (c) of section 95 of the CGST/HGST Act, 2017, it cannot seek advance ruling under section 97. Further, an opportunity of being heard has also been provided to the association on 24.12.2018 as required under second proviso to section 98(2), but since neither the applicant nor any authorized agent has appeared before the authority, the application can not be entertained.
The application dated 09.10.2018, submitted by M/s. Woven Fabric & Bags Manufacturers Association, for advance ruling is rejected.
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2019 (1) TMI 1848 - AUTHORITY FOR ADVANCE RULING, HARYANA
Rate of GST - Mineral mining rights in lieu of which Royalty is being paid - at what GST rate should it discharge its GST liability whether at the rate of 5% (Rate applicable on extracted raw material) or 18% (Residual category)? - Applicability of the future GST liability, out of excess GST paid on such Mineral Mining Rights at the rate of 18% in the past - HELD THAT:- The mining contract has been awarded to the applicant for right to use minerals namely “Stone along with associated minor minerals”. Hence, it is argued that the services received by the applicant from state government in respect of grant mining contract are classifiable under sub heading 997337 as covered under entry 257 of the annexure appended to the notification No. 11/2017-CT (Rate) dated 28.06.2017. Further, GST on the said supply of services is payable according to the entry at sr. no. 17 of the table in said notification - Since a perusal of classification of services of right to use natural resources classify under tariff 9973 and since description of services under serial No. 17 (i) to (vii) does not cover such services of right to use minerals, therefore, it would fall under the residual entry at serial number 17 (viii). Being so, the rate of tax applicable on such services, as provide therein, shall be the same rate of tax as applicable on supply of like goods involving transfer of title in goods.
Thus, it is evident that service charge by way of annual dead rent or royalty paid for services of granting right to use mineral would attract GST rate as applicable on supply of mineral which is being extracted through such mining - in view of entry at sr. no. 5 of the CGST notification no. 13/2017-CT (Rate) dated 28.06.2017, GST is payable on reverse charge basis by the recipient of above services i.e. the applicant in the present case.
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