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Showing 441 to 460 of 1346 Records
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2021 (1) TMI 907
LTCG - Disallowance of the claim of deduction u/s. 54F - construction of another residential house - non-furnishing of completion certificate from municipal authorities - assessee has failed to comply with the condition mandated under the provisions of Section 54F(4) for availing the benefit of deduction u/s. 54F(1), i.e., depositing of unutilized amount in the Capital Gains Accounts Scheme, on or before the due date of filing the Return of Income u/s. 139(1) of the Act - HELD THAT:- AO erred in coming to the conclusion that building construction was not completed before May, 2017 only on the basis of non-furnishing of completion certificate from municipal authorities. No doubt, completion certificate is one evidence for having completed construction of building, but it is not material evidence to draw adverse inference against assessee, when assessee has placed all other evidences which indicate completion of construction of building. The learned CIT(A) after considering relevant facts has rightly held that construction of building was completed within three years from the date of transfer of original asset and hence, we are inclined to uphold the findings of learned CIT(A) and reject grounds taken by the Revenue.
Investment of balance sale consideration in capital gain account deposit scheme on or before due date for furnishing of return of income - The law is very clear as per which if an assessee invests full consideration from sale of original asset for purchasing or constructing another residential house, then assessee is entitled for 100% exemption from capital gain tax. In case, where assessee has invested part sale consideration for purchase or construction of another residential house, then proportionate deduction is allowed commensurate with investment made in new asset. In this case, on perusal of details filed by assessee, we find that assessee has made investment of ₹ 1,20,00,000/- in capital gain account deposit scheme on or before due date of furnishing of return of income and said deposit account has been utilized for construction of building within three years from the date of transfer of original asset. Assessing Officer has erred in rejecting the claim of assessee on the ground that assessee ought to have invested balance consideration in capital gain account deposit scheme, more particularly, when assessee has claimed that she has paid tax on remaining sale consideration in accordance with law.
Facts with regard to amount of exemption claimed u/s. 54F of the Act and the amount of capital gain which was subjected to tax was not forthcoming from the orders of lower authorities. The assessee claims that it has claimed exemption u/s. 54F for ₹ 3,72,81,393/- and for balance capital gain she has paid tax, whereas Assessing Officer held that assessee has claimed exemption of ₹ 3,70,75,929/-. For the limited purpose of ascertaining facts with regard to computation of capital gain from sale of shares and amount of sale consideration invested in purchase/construction of new asset and amount of capital gain included in return and payment of taxes, we set aside the issue to file of Assessing Officer and direct him to verify facts in light of claim of assessee that she had paid tax for balance amount of capital gains - Appeal filed by Revenue is treated as allowed for statistical purposes.
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2021 (1) TMI 906
Addition on account of own money received on the basis of information received from the Central Excise Department - addition duty determined by Central Excise Department has been confirmed by the CESTAT, New Delhi - CIT-A deleted the addition - HELD THAT:- CIT(A) has duly considered the directions of the Coordinate Bench in the first round, the findings of the CESTAT as limited to a specified period and not pertaining to period under consideration, confirmation from Central Excise department that there is no material or evidence for undervaluation for period under consideration and the fact that the AO has merely relied on past years findings and in absence of any material or evidence and only on presumptions, conjectures and surmises has made the additions. The Revenue has failed to controvert the said findings of the ld CIT(A) before us. We therefore affirm the findings of the ld CIT(A) wherein he has rightly deleted the addition
Interest received on margin money at lower rate than it had to pay the borrowers - HELD THAT:- In the first round, the Tribunal has set-aside the matter to the file of the AO to examine the contention of the assessee that there is no fresh ICD placed during the period under consideration and where the same is found to be correct, allow the relief to the assessee following the Tribunal’s order for assessment year 1996-97 wherein similar addition was deleted.
During the set-aside proceedings, we find that the assessee has submitted the details which show that there is no increase in Unsecured Loans and Inter-Corporate Deposits during the period under consideration. Therefore, following the earlier decision, the matter is decided in favour of the assessee .
We find that the Tribunal decision for A.Y 1996-97 has since been confirmed by the Hon’ble Rajasthan[2017 (11) TMI 1673 - RAJASTHAN HIGH COURT]- In the result, the appeal of the Revenue is dismissed.
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2021 (1) TMI 905
Addition on account of alleged cash payment out of undisclosed income - Addition based on entries in the diary found in search - HELD THAT:- No question was asked from the assessee regarding these transactions as part of his statement recorded u/s 132(4) - During the assessment proceedings, the assessee was asked to explain the said entries and the assessee explained that the said entries were not in his handwriting and were made by his son, Shri Jitendra Yadav and an affidavit of Shri Jitendra Yadav was also filed where he has owned up the entries and the transactions so reflected therein as made by him relating to family transaction and expenses.
Revenue has not brought any evidence or finding disputing the contents of the said affidavit and the same thus remain unrebutted before us - where Shri Jitendra Yadav has owned up the entries and the transactions, the assessee has successfully discharged the onus cast on him and the presumption u/s 132(4A) cannot be drawn against him. In the result, there is no basis for impugned addition in the hands of the assessee and the same is hereby directed to be deleted. In the result, the appeal of the assessee is allowed.
Addition u/s 69A - Addition based on assessee's statement recorded u/s 132(4) - THAT:- Except at one place where savings have been written against the amount of ₹ 876,197, there is no mention of any particulars in terms of nature of transactions, parties with whom the transactions were undertaken, the date of such transactions, etc. Even the AO in the assessment order at para 5 of his order has stated that “it appears to be payment received in cash by the assessee”. Even there is no question which has been raised to the assessee as part of his statement recorded u/s 132(4) - where the AO himself is not clear about the nature of transaction which is the very foundation for determination of taxability of such transaction, the tax liability on such transaction cannot be fastened on the assessee. At the same time, the document so found reveal some work done by the assessee and given that the assessee is in the diary business, the net savings so determined can reasonably be related to the diary business already disclosed in the return of income in absence of any finding or corroboration relating to any other source of income. In the result, there is no basis for impugned addition in the hands of the assessee and the same is hereby directed to be deleted. In the result, the appeal of the assessee is allowed.
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2021 (1) TMI 904
Difference in the opening stock - CIT(A) allowing the appeal of the assessee on the ground that the discrepancies pointed out by the AO are only typographical errors - Rejection of books of accounts - estimation of income - GP rate determination - HELD THAT:- All the discrepancies pointed out were only typographical errors and do not have any impact in any manner whatsoever on the computation of total income of the assessee for the year under consideration.
There is mistake in reflecting the quantity figures in the tax audit report for A.Y.2011-12. However, right quantity details have been duly reflected together with the values thereon for the A.Y.2012-13 and there is absolutely no difference in value between the closing stock as on 31/03/2011 and opening stock as on 01/04/2011. Hence, there is absolutely no impact in the computation of profits as per books and computation of total income as per the Act for the year under consideration. Hence, there cannot be any grievance for the revenue at all in the instant case.
AO grossly erred in not crediting the export benefits in the recasted trading account prepared while working out the gross loss. Assessee had earned only gross profit during the year under consideration. It is a fact that assessee had made only export sales during the year and no local sales were made. Export benefits needs to be considered as trading receipt for the purpose of working out the gross profit of the assessee for the year under consideration. We find the GP disclosed by the assessee for the A.Y.2012-13 was 2.92% and GP of A.Y.2011-12 was 3.02%. Hence, there is absolutely not much variation in the gross profit disclosed by the assessee also
This is not a fit case for rejection of books of accounts u/s.145(3) of the Act by the ld. AO. We hold that the ld. CIT(A) had duly appreciated all the contentions of the assessee and rightly granted relief to the assessee in the instant case - Decided against revenue.
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2021 (1) TMI 903
Assessment of income - whether only commission income could be assessed in the hands of the assessee being an accommodation entry provider? - Additional ground raised - HELD THAT:- We are inclined to entertain the additional ground raised by the assessee in the present proceedings before us for all the assessment years under consideration. From the perusal of the various Tribunal and Hon’ble Jurisdictional High Court orders and more so in the case of certain sister concerns of the assessee which was also covered as an offshoot of the same search operation of JIK Industries Ltd., as in the case of assessee herein, we hold that only commission income @0.15% could be added in the hands of the assessee on the total accommodation entries provided by it on the total credits available in the bank account being the accommodation entries for the respective assessment years.
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2021 (1) TMI 902
Levy of late fee u/s 234E - delay in filing the above TDS statement - Fee for default in furnishing statements - statement processed u/s 200A - assessee contended that AO could levy fee u/s.234E of the Act while processing a return of TDS filed u/s.200(3) of the Act only by virtue of the provisions of Sec.200A(1)(c), (d) & (f) of the Act and those provisions came into force only from 1.6.2015 and therefore the authority issuing intimation u/s. 200A of the Act while processing return of TDS filed u/s.200(3) of the Act, could not levy fee u/s. 234E of the Act in respect of statement of TDS filed prior to 1.6.2015 - HELD THAT:- Keeping in mind that technicalities should not stand in the way of rendering substantive justice, as laid down by the Hon’ble Supreme Court in the case of Land Acquisition Vs. Mst. Katiji and Others [2016 (9) TMI 964 - KARNATAKA HIGH COURT] we are of the view that interest of justice would be met if the delay in filing appeals by the Assessee before CIT(A) is condoned and the issue with regard to levy of interest u/s.234-E of the Act be remanded to the CIT(A) for fresh consideration in accordance with the observations made in this order.
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2021 (1) TMI 901
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The Adjudicating Authority who was required to pass the order of admission or rejection of the application being satisfied about the completion of the application and proof of debt and default as mandated under Section 9(5) has failed to provide opportunity of rectifying the defect as noticed and allowing the applicant to bring it in conformity with the requirements of law. Dismissal of application as being non-maintainable for such technical defect is not warranted.
The impugned order is set aside and matter remanded back to the Adjudicating Authority to allow the Appellant/Applicant opportunity of rectifying the defect, if any, in the application and thereafter pass order of admission or rejection in regard to initiation of Corporate Insolvency Resolution Process on merit.
Appeal disposed off.
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2021 (1) TMI 900
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - time limitation - Whether there is an operational debt exceeding ₹ 1 lac as defined under Section 4 of the I&B Code? - HELD THAT:- In the application under Section 9 of the I&B Code, it is mentioned that appellant has supplied ready-mix concrete material to respondent for their various construction sites from 30/09/2012 to 20/10/2014 for which various invoices were issued from time to time as against the total outstanding payment of ₹ 02,29,94,288/-. The respondent (Corporate Debtor) has paid a sum of ₹ 02,09,30,948/- and balance of ₹ 20,63,340/- is outstanding as on 11/11/2015 - The respondent denied this fact and according to him as per the ledger, the outstanding amount is only ₹ 70,165/-. In support of this contention, the respondent filed ledger account of appellant maintained by the respondent for period of 01/04/2012 to 20/03/2018. (See Page 97-102 of Appeal Paper Book) The respondent has produced its statement of accounts which clearly shows that the total amount outstanding against the appellant is ₹ 70,165/- which is less than ₹ 1 lac. The appellant has not pointed out any error in the statement of account filed by the respondent.
Also, it is established that as on 31/03/2017, operational debt ₹ 19,89,130/- was due and payable and has not yet been paid - Hon’ble Supreme Court, in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] held that what is the scope of ascertaining the existence of a dispute at the time of admitting the Application, which is as follows:- “it is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the “existence” of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the “dispute” is not a patently feeble legal argument or an assertion of fact unsupported by evidence.”
Pre-existing dispute or not - HELD THAT:- As per the respondent, the appellant has delivered goods to Mayfair Corporate Park but erroneously sent invoices dated 15/07/2013 and 18/10/2013 bearing nos. 661 and 360 amounting to ₹ 05,33,120/- and 05,16,460/-. The respondent has no connection with Mayfair Corporate Park, therefore they have returned the invoices to the appellant. According to the appellant, the Mayfair Corporate Park is a construction project developed by Mayfair Spaces Ltd. (respondent) and thus they are associated entities. Therefore, the disputed invoices were rightly sent to the respondent - the appellant is relying on the ledger account maintained by the respondent. In this ledger account the amount of disputed invoices are not shown. Therefore, we hold that there is no dispute between the parties in regard to the aforesaid invoices. Thus, the finding of ld. Adjudicating Authority that there is a pre-existing dispute between the parties, cannot be agreed upon.
Time Limitation - HELD THAT:- The ledger account is a running account which shows that on 05/11/2015, the respondent has made payment of ₹ 12 lacs to appellant and from this date of acknowledgment within three years, that is on 15/01/2018 the application is filed. Thus, the application is within period of limitation. We agree with the finding of the Adjudicating Authority that the application is filed within the period of limitation.
As the respondent has failed to pay more than ₹ 1 lac and in absence of any pre-existing dispute and the record being complete, we hold that the application under section 9 of I&B Code preferred by the appellant was fit to be admitted - the impugned order is set aside and the case remitted to the Adjudicating Authority for admitting the application under Section 9 of I&B Code after notice to the Corporate Debtor to enable the Corporate Debtor to settle the matter prior to admission - appeal allowed by way of remand.
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2021 (1) TMI 899
Seeking extension of time period of Corporate Insolvency Resolution Process - seeking Audit and close the Accounts of the Corporate Debtor for the Financial Year 2015-2016 to 2019-2020 with the available records - avoiding examination of transactions covered under Sections 43, 45, 50 and 66 of I&B Code, 2016 - approval of eligibility of Resolution Applicant [Celestial Garden Owners Association] and participation of Resolution Applicant in voting of Resolution Plan - HELD THAT:- Considering Section 30(4) of the I&B Code, instead of going for liquidation of the Corporate Debtor, accepting the Resolution submitted by the Resolution Applicant is more viable. Section 31 of the IBC only bestowed the NCLT with the power to reject a Resolution Plan when the conditions in Section 30(2) have not been adequately met. Hence this Tribunal is only having a “hands off” role in the entire process of Corporate Insolvency Resolution Process - The proviso to the aforesaid Section mandates that Resolution Applicant does not have the voting right at the CoC while considering the Resolution Plan. The Resolution Applicant herein is the Home Buyers (52 Numbers) who are Financial Creditors with 3.91% voting rights in the CoC formed an association called ‘Celestial Garden Owners Association’.
This Tribunal extend the period of CIR Process for a further period of 90 days from 11.12.2020 with a direction to the Resolution Professional to meticulously adhere to the Rules and Regulations issued by IBBI in this regard from time to time - application allowed.
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2021 (1) TMI 898
Restoration of name of Company in the Register of Companies, maintained by the Registrar of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- Having gone through the report received on 18.12.2020 from the Registrar of Companies in the instant appeal as also all the annexures appended to the Appeal including the latest Balance Sheets and Financial Statements of the Company for the year ending 31st March 2019 and the Income Tax Return Acknowledgment for the Assessment Year 2019-2020 - Appellant sought leniency while ordering costs, for the reason that the Company is facing financial problems due to COVID-19 pandemic.
This Tribunal is of the opinion that it would be just and equitable to order restoration of the name of the Company in the Register of Companies - The Registrar of Companies, the respondent herein, is ordered to restore the original status of the Appellant Company, as if the name of the Company has not been struck off from the Register of Companies and take all consequential actions like change of company’s status from ‘Strike off’ to ‘Active’ (for e-filing) and to intimate the bankers about the restoration of the name of the company so as to defreeze its accounts - Application allowed.
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2021 (1) TMI 897
Seeking declaration that the letter issued by Collector of Usmanabad and the withdrawal of ₹ 76,75,000/- done by Respondent as illegal / non-est in law - seeking direction to Respondent (GST Department, Nashik) to forthwith refund the amount of ₹ 76,75000/- along with an interest @18% p.a. to the Bank Account of the Corporate Debtor - HELD THAT:- This bench is of the view that the liability towards Sales Tax due is not towards the Corporate Debtor but it is the due payable by M/s Sheelaatul Sugar Tech Private Limited. Even assuming that the Corporate Debtor is liable to pay that amount, the collection of due by the Respondent during CIRP is prohibited by moratorium under Section 14 of the Code. The Judgments referred by the Respondents is not relating to the issue involved in this Application and will not come to the aid of the Respondent.
The submission of the counsel for the Respondent that previously the Corporate Debtors agreed to pay the Sales Tax due of M/s Sheelaatul Sugar Tech Private Limited, from and out of the Sales Tax refund receivable by the Corporate Debtor is unenforceable during CIRP. Hence, the submission of the Counsel for the Respondent that the Corporate Debtor has received refund of ₹ 80,00,000/- from the sales tax department and from the said amount only this recovery is made cannot be accepted.
In view of the fact that the amount has been debited when the CIRP is in progress and the same is hit by the provisions of Section 14 of the Code. The Respondent is liable to repay the amount to the Corporate Debtor and accordingly the Respondent is directed to refund the amount of ₹ 76,75,000/- to the Applicant within 30 days of this order - application allowed.
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2021 (1) TMI 896
Addition u/s 69 - denial of exemption of long term capital gain - penny stock purchases - HELD THAT:- The present case is fully covered by the decision of Hon'ble Delhi Tribunal in Reeshu Goel [2019 (10) TMI 1387 - ITAT DELHI] wherein the same script from which the assessee had obtained Long Term Capital Gain has been held to be genuine. Therefore, following the same, we hold that the scrip of CCL International Ltd. is genuine and not a penny stock and paper entity. - Decided in favour of assessee.
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2021 (1) TMI 895
Classification of goods - threaded metal nuts which function same as standard nuts - whether merit classification under the Tariff item 7318 16 00 and not under Tariff item 8708 99 00? - Challenge to AAR decision - HELD THAT:- The impugned goods can clearly be construed as the ‘parts and accessories” of the vehicles falling under the Chapter Headings from 8701 to 8705 and will merit classification under the Chapter Heading 8708, which covers the parts and accessories of the vehicles. Our observation is primarily attributed to the fact that the impugned products are manufactured by the Respondent as per the specifications/requirements approved by the automobile manufacturer, which is illustrated by the descriptions contained in the sample Purchase Order, placed by M/s. Tata Motors Ltd. to the Respondent, which amongst other things, mentions the drawing document number and materials, approved by M/s. Tata Motors Ltd. The said drawing document, designed and made by the Respondent, also contains the part number of the automobile manufacturer, i.e., M/s. Tata Motors Ltd., rendering the said impugned product unique, in terms of its specifications, and materials used in the manufacture of the impugned goods which are identified by the material code of the impugned goods, and thereby lending support to our observation that the impugned goods have been manufactured at the behest of the automobile manufacturer as per the materials and design specifications of the motor vehicles to be manufactured by the automobile manufacturer, and the same is supplied solely or primarily to the said automobile manufacturer, which is also corroborated by the condition laid in the said sample Purchase Order placed by M/s. Tata Motors Ltd., which stipulates that Sale of goods mentioned in the Purchase Order to Spare Market is strictly prohibited.
Thus, it has been established beyond doubt that the impugned goods are suitable for use solely or primarily with articles of Chapter Heading Nos. 87.01 to 87.05, and therefore, applying the principle laid down by the Hon’ble Supreme Court in the case of G.S. AUTO INTERNATIONAL LTD. VERSUS COLLECTOR OF C. EX., CHANDIGARH [2003 (1) TMI 700 - SUPREME COURT], it is manifest that the impugned products will be construed as parts of motor vehicles falling under Chapter Heading 87.01 to 87.05, and will merit consideration under the Tariff Item 8708 9900.
The commercial identity of the impugned goods would he the parts of the motor vehicles as discussed above. Further, though there may be some ambiguities as far as the functions of these impugned goods are concerned, which are in the nature of fastening, thereby fomenting the temptation to classify these goods under Chapter Heading 73.18 by considering them as parts of general use, it is to be stated that doing so would not be legal as per the ratio laid down by Hon’ble Supreme Court in M/S CAST METAL INDUSTRIES (P) LTD. VERSUS COMMR. OF CENTRAL EXCISE-IV, KOLKATA [2015 (11) TMI 833 - SUPREME COURT], wherein it has been held by the Hon’ble Apex Court that the functional test for the classification of the goods is not the relevant test. Hence, the impugned goods will not be construed as ‘parts of general use’, and accordingly will not merit consideration under the Chapter Heading 73.18 - further, the impugned goods are customized and tailor made for the automobile customers as per the specification approved by the automobile customers. Thus, the contention of the Respondent that the impugned goods are supplied to the customers across various sectors, and thereby, the impugned goods are to be construed as parts of general use, and therefore, warranting classification of the impugned goods under the Chapter Heading 73.18, is devoid of any merit, and hence not tenable.
The Respondent have heavily relied on the Hon’ble Supreme Court Judgement in the case of COMMISSIONER OF CENTRAL EXCISE, DELHI-III VERSUS M/S. UNI PRODUCTS INDIA LTD [2020 (5) TMI 63 - SUPREME COURT]. In this regard, it is observed that the issue involved in the above- mentioned case was classification of ‘Car Mats made of textile material’, and the said decision in the said case was based on the facts that the ‘Car Mats made of textile material’ were specifically excluded from Chapter 87. Hence, in this regard, it is opined that the facts and circumstances of the case referred to by the Respondent is entirely different from those of the case at hand, which involves the classification of Metal Nuts and Metal Nuts are not categorically excluded under any HSN explanatory notes, the Section Notes or the Chapter Notes either, and therefore is clearly distinguishable.
The impugned goods, i.e., Metal Nuts with metrical threading, Metal Nuts without metrical threading, and Metal Spring Nuts, will be considered as parts of motor vehicles falling under Chapter Heading from 87.01 to 87.05, and accordingly will merit classification under the Tariff Item 8708 99 00, as purported by the Appellant - Advance Ruling decision set aside.
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2021 (1) TMI 894
Classification of goods - Shatamrut Chyavan - falling under TSH 2309 90 10 of Customs Tariff Act, 1975 as adopted to GST attracting ‘NIL” rate as per Sr. No. 102 of Notification No. 02/2017 - Central Tax (Rate), dated 28.06.2017 or can be treated as ‘waste of sugar manufacture, whether or not in the form of pellets under heading 2303’ attracting 5% of IGST as per Schedule I (Sr. No. 104) of Notification No. 01/2017 - Central Tax (Rate) dated 28.06.2017 or not? - chalenge to AAR decision.
Whether the classification of the impugned product, falling under TSH 2309 90 10 of the Customs Tariff Act, 1975, as adopted to the CGST Act, 2017, attracting ‘NIL’ as per the List of Exempted Goods in terms of SI. No 102 of Notification No. 02/2017 - Central Tax (Rate), dated 28.06.2017, is correct or not? - HELD THAT:- The impugned product is also advertised, marketed, and sold, as cattle feed, which when fed in certain doses with other fodder to the cattle, like cows, buffaloes, goat, etc., is purported to increase the production of milk from such cattle along with increasing their immunity against the diseases. Thus, it is evident that the impugned product is perceived as cattle food having the aforementioned specific uses - The explanatory notes clearly say that molasses is not covered under heading 2303 but under 1703. A larger part of the Appellant’s product consists of molasses and molasses itself are covered under heading 1703. Moreover, it is also made clear that molasses prepared as animal food fall in heading 2309. Therefore, it is clear that the product of the Appellant does not fall under Heading 2303 but falls under Heading 2309. The Appellant has, neither in the written submissions nor during the hearing, given any concrete reasons or grounds to support his contention that the product does not fall under Heading 2309 but under Heading 2303. As regards the Appellant’s contention that the impugned product is not fed to the cattle in isolation but the same is fed by mixing with the other fodders in fixed prescribed dosage, and thereby, not deserving to be qualified as cattle feed, it is opined that the said fact about the impugned product would not have any bearing, whatsoever, on the status of the said impugned product which remains the “compounded animal feed” having specific use in animal feeding.
CBIC Circular No. 80/54/2018- GST, dated 31.12.2018, issued on the subject of the clarification of the GST rates and classification of goods, which stipulates that while deciding the classification of product claimed as animal feed supplements, it may be necessary to ensure that the said animal feed supplements are ordinarily or commonly known to the trade as products for a specific use in animal feeding. HS Code 2309 would cover only such products, which in the form supplied, are capable of specific use as food supplement for animal and not capable of any general use. As it has been established that the impugned product is an animal feed having specific use, viz.- increasing the milk production of the cattle and increasing the immunity of the cattle to fight diseases, and the said impugned product is also known in the market as the cattle feed supplement only, therefore, the said impugned product would be classified as animal feed supplement, and accordingly would merit classification under the Chapter Heading 2309 and under the Tariff Item 2309 90 10, and would not attract any GST in terms of Si. No. 102 of the Notification No. 2/2017-C.T. (Rate), dated 28.06.2017.
Whether the impugned product can be considered as ‘waste of sugar manufacturing’ as being purported by the Appellant, and accordingly be classified under the Chapter Heading 2303 - HELD THAT:- The question does not fall within the purview of Section 97 (2) of the CGST Act. 2017. The question is not in relation to supply of goods or services or both, being undertaken or proposed to be undertaken by the Appellant. The MAAR cannot decide whether a specific product can be said to be a waste of sugar manufacture as the said question is not within the scope of Section 97 of the CGST Act. 2017. Also, the Appellant has not given any rebuttal of the finding of the MAAR that the said question does not fall under Section 97 of the CGST Act, 2017.
The ruling of AAR upheld.
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2021 (1) TMI 893
Fraudulent CENVAT credit - section 174 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Direction that that till the next date Shri. Ashok G. Rajani and Shri. Amrit Rajani shall not be taken into custody on the basis of the show cause-cum-demand notice dated 30.12.2020 as well as in connection with the ongoing investigation under the CGST Act subject to compliance with the above condition.
Status-quo order passed yesterday would stand modified accordingly - Stand over to 04.02.2021.
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2021 (1) TMI 892
Maintainability of petition - alternative remedy of appeal - Direction to the Respondents to grant refund - petitioner submits that though there is a remedy for filing further appeal under the CGST Act, however, since the Goods and Services Tax Appellate Tribunal is presently not constituted, he has no other option but to approach this Court - HELD THAT:- It is noticed that the prayer sought in the present petition does not seek any relief in respect of the order passed by the first Appellate Authority and in absence of any such challenge, we are unable to understand as to how the present petition would be maintainable.
At this stage, learned counsel for the Petitioner states that though he has urged grounds to challenge the order passed by the first Appellate Authority, however, since there is no specific relief sought to set aside the afore-noted order, he would like to amend the present petition by adding an appropriate relief in that regard. He requests for an adjournment to do the needful.
At his request, re-notify on 9th March, 2021.
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2021 (1) TMI 891
Service of summons - calling upon to personally remain present before the concerned authority on 19th January 2021 - Section 70 of the C.G.S.T. Act, 2017 - HELD THAT:- The Form DRC-03 may be filled up provided the assessee decides to voluntarily make any payment. Even if there is any lapse on the part of the assessee and the department wants to recover a particular amount, it cannot exert pressure or administer threats for the purpose of filling up of the Form DRC-03.
Let Notice be issued to the respondents, returnable on 25th January 2021. The writ applicant No.2 shall appear in person before the authority concerned in response to the summons received by him under Section 70 of the Act. However, we make it clear that no coercive measures or steps shall be taken by the concerned authority against the writ applicant No.2. As serious allegations of threats, duress and pressure have been levelled against the team of officers that visited the premises of the writ applicants, we direct the respondents to file their reply by the next date of hearing without fail.
On the returnable date, notify this matter on top of the Board.
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2021 (1) TMI 890
Income tax on the compensation payable to the claimants - As submitted that in spite of deduction of income tax from source as the deceased was salaried person, the law mandates further deduction of income tax on the total amount of compensation also - HELD THAT:- It is well established principle of law that while awarding compensation, amount of income tax, if payable, has to be deducted while assessing the loss of dependency.
In case the income of the victim is only from "salary", the presumption would be that the employer under Section 192(1) has deducted the tax at source from the employee's salary. In case if an objection is raised by any party, the objector is required to prove by producing evidence such as LPC to suggest that the employer failed to deduct the TDS from the salary of the employee.
There can be cases where the victim is not a salaried person i.e. his income is from sources other than salary, and the annual income falls within taxable range, in such cases, if any objection as to deduction of tax is made by a party then the claimant is required to prove that the victim has already paid income tax and no further tax has to be deducted from the income.
In the present case, the learned counsel for the appellant did not dispute that there was no evidence on record to show that no income tax was deducted at source while paying salary to the deceased; but, her contention was that the amount of income tax was required to be deducted again from the total amount of compensation payable. This is wholly misconceived plea inasmuch as once the income tax is deducted at source while making payment of the salary to the deceased employee, no law requires deduction of the income tax again on the amount of compensation.
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2021 (1) TMI 889
Disallowance on account of advances written off - Tribunal confirming the decision of CIT(A) deleting the disallowance - HELD THAT:- Addition on account of advances written off indisputably an amount of advance was given in the ordinary course of business to persons like fishermen etc. for the procurement of raw material and labour work. No error in the decision of ld. CIT(A) in allowing the claim of advances written off to the which were given in the ordinary course of business by the assessee. Accordingly, we do not find any merit in the appeal of the revenue
Disallowance on account of claim loss of stock by obsolescence - no quantitative details in respect of obsolescent stock was available with the assessee - Tribunal confirming the decision of CIT(A) deleting the disallowance - HELD THAT:- It is brought to our notice that assessee has been consistently followed accounting Standard2 for valuation of closing of stock at cost or net realizable value whichever is lower in accordance with the accounting standard referred in section 211(3E) of the Company Act, 1956. The detail of absolescene of stock along with detailed working were submitted before the assessing officer and CIT(A) at the time of hearing. The company has valued the stock at net realizable value on the basis of evidence available on the date of signing of the accounts and the actual price was taken for computing the net realizable sale value - In view of the aforesaid findings of fact recorded by the Tribunal, we see no good reason to entertain this appeal.
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2021 (1) TMI 888
Addition u/s 68 - Tribunal upholding the order of the CIT(A) deleting the addition - HELD THAT:- CIT(A) has recorded a finding of fact that nothing has been retained by the assessee, which has been considered as unexplained cash credit. The assessee has explained fund flow i.e. demonstrating transactions were back to back, and were in the nature of accommodation entries.
CIT(A) has held that alleged ₹ 1,57,10,000/ was not earned from any business activity but from other sources of income. This was to be assessed under the head "income from other sources". Contrary to the above factual finding of the ld. CIT(A), neither Revenue has filed any evidence, nor assessee has filed any paper book. It has not been brought to our notice, as to how these analysis are contrary to the record. Therefore, we are of the view that the ld. CIT(A) has made a lucid analysis of the record available before her, and appreciated the controversy in right perspective. We do not find any merit in the ground of appeal raised by the Revenue challenging deletion of addition - Decided against revenue.
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