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Showing 141 to 160 of 839 Records
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2020 (6) TMI 700
Levy of penalty u/s 234E - Rectification u/s 154 - creating charge for levy of fee for certain defaults in filing statements - fee levied even for the period prior to coming into operation of Section 200A - debatable issue - apparent mistake in the order of the AO levying late fee under Section 234E - HELD THAT:- We found that the assessee received the order on 19.04.2014 for the A.Y. 2014-15 and has filed rectification petition with the CPC-TDS for correction of statements which is not disputed, and the same was processed and order under Section 154 of the Act was passed by CPC TDS on 13.03.2019. Aggrieved by the order, the Assessee has filed an appeal under Section 246 of the Act with the CIT (Appeals).Considering the provisions of law and the facts of the case, we found the assessee has challenged the order under Section 154 of the Act, which is permissible under the Law.
As decided in case of Fatheraj Singhvi [2016 (9) TMI 964 - KARNATAKA HIGH COURT] when the amendment made under Section 200A of the Act which has come into effect on 1.6.2015 is held to be having prospective effect, no computation of fee for the demand or the intimation for the fee under Section 234E could be made for the TDS deducted for the respective assessment year prior to 1.6.2015. Hence, the demand notices under Section 200A by the respondent-authority for intimation for payment of fee under Section 234E can be said as without any authority of law and the same are quashed and set aside to that extent - Decided in favour of the assessee.
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2020 (6) TMI 699
Determination of ALP in respect of international transaction of rendering SWD services - Selection of comparable - HELD THAT:- Assessee provides support services to its group entities. The services provided by the Assessee are Call Centre, Shared services and Offshore development Centre (testing and support) thus companies functionally dissimilar with that of assessee need to deselected from final list.
Non-grant of deduction under section 10A on the income determined as per Mutual Agreement between Competent Authorities of India and USA - HELD THAT:- In the present case the conditions under which the dispute was resolved under MAP, was that the Assessee had to increase its taxable income and the sum agreed was to be subsequently invoiced and realized and thereby there was inflow of foreign exchange in India. Such features do not exist when the adjustment to ALP is suggested by a TPO which is subsequently incorporated in an order of assessment by the AO.
Pune Bench of the ITAT had an occasion to deal with an identical question in the context of determination of ALP under the Advance Pricing Arrangement [APA] in the case of Dar Al Handasah Consultants (Shair & Partners) India Private Limited [2019 (12) TMI 153 - ITAT PUNE] and took the view that deduction u/s. 10A of the Act on additional income offered as per APA would be eligible to claim deduction u/s. 10AA.
The proviso to section 92CA(4) of the Act will apply only to adjustment to transfer pricing made by the AO which is enumerated in Sl.No.(ii) above and not to any other modes of determination of ALP. The decision of the Pune Bench of ITAT in the case of Dar Al Handasah Consultants (Shair & Partners) India Private Limited (supra) will be clearly applicable to the facts of the present case.
Whether non-receipt of foreign exchange within the period required u/s. 10A of the Act would be a bar to allow the deduction in AY 2007-08? - As already observed that similar to provisions of section 92CC of the Act, the provisions of the DTAA r.w.s. 90(2) of the Act provide to the contrary in matters where issues are settled under the MAP. Following the decision of the Tribunal referred to above, we hold that the assessee should be allowed the benefit of deduction u/s. 10A of the Act in respect of the amount settled under the MAP for the AY 2007-08. Accordingly, the relevant grounds of appeal are allowed.
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2020 (6) TMI 698
TP Adjustment - Adjustment of AMP expenses and restricting the addition for ticketing services and tours and travel services packages - HELD THAT:- Hon’ble Delhi High Court in the case of Jubilant Foodwork Pvt. Ltd. [2014 (8) TMI 353 - DELHI HIGH COURT] has held that the expenditure incurred by the assessee on advertisement expenses is revenue in nature since no permanent character or advantage is achieved via the same and such expenses for advertising consumer products generally are a part of the process of profit earning and not in the nature of capital outlay. Similar view has been taken by the Hon’ble Delhi High Court in the case of CIT vs. Monto Motors Ltd. [2011 (12) TMI 50 - DELHI HIGH COURT].
In view of the above discussion and in view of the detailed order passed by the CIT(A) on this issue and considering the fact that the Revenue in assessee’s own case for AYs 2010-11 onwards has not considered such AMP expenses as international transaction, therefore, we do not find any infirmity in the order of the CIT(A) in deleting the addition on account of adjustment of AMP expenses as computed u/s 92CA(3).
Short charge to MMT US for ticketing charges and tours and travel package services - HELD THAT:- The assessee had also given the break-up on the basis of the finding given by the CIT(A) in A.Y. 2005-06. Nothing substantial was brought to our notice either by the Ld. AR or by the ld. DR against the finding given by the ld.CIT(A) on this issue. We, therefore, uphold the same and the ground raised by the assessee and the Revenue on this issue are dismissed. Accordingly, ground of appeal Nos.1-7 filed by the Revenue and ground No.1 raised by the assessee are dismissed.
Addition u/s 14A r.w.r. 8D - HELD THAT:- It is the submission the assessee that he has not received any exempt income during the year and, therefore, he has no objection if the same is restored to the file of the AO for verification of the issue in the light of the decision in the case of Cheminvest Ltd [2015 (9) TMI 238 - DELHI HIGH COURT] wherein it has been held that in absence of any exempt income, no disallowance u/s 14A can be made. Since the issue requires verification at the level of AO, therefore, we deem it proper to restore this issue to the file of the AO with a direction to find out as to whether the assessee has, in fact, received any exempt income and decide the issue
TDS u/s 195 - Non-deduction of TDS on payment of gateway charges paid to HDFC and ICICI Bank - HELD THAT:- The assessee has the option to obtain a No-deduction Certificate from the AO which he has not done in the instant case. It is the submission of the ld. Counsel for the assessee that identical issue had come up before the Tribunal in assessee’s own case for A.Y. 2009-10 and the Tribunal [2017 (9) TMI 1775 - ITAT DELHI] has decided the issue pertaining to non-deduction of taxes on payment gateway charges in favour of the assessee with certain directions/observations. Further, the appeal filed by the Revenue was dismissed by the Hon’ble High Court - we deem it proper to restore this issue to the file of the AO with a direction to decide the issue afresh in the light of the decision of the Tribunal in assessee’s own case for A.Y. 2009-10 and decide the issue as per fact and law.
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2020 (6) TMI 697
Exemption u/s 10(37) - interest received on compensation/enhanced compensation u/s 28 and 34 of the Land Acquisition Act - whether the interest on the compensation received by the assessee is in the nature of compensation exempt from tax u/s 10(37 ) or taxable under Section 56 (2 )( viii) as interest under the head “ income from other sources”? - HELD THAT:- As decided in SHRI SATBIR, SHRI VED PAL, SHRI SHEO CHAND, SHRI KARAMBIR, SHRI DHARAM PAL AND SHRI CHANDGI RAM VERSUS THE ITO, WARD – 1, JIND [2018 (7) TMI 1163 - ITAT CHANDIGARH] proposition laid down in Ghanshyam, HUF [2009 (7) TMI 12 - SUPREME COURT] remains and which having been laid down by the Hon'ble Apex Court is the law of the land and has to be followed by all lower authorities. The interest received by the assessee during the impugned year on the compulsory acquisition of its land u/s 28 of the Land Acquisition Act, is in the nature of compensation and not interest which is taxable under the head income from other sources u/s 56 of the Act as held by the authorities below. The compensation being exempt u/s 10(37) of the Act is not disputed. In view of the same the order passed by the CIT(Appeals) upholding the addition made by the AO on account of interest on enhanced compensation is, not sustainable.
Further the issue under consideration regarding the taxability of interest on enhanced compensation is a debatable issue and do not constitute a mistake apparent on record. In view of the limited and restricted powers of rectification u/s 154 or u/s 254 as the case may be, it cannot be said that any mistake apparent on record had occurred in the order of the Tribunal. In view of the above discussion, these appeals of the assessee are hereby allowed.
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2020 (6) TMI 696
Special Audit u/s.142 (2A) - whether the action of the ld. CIT, Central-II for granting extension for the further period is legally valid are not? - HELD THAT:- As carefully gone through the entire events and the verbatim of the letters. We also tried to dwell whether the intention of the AO is to” extend the period” or conveying the” approval of the CIT”. While it may be an administrative phenomenon to intimate, inform the CIT about the fact of the special audit party appointed seeking extension, but statutorily that power is vested with the AO. On going through the established judgment, it cannot be disputed that the statutory powers vested with one specified authority cannot be exercised by another authority unless and until the statute provides for the same. And we find that the extension has not been given by the AO.
The powers and the jurisdiction of the various authorities to implement the Income Tax Act stands clearly defined in the statute. For example, the power to approve the accounts audited u/s 142(2A) lies with CIT/PCIT/CCIT or PCCIT. The powers u/s 144A are to be exercised by the Joint Commissioner or Additional Commissioner. The powers u/s 251 are specific to the Commissioner (Appeals). Similarly, the powers u/s 263 and 264 are to be exercised by the PCIT/CIT. Further, in exercise of the powers conferred under clause (a) of sub-section (2) of section 119 of Income-tax Act, 1961, Central Board of Direct Taxes, may direct that the Chief Commissioner of Income-tax and Director General of Income- tax may reduce or waive interest charged under section 234A or section 234B.
While levy of the penalty u/s 271AAB is the power of the Assessing Officer, the provisions u/s 274(2) mandates that the prior approval of the JCIT is required before levy of such penalty. Thus, we find that the statute has accorded implementation of the various provisions to specified authorities which cannot be interchanged.
A power which has been given to a specified authority has to be discharged only by him. Substitution of that officer/authority by any other officer, may be of higher rank, cannot validate the said order/ action. The extension could have been valid only if it had been given by the Assessing Officer after due application of mind and after examining the existence of circumstances as provided in proviso below Sec. 142 (2C), since, it has to be given only by competent authority. In this case, the extension has not been given by the AO but by the CIT, Central-II and the AO has only conveyed the approval, therefore, we hold that the extension given by the CIT, Central-II is beyond the powers vested as per the statute and accordingly the assessment completed after the due date is held to be void ab initio. Appeal of revenue dismissed.
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2020 (6) TMI 695
Disallowance of prior period expenses and foreign exchange fluctuation - disallowance of write off of earnest money deposit - HELD THAT:- We find merit in the claim of the assessee that one more opportunity be granted to the assessee to substantiate its above claim considering the undisputed fact that all the documents were lost by the assessee in a major fire and procuring evidence to substantiate its claim therefore was a very difficult process.
We, therefore, consider it fit to grant one more opportunity to the assessee to procure all possible evidences to substantiate its aforestated claim of prior period expenses and foreign exchange fluctuation in assessment year 2011-12 and write off of earnest money deposit in assessment year 2012-13. We, therefore, restore the issue back to the AO to consider the issue afresh after giving due opportunity of hearing to the assessee.
Disallowance of depreciation on technical know- how - HELD THAT:- We are unable to fathom what the Revenue was attempting to do on the issue Revenue has not disputed the genuineness of the claim of expenses. It is not the Revenue’s case that the impugned expenses were bogus. What it has only done is that it has treated the R & D expenditure incurred by the assessee as revenue in nature as opposed to capital treated by the assessee. Accordingly, it has resulted in allowing the entire claim of the expenses incurred in the impugned year and disallowing the claim of depreciation on the opening value of WDV of the same. We do not find any justification in this exercise of the Revenue.
In all the past years the assessee has been consistently following this method of accounting and has also been allowed the same in scrutiny assessment u/s 143(3) for the preceding two years also - Revenue by this exercise has put the assessee at a loss when otherwise its claim of earlier years were allowable in entirety as per the Revenue itself in the year of incurring the expenditure only as against the assessee claiming only depreciation on the same. No justification or merit in this exercise of the Revenue and direct, therefore, that the entire expenses be treated as capital in nature and depreciation be allowed on the same. The addition made, therefore, on account of depreciation in both the years is directed to be deleted - Appeals of the assessee are partly allowed for statistical purposes.
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2020 (6) TMI 694
Addition on account of capital - gifts received from relatives - HELD THAT:- CIT (A) has correctly accepted and found it correct regarding the amounts received as gifts from husband and from her father-in-law. CIT (A) confirmed the remaining amount owing to non-substantiation of the amounts received.
Addition of loan - HELD THAT:- AO had doubts in his mind about the genuineness of these creditors and therefore provided an opportunity to the appellant to substantiate her claim by producing the respective creditors. The process of confirmation by post was initiated only to facilitate the appellant but even this exercise has resulted in confirmation of credits in respect of the aforesaid four persons. Each credit appearing in the Books of Account has to be substantiated by the appellant with the help of cogent and convincing evidence. In the present case, despite number of opportunities given to the appellant there has been no compliance.
The letters issued by the Assessing Officer has remained un-served or has not been responded by the respective creditors. In some cases, as mentioned above, even though the letters have been responded but the credit balance are different which would mean that the confirmations are not reliable. The appellant gets relief of ₹ 35,00,000/- in respect of the aforementioned four creditors out of the total credit amount of ₹ 1,07,00,000/- and the balance amount of ₹ 72,00,000/- is confirmed.
Addition of sundry creditors - HELD THAT:- Appellant failed to discharge initial onus' of proving genuineness of its sundry creditors. Even during enquiry by the AO and this office only three creditors confirmed balance. In consideration of the facts above, out of total addition of rupees ₹ 67,07,216/- on account of sundry creditors, the appellant gets a relief
Addition of commission paid owing to the absence of details of the persons to whom the commission has been paid - HELD THAT:- The appellant merely claimed that evidence has been lost in tire but at the same time she could have led secondary evidence by producing such parties and obtaining details from such parties about the payment of the said sum. The initial onus has not been discharged because by merely providing list no fruitful enquiry can be conducted until and unless further details are given. These agents were allegedly in fiduciary relationship with the appellant and it was much easier for her to obtain confirmation of accounts from the said agents. She has not taken any such steps and therefore prima facie genuineness of expenditure is in doubt. Further, the business purpose of the expense has also to be demonstrated besides the payment which is missing in this case because none of the agent has been examined by the appellant. Under these circumstances the AO has correctly disallowed the expense claimed
Disallowance of Advertisement expenses - HELD THAT:- We find from the record that the assessee has not produced any evidence to support the claim of expenditure. In the absence of any evidences or proof submitted by the assessee, these expenses cannot be allowed as utilized for the purpose of business. The order of the ld. CIT (A) is confirmed on this ground.
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2020 (6) TMI 693
Orders for release of securities - learned senior counsel sought intervention of this Tribunal to stay such orders as well as to allow the appellant to dispose of the securities worth ₹ 21.62 crores and thereafter releasing the remaining securities given by Respondent No. 2 to the appellant - HELD THAT:- We pass the following interim directions - The parties shall appear before NSE, either physically or through Video Conference, on June 24, 2020. NSE shall give the contact details and arrangements for the said meeting to the parties at least one day in advance.
(b) Based on the database of NSE and other parties rights in respect of the securities in question shall be reconciled/determined within one week thereafter.
(c) This Tribunal will hear the matter further on Friday, July 03, 2020. In the interim status quo shall be maintained by the parties i.e. there shall be no transfer of securities as directed in the impugned orders nor the appellant shall alienate any of the securities in question.
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2020 (6) TMI 692
Jurisdiction - Infringement of the Copyright of successful bidder - defendant is a State owned company - plea of the defendant of fair dealing protected under Section 52(1)(a) of the Copyright Act is misconceived for the reason fair dealing is only applicable to private or personal use including research and does not apply to commercial activity - HELD THAT:- Sub-clause (b) of Clause 16 of the resolution plan thus clarifies that all consents, licenses, approvals, rights and entitlements, benefits, privileges whether under law, contract, lease or license granted in favour of the corporate debtor or to which the corporate debtor is entitled or accustomed to shall notwithstanding any provision to the contrary in their terms be deemed to continue without disruption for the benefit of the corporate debtor. Thus, the use of terms 'entitled or accustomed to' are of wide amplitude and ensure continuity of all benefits in favour of LHTPL to continue with the defendant - Sections 63 and 231 IBC create a bar on the jurisdiction of the civil court in respect of any matter in which the NCLT and NCLAT has jurisdiction under the IBC and the adjudicating authority under the Code is competent to pass any order. Further, clause (c) sub-Section (5) of Section 60 IBC vests the jurisdiction in NCLT to entertain and dispose of any question of priorities or any question of law or fact, arising out of or in relation to the insolvency resolution for liquidation proceedings. Therefore, the jurisdiction vested in NCLT while dealing with a resolution plan is of wide ambit and any question of law or fact in relation to the insolvency resolution has to be determined by the NCLT.
Though there is a dispute between the parties on the aspect that in the absence of any assignment or a license issued in favour of LTHPL by the plaintiff how the benefit of such a license issued in favour of LIL could extend to the LTHPL however, neither party has filed the terms of agreement between LIL and LTHPL to clarify this aspect. However, as noted above, plaintiff has stated in the plaint that LTHPL was a SPV of LIL and that the Teesta VI Project was awarded to LTHPL - as per the resolution plan, dispute of the entitlement to the licenses or the benefit/privilege under the contract or license to which the corporate debtor is entitled or accustomed notwithstanding any provision to the contrary is a provision of wide amplitude and the disputes raised between the party would fall in relation to this right if that accrues in favour of the defendant. Thus the dispute raised in the present suit falls within the ambit of Section 60 (5) IBC as the same arises out of and/or is in relation to the insolvency resolution plan of LTHPL hence has to be adjudicated by the NCLT and the proceedings in the civil court are barred.
The present suit would also be not maintainable in the absence of necessary parties LIL and LTHPL. It appears that LIL has deliberately not been made a party as the very impleadment of the LIL which has gone into liquidation would have ousted the jurisdiction of this Court to entertain the present suit. Even assuming that LTHPL had wrongly usurped or was infringing the copyright of the plaintiff in the drawings which is not the case of the plaintiff in the present suit, the defendant’s right to use cannot be decided in the present proceedings.
The present suit and application are dismissed as not maintainable before this Court in view of Sections 230 and 231 read with Section 60(5) of the Insolvency and Bankruptcy Code.
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2020 (6) TMI 691
Oppression and Mismanagement - Sale of entire assets of the Respondent No. 1 Company sold illegally for the purpose other than the object of the Company - misuse of power of attorney granted unilaterally by Respondent No. 2 without notice - HELD THAT:- The Appellant is free to exercise her remedy under the Companies Act, 2013 when the Company law provides for "Oppression and Mismanagement" and hence imposition of costs needs review. It is also evident that the Appellant came to know about the Board Resolution dated 4-9-2014 for the first time when Respondent No. 3 has submitted its reply affidavit dated 8-3-2019 and at that juncture the Appellant wish to file a rejoinder affidavit but the NCLT refuse to allow her to do so and subsequently reserved the judgment. Since the Companies Act, 2013 provides for restrictions on powers of the Board to sell or dispose of the whole or substantially the whole of undertaking of the Company; Hence, the approval of shareholders through Extra-Ordinary General Meeting was required for selling the land being substantially the entire Assets of the Company.
It is very much evident that Members are free to file a petition/application if he or she is adversely affected or the interest of the Company is prejudicially affected, he or she is authorized to file petition/application under the Companies Act, 2013. The NCLT/NCLAT is the specialised agency to look into the impact on the members/company. Hence, there is a need to provide proper opportunity to the aggrieved members to present the genuiness or otherwise of the documents in relation to the provisions of Section 241 of the Companies Act, 2013 - matter remanded for appropriate consideration by the NCLT, Chennai Bench.
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2020 (6) TMI 690
CIRP Process - bank account of the Corporate Debtor was being used without prior approval of the IRP - HELD THAT:- The Directors acted wholly illegally once moratorium had been applied, in going ahead and withdrawing monies from the accounts at the back of IRP by even issuing cheques "Self". Such acts cannot be justified in any manner. The Appellant and Deepak Daga kept telling this Tribunal that they would return the money and in spite of undertaking given and time fixed, the money has not been returned and the CIRP process is seriously hampered. Consuming whole month stated in the Undertaking and without returning any money, we find no substance in the hollow statements in I.A. No. 1075 of 2020 - Application seeking time to comply with Undertakings. The I.A. wrongly states that undertakings given were without prejudice. They were voluntarily given. There are no bona fides in seeking time.
The Appellant and Deepak Daga since beginning were aware of nature of the acts they were committing in the illegal withdrawals. They disobeyed Orders of Adjudicating Authority and this Tribunal wilfully and there is wilful non-compliance of undertakings given. I.A. No. 1075 of 2020 to seek time to comply undertaking is not honest and appears to have been filed to create grounds of defence to further abuse process to kill time. The I.A. is rejected.
Appeal disposed off.
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2020 (6) TMI 689
Jurisdiction to pass order for re-bidding - Approval of Resolution Plan - section 31 of the I&B Code, 2016 - Whether the Adjudicating Authority has exceeded its jurisdiction in passing order for re-bidding, despite the approval of the Resolution Plan by CoC, with a vote share of 84.70% of votes?
HELD THAT:- In the instant case, the Adjudicating Authority has overturned the decision of the CoC regarding approval of the Resolution Plan despite being approved by 84.70 percent of the vote share of the CoC, on the pretext of maximisation of value of the corporate debtor. The provisions investing jurisdiction and authority in the NCLT has not made the commercial decision exercised by the CoC of not approving the resolution plan or rejecting the same, justiciable. In the circumstances, it is clear that the Adjudicating Authority cannot interfere with the commercial wisdom of CoC. The direction for rebidding for maximisation of the value of the corporate debtor also amounts to an interference in the business decision of the CoC, which is not permitted in law - the Adjudicating Authority is having limited power of judicial scrutiny under section 31, which has to remain within the four corners of Section 30(2) of the Code and the same cannot, in any circumstance, trespass upon the commercial wisdom of the CoC.
There is nothing on record to show that the RP manipulatively conducted the bidding process. It is also clear that the role of the Resolution Professional is only that of a facilitator. Evaluation matrix of the Resolution Plan also falls within the parameters of commercial wisdom of the CoC, which is non-justiciable - Appeal dismissed.
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2020 (6) TMI 688
Admissibility of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Existence of debt and dispute or not - HELD THAT:- The pendency of actions under the SARFAESI Act or actions under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 does not create obstruction for filling an Application under section 7 of Insolvency and Bankruptcy Code 2016, specially in view of Section 238 of IBC. The Application is more to bring about a Resolution of Corporate Debtor than any penal action or any recovery proceedings.
Appeal dismissed.
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2020 (6) TMI 687
Approval of Resolution Plan - section 30 (2) of the IBC read with Regulation 38 of the CIRP Regulations - HELD THAT:- The approved resolution plan is for the amount of ₹ 123.1 crore, payable to the secured financial creditors in compliance with the code within 30 days on which the resolution plan is approved by this adjudicating Authority which will be the date on which the corrected order is passed and the CIRP cost will be made out of the cash and bank balance of the corporate Debtor in priority to payment of other debts and against the total verified amount of ₹ 123.1 crore, the approved plan provides for the payment of entire amount upfront towards settlement of claims of all secured financial creditors and nothing towards the payment of unsecured related party financial creditors against the verified amount of 7.57 crore
The RP as required under regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 certified that the contents of the resolution plan meets with the requirements of the IBC and the regulations thereto and that the resolution plan has been approved by the CoC in the manner prescribed under the IBC - This bench directs the RP to act as the Monitoring Agency and thus appointed RP as "Monitoring Agency" to monitor and supervise the implementation of the Resolution plan and the remuneration of the monitoring agency shall be ₹ 1,50,000/- plus taxes and out of pocket expenses at actual.
The Resolution Applicant is allowed to remove and/or substitute the Monitoring Agency with prior approval of this Adjudicating Authority if the Monitoring Agency is unable to satisfactorily perform its responsibilities or breaches terms of its appointment.
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2020 (6) TMI 686
Levy of Service Tax - Club or Association Service - business of time share -principles of mutuality - HELD THAT:- This Court is of the view that there is no requirement for the respondents to levy service tax on the petitioner, with respect to the services provided to its members - Petition allowed.
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2020 (6) TMI 685
Interpretation of Statute - Section 7-A of the Tamil Nadu General Sales Tax Act, 1959 - Levy of Purchase Tax - purchase turnover, with respect to the purchase of empty bottles from unregistered dealers under bought note - Clarifications dated 09.11.1989 and 27.12.2000 - HELD THAT:- For applicability of Section 7-A (1) of the Act, all the six ingredients need to be cumulatively satisfied. The ingredient (6) has three alternatives viz., the dealer has either (a) consumed or used the goods in question in the manufacture of other goods for sale or otherwise, or (b) has disposed of such goods in any manner other than by way of sale in the State, or (c) has despatched or carried them to a place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce. It is not in dispute that clauses (b) or (c) of this ingredient are not attracted in this case, for the entire manufactured Beer/IMFL, after bottling, having been sold by the assessee only to the Tamil Nadu State Marketing Corporation Limited (TASMAC) within the State of Tamil Nadu.
There are no hesitation in concluding that the bottles in question have neither been consumed in manufacture of Beer/IMFL nor they could be said to have been used in such manufacture of Beer/IMFL. Hence, elements (i) and (iii) pertaining to clause (a) of sub-section (1) of Section 7-A of the Act do not exist in this case.
The purchase tax under Section 7-A of the Act is leviable on the purchase turnover of empty bottles purchased by the assessee in the course of its business of manufacture and sale of Beer and IMFL - the purchase turnover of the empty bottles purchased by the assessee from the unregistered dealers under bought note is exigible to purchase tax under Section 7-A of the Tamil Nadu Act; and the assessee cannot escape such liability on the strength of the Clarifications/Circulars dated 09.11.1989 and 27.12.2000 which do not stand in conformity with the statutory provision as also declaration of law by the Courts.
The appeal is partly allowed by holding that the purchase turnover of the empty bottles purchased by the assessee from the unregistered dealers under bought note is exigible to purchase tax under Section 7-A of the Tamil Nadu Act; and the assessee cannot escape such liability on the strength of the Clarifications/Circulars dated 09.11.1989 and 27.12.2000.
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2020 (6) TMI 684
Principles of Natural Justice - non-service of notice but assessment order served - suppression of sales turnover on the basis of electricity consumed during the assessment year in question - case of petitioner is that the respondent before making revised assessment, has not provided reasonable opportunity to the petitioner to furnish the books of accounts maintained for the relevant year - HELD THAT:- It is also an undisputed fact that the respondent, while passing the revised assessment order, has not verified the books of accounts maintained by the petitioner for the relevant year - It is well settled that the electricity consumption cannot be adopted as the sole basis for rejecting the accounts of the assessee and for making an estimate of the taxable turnover of the assessee.
The matter is remanded back to the respondent for fresh consideration. Though it is stated that the petitioner already filed a detailed objections on 23.01.2013, it is open to them to file their objections afresh, along with the required documents viz., books of accounts maintained by them, etc., within a period of two weeks from the date of receipt of a copy of this order - Appeal allowed by way of remand.
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2020 (6) TMI 683
Levy of VAT - certain defects and estimated visible loss and invisible loss - reversal of ITC for exempted sales - HELD THAT:- Since the refund order is relating to the assessment year 2011-12, the second respondent shall decide the issue afresh, after issuing show cause notice to the petitioner clearly setting out the circumstances under which they propose to revise or call upon the petitioner to reverse refund sanctioned and after receiving their objection. Such notice be issued by the second respondent within a period of four weeks from the date of receipt of a copy of this order. On receipt of such notice, the petitioner shall submit their objections along with the required documents, if any, within a period of two weeks thereafter.
The second respondent shall consider the same and pass appropriate orders, on merits and in accordance with law, after affording due opportunity of personal hearing to the petitioner, within a period of four weeks therefrom - Petition allowed by way of remand.
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2020 (6) TMI 682
Reversal of ITC - alleged invisible loss - validity of circular dated 20.10.2011 - HELD THAT:- Since the notice issued is relating to the assessment year 2012-13, the second respondent / Assessing Officer shall decide the issue afresh, after issuing show cause notice to the petitioner clearly setting out the circumstances under which they propose to revise or call upon the petitioner to reverse refund sanctioned and after receiving their objections. Such notice be issued by the second respondent within a period of four weeks from the date of receipt of a copy of this order.
The second respondent shall consider the same and pass appropriate orders, on merits and in accordance with law, after affording due opportunity of personal hearing to the petitioner, within a period of four weeks therefrom.
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2020 (6) TMI 681
Levy of VAT - 4% on the invisible loss at 5% of yarn purchase and on the sales of cutting waste and rejected export garments at 0.5% - HELD THAT:- Since the assessment orders are relating to the years 2006-07 and 2007-08, the respondent / Assessing Officer shall decide the issue afresh, after issuing show cause notices to the petitioner clearly setting out the circumstances under which they propose to revise or call upon the petitioner to reverse refund sanctioned and after receiving their objections. Such notices be issued by the respondent within a period of four weeks from the date of receipt of a copy of this order. On receipt of such notices, the petitioner shall submit their objections along with the required documents, if any, within a period of two weeks thereafter.
Petition allowed.
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9911796707
