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Showing 401 to 420 of 1125 Records
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2020 (11) TMI 725
CENVAT Credit - LAM ( Low Ash Metallurgical) COKE - fake invoices without supply of goods - time limitation - main basis of denying the Cenvat credit to the appellants are the two letters received by the department, one from the Municipal Commissioner and the other from the Postal authorities - HELD THAT:- The best evidence would have been for departmental officers to physically visit the place and draw a panchnama after making enquiries from the locality. No such documentary evidence is there on record - The department has not denied that the dealer, M/s Dankuni Steel Ltd was registered with the jurisdictional Central Excise formation. As per extant departmental instructions the premises were required to be physically inspected within 5 days of granting registration. It has to be presumed that these instructions were duly followed. In that case it has to be assumed that during the relevant period the dealer was operating from the registered premises.
The dealer has clarified that their head office was at Bentinck Street and this was duly indicated in all the disputed invoices. The department has not denied the existence of the dealer at the Bentinck Street address - Hence, the material available on record can at most arouse suspicion, but suspicion, however strong, cannot replace proof/evidence.
The department has made no enquiries to ascertain whether the disputed quantity of LAM Coke had been received in the appellants’ factory or not. A proper stock-taking would have revealed the true picture. But no such evidence is there. Hence, it has to be accepted that the disputed quantity of LAM Coke was actually received in the factory - The department did not also make any enquiry to determine whether the quantity of finished goods manufactured by the appellants was consistent with the consumption of the disputed quantity of inputs.
The appellants had provided the Railway Receipts (RR’s) under cover of which the inputs had come. The disputed invoices have crossreferences of the corresponding RR’s. The department made no efforts to verify the genuineness of the RR’s - Hence, it cannot be said that the invoices received in the appellants’ factory were not accompanied by duty paid goods.
It is also established law now that duty paid goods can be consigned directly to a buyer by the manufacturer/supplier without the goods first going to the dealer’s premises - Once it is held that the disputed quantity of goods have been duly received in the appellants factory, the cenvat credit on input service of transportation cannot also be denied.
The department has not been able to make out a case for denial of Cenvat Credit - Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 724
Duplication of appeal filed - against one impugned order two appeals were filed - HELD THAT:- Only one appeal needs to be filed against impugned order therefore, the second appeal No. E/12975/2019 and Cross Objection No. E/CO/10114/2020 are dismissed as infructuous.
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2020 (11) TMI 723
Refund claim - rejection of refund claim as being time-barred by computing the period upto the date of second presentation before the Tiruchirapalli Commissionerate - HELD THAT:- The refund claim has been first presented on 31-3-2010, the refund sanctioning authority has erred in computing the time-limit reckoning 16-8-2011 as the date of filing refund claim. The time-limit has to be computed from the date of clearance of the goods to the date of first presentation of the claim. The refund would be then well within time. The rejection of refund claim on the ground of being time-barred is set aside.
The refund sanctioning authority is directed to look into the merits of the claim. The matter is remanded back to the refund sanctioning authority, who is directed to consider the claim on merits - Appeal allowed by way of remand.
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2020 (11) TMI 722
Maintainability of petition - availability of alternate remedy of appeal - Redetermination of tax liability of petitioner - HELD THAT:- There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute.
This Court does not express any view on the correctness or otherwise on the merits of the controversy involved in the matter- Petition dismissed.
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2020 (11) TMI 721
Reversal of ITC - reopening of assessment - Payment of the differential amount of tax due and penalty - HELD THAT:- Similar issue decided in the case of M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT] where it was held that In the instant case, there is no challenge to the statutory provisions and the complaint of all the dealer is largely on the procedure adopted by the respective Assessing Officers. The Principal Secretary and Commissioner of Commercial Taxes was conscious of the problems faced by the dealers as complaints were received which had lead to issuance of a circular as early as on 01.04.2015.
The concerned assessing officer shall issue fresh show cause notice with all required details in respect of levy of tax for mismatch invoices and the Petitioner shall be entitled to submit its explanation within the prescribed time - impugned order set aside - petition allowed.
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2020 (11) TMI 720
Dishonor of Cheque - offence under Section 138 of the Negotiable Instruments Act - direction for suspension of sentence imposed on him by the trial court - HELD THAT:- When it is noted the appellate court is justified in directing the petitioner/accused to deposit 20% of the compensation amount imposed by the trial court pending appeal as provided under Section 148 of the Negotiable Instruments Act and thereby ordering suspension of the sentence imposed on the petitioner and when the order passed by the appellate court is in conformity with the provisions of Section 148 of the Negotiable Instruments Act read with 389(1) of Cr.PC, I do not find any infirmity or error in the abovesaid condition imposed by the appellate court directing the petitioner to deposit 20% of the compensation amount imposed on him by the trial court.
There is no merit in the Criminal original petition - Petition dismissed.
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2020 (11) TMI 719
Permission for withdrawal of application - Attachment order - HELD THAT:- In the reference 4th cited, hearing notice was given to M/s. Savitri Ashirvaad Buildtech Limited. In the reference 5th cited, M/s. Savitri Ashirvaad Buildtech Limited, have informed through mail, that the Venture is over and they don’t need the ruling. Hence the dealer has withdrawn the advance Ruling Application.
The application for advance ruling filed by the applicant is dismissed as withdrawn at the behest of the applicant.
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2020 (11) TMI 718
Exigibility of GST - supply of goods or not - sale of applicant’s share (40%) of residential flats - revenue sharing basis - HELD THAT:- Schedule Il to the CGST Act 2017 specifies certain activities / transactions to be treated as supply of goods / services. Clause 5(b) of the said schedule stipulates that “Construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly” shall be treated as supply of service except where the entire consideration has been received after issuance of completion certificate, where required, by the competent authority or after its first occupation whichever is earlier.
In the instant case the applicant stated that that their share of residential flats have been handed over by the developer after the issuance of completion / occupation certificate dated 26.08.2019 and also clause 1.7 of the Area Sharing Agreement restricts the right of the applicant to execute any sale agreement or any conveyancing deeds till the issuance Of completion certificate and taking over of their share of units / flats. Thus the sale of said flats is not exigible to GST, if and only if they are sold after issuance of Completion / Occupancy certificate, in which case the said transaction is to be treated neither as supply of goods nor supply of services, in terms of clause 5 of Schedule III
It is an admitted fact that the developer had the sole and exclusive right of marketing the entire project. The applicant is silent about the fact that whether the developer had executed any sale deeds on behalf of the applicant in respect of the applicant’s share of units/flats. Thus if the applicant themselves or the developer on behalf of the applicant have sold the applicant’s share of units/flats prior to issuance of completion certificate, then the transactions amount to supply of “Works Contract Service” are liable to GST - The time of supply in the instant case would be the time at which the constructed flats are handed over by the developer to the applicant. In the instant case the applicant claims / contends that they have received their share of units/flats after the issuance of Completion [Occupancy certificate by Bruhat Bengaluru Mahanagar Palike for 74 units.
Thus, the amounts received by the applicant, either by himself or through his agents, towards sale of their share of flats are not exigible to GST, if and only if the entire consideration related to such sale of flats is received after the issuance of Completion Certificate dated 26.08.2019, as the said activities are treated neither supply of goods nor supply of service in terms of schedule III of the CGST Act 2017 subject to Clause 5(b) of the Schedule-II of the CGST Act, 2017.
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2020 (11) TMI 717
Profiteering - Section 171 of CGST Act and Chapter XV of the CGST Rules, specifically Rules 126, 127 and 133 of CGST Rules - HELD THAT:- Petitioner is directed to deposit the principal profiteered amount i.e. ₹ 58, 43, 170/- with Central Consumer Welfare Fund within three months. The interest amount as well as the penalty proceedings and further investigation with regard to other outlets are stayed till further orders.
List the matter on 07th December, 2020.
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2020 (11) TMI 716
Validity of Summon Order - seeking direction to Petitioner to tender his statement and adduce evidence through video conferencing, in relation to a summon issued under Section 70 of the Central Goods and Services Tax Act, 2017 - whether the current COVID-19 pandemic situation can ipso facto be cited as a ground to insist that the tendering of statement be done through video conferencing? - HELD THAT:- Concededly, the investigation is ongoing and the Respondent wants to unearth the role of the Petitioner in the alleged tax evasion by the Company. The previous conduct of the Petitioner, at the stage of inspection when the officers of the Respondents were visiting Bengaluru, demonstrates that the Petitioner consistently avoided recording his statement on one pretext or the other. Thus, having regard to the past noncooperative conduct of the Petitioner, and the mere apprehension or fear of the Petitioner of contracting the COVID-19 infection, we would not like to interdict or interfere in the investigation process. No doubt, due to the recent outbreak of COVID-19, the Courts of this country including the Supreme Court as well as this Court have adopted measures to reduce physical presence of the lawyers and litigants, and several social-distancing guidelines have been issued by several health authorities as well as the Government of India. In this process, the use of the modern technologies has been put to use for dispensation of justice by the Courts. However, that is not the situation before us.
We are concerned with the investigation being carried out by an investigating agency. The evidence being recorded at this stage would impact the entire investigation of tax evasion. The questioning during investigation has to be on the basis of evaluation and examination of documents. During the process of interrogation, the investigating agency may come across certain relevant facts and discoveries which are germane and crucial for concluding the investigation. Judicial interference at this threshold stage, in such matters relating to investigation, has to be exercised with circumspection. The concept of balance of convenience, therefore, cannot be tilted in favour of the Petitioner to be allowed to appear through video conferencing, merely because travelling from Bengaluru to New Delhi would be a risk factor for the Petitioner of contracting COVID-19. This mere apprehension of contracting COVID-19 does not persuade us to grant the relief sought for by the present Petitioner.
Petition dismissed.
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2020 (11) TMI 715
Profiteering - levy of interest at the rate of 18% from the date from which the excess amount was collected by the Petitioner from the buyers till the date of its payment - vires of Rule 133(3)(b) of the CGST/HGST Rules - HELD THAT:- Keeping in view the orders passed by this Court in Phillips India Limited Vs. Union of India & Ors. [W.P.(C) No.3737/2020] [2020 (6) TMI 626 - DELHI HIGH COURT] as well as M/s Samsonite South Asia Pvt. Ltd. Vs. Union of India & Ors. [W.P.(C) No.4131/2020] [2020 (10) TMI 1031 - DELHI HIGH COURT] and M/s Patanjali Ayurved Ltd. Vs. Union of India & Ors. [W.P.(C) No.4375/2020] [2020 (7) TMI 614 - DELHI HIGH COURT], the interest amount directed to be paid by the petitioner as well as the penalty proceedings are stayed till further orders.
List on 07th December, 2020.
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2020 (11) TMI 714
Maintainability of appeal - ex parte order of assessment - principles of natural justice - HELD THAT:- It would be only more appropriate, as is also so submitted by Shri Gautam Kumar Kejriwal, learned counsel for the petitioner, that the petitioner approaches the appellate authority highlighting the issues raised before this Court, as also pointing out the errors apparent on the face of record, if any, enabling the authority to reconsider the petitioner’s case based on the material so placed. Shri Pawan Kumar, learned counsel appearing for the State/authority, states that petitioner failed to exercise his statutory right as envisaged under Section 62 of the Act, leaving no option with the authority to pass the order.
On merits, we do not express any opinion and leave it to the wisdom of the appellate authority to consider all these issues, to the attending facts.
The appellate authority shall consider all aspects and take a decision, preferably within a period of two months thereafter - Petition disposed off.
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2020 (11) TMI 713
Principles of Natural Justice - validity of Garnishee Notice - whether the Garnishee Notice issued by the 1st Respondent is in tune with the principles of natural justice? - HELD THAT:- As the Garnishee Notice came to be passed without hearing, the Writ Petition is allowed setting aside the impugned Garnishee Notice, issued by the 1st Respondent, however, leaving it open to the authorities to proceed in accordance with law.
Petition closed.
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2020 (11) TMI 712
Imposition of penalty under Section 122 of CGST Act - case of the Petitioner is that, he has paid total GST liability of ₹ 4,69,92,664/- for the period of February 2018 to December 2018 and filed GST DRC-03, and having accepted the GST liability, interest and late fees, as per the provisions of CGST Act, imposing penalty of ₹ 4,27,19,192/- under Section 122(1) of CGST Act, AP GST Act, is illegal - HELD THAT:- It is to be noted that, Section 122 of CGST Act which deals with “Penalty for certain offences” states that, “wherever there is a violation, a taxable person shall be liable to pay a penalty of ten thousand rupees or an amount equivalent to the tax evaded or the tax not deducted under section 51 or short deducted or deducted but not paid to the Government or tax not collected under section 52 or short collected or collected but not paid to the Government or input tax credit availed of or passed on or distributed irregularly, or the refund claimed fraudulently, whichever is higher”.
It is well settled that, as per the procedure contemplated under Section 73 and 74 of CGST Act, a show-cause notice has to be necessarily issued and same has to be adjudicated following due process of law. Though, the learned counsel for the Petitioner pleaded that, such a notice was never issued, but no effective reply came to be made in the counter denying the said pleading.
In fact, a perusal of the material on record show that, a notice under Form GSTR-3A came to be issued, on 15.01.2019, for filing of GSTR-3B returns for the period from February to December 2018 under Section 46 of CGST Act, which was received, on 15.01.2019, itself. Without waiting for statutory period stipulated under the Act, assessment Order came to be issued in Form GSTR ASMT-13 under Section 62 of CGST Act, on 29.01.2019, directing the Petitioner to pay huge sum of money including penalty.
The order came to be passed without following the principles of natural justice, the Writ Petition is allowed setting aside the impugned Order - the matter is remanded back to the authorities concerned to deal with the same afresh, in accordance with law, after giving an opportunity of hearing to the Petitioner - Petition allowed by way of remand.
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2020 (11) TMI 711
Validity of SCN - Cancellation of GST registration - SCN was served upon the petitioner asking him to show cause as to why his registration would not be cancelled as the petitioner/taxpayer was found non-functioning/not existing at the principal place of business - It is the contention of the petitioner that the show cause notice was vague - HELD THAT:- It is true that no hearing was given to the petitioner. It is also true that the order of cancellation is not a speaking one. However, the petitioner received such an order on February 14, 2020 and he has moved this Court in August, 2020.
There are no reason to invoke a high prerogative writ and allow the prayer of the petitioner to set aside the order of cancellation in view of the provisions of Sections 30 and 107. Section 30 of the GST Act provides that a party aggrieved by an order of cancellation may apply for revocation of cancellation. The apprehension of the petitioner that the entire claim would have to be deposited if the petitioner takes recourse to Section 30, is refuted by Mr. Majumdar - this Court does not think it fit to set aside the order of cancellation of registration at such a belated stage, specially as the period of limitation has been extended by the authorities. The petitioner shall exhaust the available remedy under the statute.
Application disposed off.
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2020 (11) TMI 710
Levy of interest - belated filing of GST returns - Section 50 of the CGST Act - HELD THAT:- On perusal of the reply dated 21.2.2020 to the notice dated 7.2.2020, it is suffice to direct respondent No.1 to consider the reply and all the relevant facts as narrated therein, affording opportunity of hearing to the petitioner. In case, the 1st respondent is of the opinion that compliance has not been made by the petitioner properly, appropriate reasoned order may be passed affording opportunity to the petitioner, within a period of one month from the date of communication of this order. Till then, adverse order, if any passed against the petitioner, shall not be given effect to.
Petition disposed off.
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2020 (11) TMI 709
Disallowance u/s 14A - Tribunal deleting the disallowance as there was no earning of exempt income during the assessment year - Whether no exempt income received by assessee? - non recording of satisfaction - amendment to Rule 8D brought in Finance Act, 2016 with regard to the quantum of expenditure that could be disallowed - HELD THAT:- Identical substantial question of law was considered by this Court in the decision in the case of CIT Vs. Celebrity Fashion Ltd. [2020 (9) TMI 1022 - MADRAS HIGH COURT] to which, one of us (TSSJ) was a party, wherein it was held that in terms of Section 14A of the Act, only expenditure, which was proved to be incurred in relation to earning of tax free income, could be disallowed and such provision could not be extended to disallow expenditure, which was assumed to have been incurred for earning tax free income. It was further held that to apply provisions of Section 14A of the Act, Assessing Officer should have recorded a finding as to how Sub-Section (1) of Section 14A of the Act would stand attracted and in absence of any such finding, the disallowance made was not justifiable.
In the present case there is no opinion recorded by the Assessing Officer as to how Sub- Section (1) of Section 14A of the Act would stand attracted. - Decided in favour of assessee.
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2020 (11) TMI 708
Deduction u/s 35(2)(AB) - expenditure outside the in-house R & D facility - Whether AO has rightly held that clinical trial expenditure is not eligible for weighted R & D deduction u/s 35(2)(AB) and it will be eligible for weighted deduction only if the expenditure is incurred on an in-house R & D facility? - HELD THAT:- Tribunal has allowed the deduction in respect of expenses incurred by the assessee on scientific research on in-house research and development facility by placing reliance on the decision of the Gujarat High Court. It is pertinent to mention here that against the aforesaid decision, the revenue preferred special leave petition and CADILA HEALTHCARE LTD. [2015 (11) TMI 496 - SUPREME COURT] has remitted the matter to the High Court for consideration afresh along with other issues.
Since the Tribunal has neither recorded any reasons nor has recorded any findings on the claim of the assessee, we are left with no option but to quash the order of the Tribunal dated 16.02.2016 insofar as it pertains to claim of deduction of assessee u/s 35(2)(AB) of the Act and remit the matter to the Tribunal for decision afresh in accordance with law after affording an opportunity of hearing to the parties. Therefore, it is not necessary for us to answer the substantial question of law.
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2020 (11) TMI 707
Assessment of income - inclusion of the share income of the minor from the firm which had closed its accounting year on 10.8.75 in the assessment of the assessee for the assessment year 1976-77 - Whether the amended provision which had come into effect from 1.10.75 will apply to an income which had accrued on 10.8.75 for the assessment to be made for the assessment year 1976-77? - HELD THAT:- As relying on SRI LOKNATH GOENKA, SMT. NARMADA DEVI [2019 (8) TMI 458 - PATNA HIGH COURT] Appellate Tribunal was not correct, in law, in upholding the inclusion of the share income of the minor from the firm M/s. Om Prakash & Co. for it accrued on 10.08.1975, in the assessment year 1976-77, and the amendment which came into effect only on 1.10.1975 was to apply only prospectively and not retrospectively.
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2020 (11) TMI 706
Benefit of Vivad Se Vishwas Scheme ('VVS Scheme') - Substantial Questions of Law framed for consideration on account of certain subsequent developments - HELD THAT:- As assessee has already availed the benefit under the Act, no useful purpose would be served in keeping this appeal pending. At the same time, safeguarding the interest of the assessee in the event the order to be passed by the Department under the Act is not in favour of the assessee. Accordingly, the Tax Case Appeal stands disposed of on the ground that the assessee has already filed a declaration and the Department shall process the application at the earliest in accordance with the said Act and communicate the decision to the assessee at the earliest. As observed, the assessee is given liberty to restore this appeal in the event the ultimate decision to be taken on the declaration filed by the assessee under Section 4 of the said Act is not in favour of the assessee. If such a prayer is made, the Registry shall entertain the prayer without insisting upon any application to be filed for condonation of delay in restoration of the appeal.
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9911796707
