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Showing 141 to 160 of 844 Records
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2020 (7) TMI 705
Principles of Natural Justice - request of the appellant for cross examination of the witnesses has been rejected during the adjudication proceedings in the SCN - Section 138B of CA - HELD THAT:- From the plain reading of clause (b) of sub section 1 of section 138(b), it is clear that the statement made and signed by person before the Custom Officer can be admitted as evidence when the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. In the above section, no exception is provided or any discretion is provided for the Adjudicating Authority to allow or not to allow the cross examination. Particularly, in the present case, when the appellant have vehemently requested the cross examination of the witnesses. The Adjudicating Authority cannot have his own assumption and presumption that whether anything will come out from the process of cross examination. It is up to the defendant that whether the cross examination will help for his defence. The cross examination is a vital part of principles of natural justice.
The appellant should be allowed cross examination, the witnesses except the SIO. The SIO is part of the investigation and the Show Cause Notice has relied upon various statements, letters and opinions.
The cross of SIO is unwarranted - the learned Principal Commissioner being adjudicating authority shall grant cross examination of witnesses as requested by the appellant - Appeal allowed.
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2020 (7) TMI 704
Condonation of delay of 110 days in filing appeal - sufficient cause present for delay or not - HELD THAT:- It is apparent that the period to file the impugned appeal stands expired on 11 May 2019. Now coming to the reason quoted as sufficient cause for the delay of 110 days in filing the appeal, we observe that the only reason quoted is pendency of writ-petition No. 2826/2019 being filed before Hon’ble High Court of Delhi. Apparently and admittedly the said writ-petition was filed on 10 May 2019 that is just one day prior the date of expiry of period of limitation available to the present applicant to file the impugned appeal.
Otherwise also, we observe that the writ-petition was filed by one Shri Stanley Fernandes. The said petitioner though was consignor but apparently he is not appellant nor as is apparently the co-noticee of the appellant in the impugned show cause notice No. 3007 dated 07 February 2018. Also there is no order been passed against him as is apparent from the impugned order dated 30 January 2019. For this reason also the pendency of said writ-petition does not seem to extend any benefit to the present applicant who is none but the importer and the proposed allegation of mis-declaration on his part that too to the extent of importing 43020 pieces of memory card serve 4 GB and 8 GB quantity under the garb of three battery UPS, is not available to him.
COD application dismissed.
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2020 (7) TMI 703
Approval of Resolution Plan - section 31(1) of the Insolvency and Bankruptcy Code, 2016 - CIRP process - effective implementation of the plan - HELD THAT:- This Adjudicating Authority is of the opinion that the resolution plan as approved by the committee of creditors under sub-section (4) of section 30 of the Insolvency and Bankruptcy Code, 2016 meets the requirement as referred in section 30 of the Insolvency and Bankruptcy Code, 2016 sub-sections (1), (2), (2)(a), (2)(b), (2)(c), (2)(d), (2)(e), (2)(f), (3), (4), (5) and (6) and has provisions for its effective implementation.
Hence, this Adjudicating Authority is hereby approved the resolution plan submitted by the resolution professional as approved by the CoC. This resolution plan is now binding on the corporate debtor and its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan from today.
The resolution plan is approved with such observations that the resolution applicant shall follow the provisions of section 31(4) of the Insolvency and Bankruptcy Code, 2016, to obtain necessary approval required under any law for the time being in force within the period one year from the date of approval of the resolution plan by this Adjudicating Authority under sub-section (1) of section 31 of the Insolvency and Bankruptcy Code - Moratorium shall cease to have effect.
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2020 (7) TMI 702
Taxability - principles of mutuality - services provided to group / promoter companies - period April 2007 to September 2011 - Business Auxiliary Service or not - HELD THAT:- The companies have come together to share the resources and there is mutuality of interest of the promoters / member companies. No evidence of any consideration paid by Group Companies for providing of services to the member-companies or GMR group of companies. The only basis for providing of services by the appellant is on cost sharing basis as per the norms or formula laid down by the members of the appellant company. Therefore, SCN is not maintainable both on the principle of mutuality and on the fact of lack of consideration for such services alleged to have been rendered.
Appeal allowed - decided in favor of appellant.
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2020 (7) TMI 701
Levy of Service Tax - Construction Activities - reverse charge mechanism - it appeared to revenue that appellant were providing “Construction of Residential Complex Service‟ for the period upto 30.06.2012 and same service after 01.07.2012 being covered by the provisions of Section 66 E of the Finance Act, 1994 - exemption under Sl. No.14 of N/N. 25/2012-ST dated 20.06.2012 - HELD THAT:- There is no evidence on record to establish that the appellant had constructed a residential complex before 30.06.2012 or the appellant had constructed a complex with more than 2 residential units together after 01.07.2012 - Thus the appellant did not provide residential complex service prior to 01.07.2012 and appellant was eligible for exemption under Notification No.25/2012-ST dated 20.06.2012 at Serial No.14 for activity of construction undertaken by him for the period subsequent to 01.07.2012. Further, appellant was not liable to pay Service Tax under Reverse Charge Mechanism.
Appeal allowed - decided in favor of appellant.
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2020 (7) TMI 700
Extended period of limitation - VCES scheme - invocation of proviso to Sub-section (1) of Section 73 of Finance Act, 1994 - demand on the ground that the appellant had not filed ST-3 returns till the issue of show cause notice - HELD THAT:- The learned Original Authority has accepted the plea of the appellant that the details of the transactions were recorded by the appellant in their specified records. Further, he was held that the appellants were entitled to reduced penalty. This indicates that there were no elements for invoking extended period of limitation - Further, in view of submissions of the learned Chartered Accountant on behalf of the appellant that the amount voluntarily deposited was more than service tax liability for normal period, there were no provisions for issue of said show cause notice dated 05.06.2017 in view of provisions of Sub-section (3) of Section 73 of Finance Act, 1994. Therefore, subject SCN was not sustainable.
The impugned Order-in-Original is not sustainable - appeal allowed - decided in favor of appellant.
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2020 (7) TMI 699
Maintainability of application - availability of alternative remedy - Principle sof natural justice - opportunity to cross examine 50 witnesses not granted, whom the appellant/assessee intended to cross examine during the course of assessment proceedings before the learned Commissioner - HELD THAT:- Since the learned single Judge has only relegated the appellant to the effective alternative remedy, we are inclined to examine the details of the merits of the contentions raised by the learned counsel for the Assessee as to whether opportunity to cross examine the witnesses was required to be given in the present case or not or whether sufficient opportunity was already given to the Assessee or not. We cannot appreciate short circuiting the normal procedure of appellate forums to be availed by the Assessee in such cases. Merely because there has been an alleged breach of principles of natural justice, the Assessee is not allowed to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India and the learned Single Judge therefore, in our opinion, was perfectly justified in relegating the appellant back to the alternative remedy.
The Tribunal being the final fact finding body, is expected to look into all the aspects of the matter, including the aspect raised before the learned Single Judge about the cross examination of the witnesses. Whether the Assessee was given sufficient opportunity or not whether such cross examining was necessary at all or not, are all aspects which the Tribunal can very well consider in the appeal, if any filed by the Assessee.
Appeal disposed off.
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2020 (7) TMI 698
Reversal of CENVAT Credit - input materials and input services are used both in or in relation to the manufacture of dutiable and exempted goods - Rule 6 of the Cenvat Credit Rules - appellant had exercised the option of availing Rule 6(3)(i) of the Cenvat Credit Rules for the year 2008-09 by making payment as per the said provision in April 2008 - bar from altering of said option - HELD THAT:- This issue came up for consideration before a Co-ordinate Bench of the Tribunal in M/S. MERCEDES BENZ INDIA (P) LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-I [2015 (8) TMI 24 - CESTAT MUMBAI]. In this case the allegation was that the assessee while reversing the amount of cenvat credit and paying the interest had not followed the procedure as laid down in subrule 3A(a) and (b) of the Cenvat Credit Rules respectively, inasmuch as they had neither exercised these option by intimating the same in writing to the Superintendent of Central Excise giving required particulars nor had they determined and paid any amount provisionally for every month. Thus by not following laid down procedure as envisaged the assessee becomes liable to calculate and pay amount equivalent to 5% of the value on exempted services.
There is no requirement under Rule 6(3)(i) and Rule 6(3A) of the Cenvat Credit Rules that the option had to be exercised on the first day of the financial year or the first month thereof. On the contrary, the said provisions clearly indicate that such option could be exercised at any point of time during a financial year by a manufacturer. The only restriction under Explanation-I of Rule 6(3) is that once such option is exercised, the same has to be continued with during the remaining part of the financial year.
Thus, there has been due compliance by the appellant of the requirements under rule 6(3) and (3A), including the procedure laid down therein and the appellant has legally and validly availed the option in terms of Rule 6(3)(ii). The Commissioner has therefore erred in holding that the appellant had not fulfilled the conditions of procedure laid down in Rule 6(3) and Rule 6(3A) of the Cenvat Credit Rules and that the appellant was not entitled to avail option under Rule 6(3)(ii) of the Cenvat Credit Rules - Even otherwise, the demand confirmed under Rule 6(3)(i) of the Cenvat Credit Rules by the Commissioner choosing such option in the show cause notice cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2020 (7) TMI 697
PIL - welfare of advocates - non-inclusion of advocates in the definition of the word “professionals” under the Micro, Small and Medium Enterprises Development Act, 2006 - Petitioner in person submitted that this public interest litigation has therefore been preferred for the welfare of advocates as a class, so that the benefits which flow from inclusion under the Act, 2006 is also available to them.
HELD THAT:- We are not inclined to entertain this petition as a Public Interest Litigation. It ought to be kept in mind that such public interest litigation for the benefit of a class of persons can be preferred if the affected persons are unable to access the courts, e.g. the poorest of the poor, illiterates, children, and other classes of people who may be handicapped by ignorance, indigence, illiteracy or lack of understanding of the law.
Looking to the fact that advocates are capable enough to approach the Court, if aggrieved, we see no reason to entertain this public interest litigation. As and when any advocate will approach the Court, decision can be taken on merits in accordance with law, rules and regulations applicable to the facts of the case.
Petition dismissed.
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2020 (7) TMI 696
Constitutional validity and legality of Section 17(5)(c) and Section 17(5)(d) of the Central Goods and Services Tax Act, 2017 and the Delhi Goods and Services Tax Act, 2017 and the Circular No.28 dated 01st January, 2018 - denial of Input Tax Credit - Works Contract - HELD THAT:- Issue Notice.
List on 15th September, 2020.
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2020 (7) TMI 695
Power to conduct search - reason to believe to conduct search, present or not - section 69 of GST Act - HELD THAT:- The assurance given by the learned counsel for the Revenue that no further recovery shall be effected till the demand is raised in accordance with law and that the matter is being kept for 05.08.2020 for further hearing, we direct that no coercive action shall be taken against the petitioner. The respondents shall remain bound by their statement made today till then.
However, it is clarified that the grant of interim protection regarding coercive steps shall not debar the respondents from carrying on the investigation till the next date of hearing.
List on 05.08.2020.
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2020 (7) TMI 694
Withholding of Refund - as per respondents since huge outstanding demand has been pending against the petitioner, the AO has initiated proceedings u/s 241A against the petitioner to withheld the refund after following prescribed procedure laid down in the Act - As per HC respondents are directed to refund to the petitioner within two weeks from the date of uploading of this order without fail - HELD THAT:- SLP dismissed.
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2020 (7) TMI 693
Adjustment of resulting demand against the refunds arising to the petitioner pursuant to disposal of rectification applications - HELD THAT:- Issue notice.
Mr.Deepak Anand, Advocate accepts notice on behalf of the respondents.
Keeping in view the limited prayer sought in the present writ petition, this Court disposes of the same by directing respondent No.2 to dispose of the petitioner’s aforesaid rectification application within six weeks by way of a reasoned order and to allow adjustment of resulting demand against refunds arising in previous and subsequent assessment years, if any, in accordance with law.
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2020 (7) TMI 692
Exemption u/s 54 - Whether date Viz., 27.02.2002 cannot be considered as the date of acquisition, while remitting the matter back to the Commissioner of Income-tax (Appeals) for fresh consideration? - HELD THAT:- Since the tribunal has remanded the matter for fresh consideration to the CIT(A), and in the meantime, the Hon'ble Supreme Court in Sanjeev Lal's case [2014 (7) TMI 99 - SUPREME COURT] has rendered a decision, it would be just and proper to permit the CIT(A) to take a decision on merits in its entirety instead of remanding the matter for a limited purpose. We do not propose to render any finding as regards the effect of decision in the case of Sanjeev Lal [cited supra] on the assessee's case and leave it to the decision of the CIT(A) to consider the same and take a decision, in accordance with law.
Tax Case Appeal is allowed and the observations made by the tribunal that the date of acquisition cannot be taken as 27.02.2002, is set aside and the matter is remanded to the CIT(A), to take a fresh decision on merits and in accordance with law.
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2020 (7) TMI 691
Eligibility for deduction u/s.10AA - qualification as 'manufacture' - as per revenue assessee is not carrying on any manufacturing at its SEZ Unit - Tribunal allowed deduction - Whether the Tribunal was right in holding that the assessee is carrying on manufacturing activity even though a new product having a distinctive name, character or use was not brought into existence at its SEZ Unit by the assessee as per Special Economic Zone Act 2005? - HELD THAT:- Revenue carried the matter by way of appeal to the tribunal and the tribunal once again re-appreciated the factual position and found that there is a process of 'manufacture' as defined under the SEZ Act, which takes place in the SEZ unit and also pointed out that the AO himself has accepted that the assessee's unit, processed the raw materials by removing 10 to 20% impurities. Cost comparison of the semi finished product with that of the raw material was also referred to and it was also pointed out that the AO could not establish that the assessee has suppressed the purchase cost of semi-finished goods in order to claim higher deduction under Section 10AA of the Act.
Certificate issued by the Assistant Development Officer was accepted on the ground that the revenue could not prove the same to be not genuine. Therefore, the tribunal sustained the factual finding recorded by the CIT(A).
Entire factual matrix has not only been analyzed by the CIT(A), but, also by the tribunal. Therefore, we are convinced to observe that no question of Law much less any Substantial Question of Law arises for consideration in this appeal.
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2020 (7) TMI 690
Effect of application of Section 43CA of the Act and Section 56(2)(vii)(b) of the Income Tax Act, 1961 substituted by Finance Act, 2013 w.e.f 01.04.2014 - scope of ‘total income’ be substituted by ‘the Valuation assessed by any Authority of a State Government for the purpose of payment of stamp duty’ - discrimination in application of Section 43CA and Section 56(2)(vii)(b)(ii) of the Act as it is known fact that the levy of stamp duty is a state subject - ‘valuation of the Stamp Valuation Authority’ - HELD THAT:- Learned counsel for the petitioner Mr. Deepak Kumar Sinha at the outset seeks permission to withdraw this writ petition in order to move before the appropriate Forum.
Learned counsel for the Income Tax Department does not object to the prayer. Petition dismissed as withdrawn.
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2020 (7) TMI 689
Certificate u/s 197- refusal to grant a certificate of deduction of tax at source at NIL rate, on payments to the petitioner company by its customers - petitioner prays to reconsider the petitioner’s application and grant Certificate under Section 197 of the Income Tax Act, 1961 for deduction of tax at source at NIL rate - petitioner contends that the impugned order is contrary to the principle of rule of consistency as the 0.9% rate specified in the impugned order is higher than the 0.7% rate of tax deduction at source determined in the immediately preceding year - HELD THAT:- Ms. Lakshmi Gurung, learned counsel accepts notice on behalf of the respondent. She states that the respondent while issuing the impugned certificate has placed detailed reasons on record.
Since detailed reasons are stated to be available on record, the present writ petition and the pending application are disposed of with a direction to the respondent to furnish a copy of the reasons to the petitioner within a week.
In the event the petitioner is aggrieved by the said reasoned order, it shall be open to the petitioner to file appropriate proceedings in accordance with law.
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2020 (7) TMI 688
Nature of expenditure - expenditure incurred in the renovation and redecoration of rooms in a hotel - capital expenditure or revenue expenditure - appellant is engaged in the business of running a three star hotel - HELD THAT:- Revenue does not dispute the fact that the number of rooms in the assessee’s hotel remained at 57 and that there was no increase in the number of rooms and only 18 rooms out of 57 rooms were renovated and repaired - assessee specifically contended that the renovation and repairs neither increases their capacity nor does it empower to revise the basic room tariff because it can be done only after considering further facts such as market condition remaining in Madurai City and with the concurrence of M/s.ITC Limited, as they only have a franchisee agreement with the assessee.
Granite and marble used by them will not last long and there is no guarantee and they may develop cracks and lose their shine and even become obsolete in a couple of years. These facts were never disputed before the Assessing Officer or before the CIT(A).
As rightly contended by assessee,Tribunal did not consider the issue, but was of the opinion that it was neither the case of the assessee nor that of the Revenue that the claim was for current repairs.
Assessment is for the year 2012-13 and the facts are not in dispute. It is only an application of legal principle to the given facts. Therefore, we hold that there is no justification in remanding the matter to the Tribunal or to any other Lower Authority.
We hold that the expenditure incurred by the assessee is a revenue expenditure and not a capital expenditure. - Decided in favour of assessee.
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2020 (7) TMI 687
Disallowance u/s 14A r.w.r. 8D - AO made the addition under Rule 8D(2)(iii) - total quantum of exempt income earned by the assessee was much higher than that of the disallowance made by the Ld. AO - HELD THAT:- We have carefully considered the judgment passed by the Hon’ble Delhi Bench in the matter of ACIT vs. Vireet Investment Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] as relied upon by the Ld. AR. However, we find that the ratio laid down in the said judgment has not been followed in its true spirit.
As we find that while making addition of.5% of the average investment under Rule 8D(2)(iii) the Ld. AO considered the entire investment made by the assessee instead of only those investment which yielded exempt income during the year. Thus, having regard to the entire facts and circumstances of the case we dispose of the appeal by restoring the issue to the file of the Ld. AO for re-computing the disallowance under Section 14A of the Act on the basis of investment which yielded exempt income in the year under consideration as observed by us hereinabove. Assessee’s appeal is thus allowed for statistical purpose.
Order being pronounced after ninety (90) days of hearing - COVID-19 pandemic and lockdown - HELD THAT:- Taking note of the extraordinary situation in the light of the COVID-19 pandemic and lockdown, the period of lockdown days need to be excluded. See case of DCIT vs. JSW Limited [2020 (5) TMI 359 - ITAT MUMBAI]
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2020 (7) TMI 686
Exemption of capital gain u/s 54EC being investment made in National High way Authority of India (NHAI) bonds - AO disallowed the exemption as investment in Long Term Specified Asset should be made within six month from the date of transfer of asset - when the transaction of transfer of asset was completed and if the assessee invested the capital gain within six months from the date of transfer of capital asset? - CIT(A) affirmed the action of assessing by taking the view that the transfer deed of the asset is in Guajarati and not readable and thus assessee has not proved - HELD THAT:- In view of the provisions of Registration Act and TP Act, the transfer of immoveable property is complete only when the registration of sale is completed. Though, as per section 47 of Registration Act it may relate back from the date of execution of document. In the present case, initially the document was executed on 8.10.2012, though; it was ultimately registered on 16.01.2013. The date of registration is not disputed by lower authorities. The lower authority denied the claim of assessee on the ground that the document was initially executed on 8.10.2012. No investigation was conducted by the assessing officer to disbelieve the contention of the assessee that finally transaction of transfer of asset was completed only on 16.01.2013.
There is no distinction between the transfer of title and the completion of sale; and the title passes only when the document is registered under the Registration Act. The mere fact that such transfer operates from the date of execution is not sufficient to conclude that the title itself passes on the date of execution. Consequently, the transfer in the instant case could not be deemed to have been expected on the date of execution of the document.
As we have already held that the sale of the immovable property is complete only on registration of transfer deed as mandated under section 54 of the Transfer of Property Act. There is no dispute that the assessee has invested ₹ 25,00,000/- on 31.05.2013 and ₹ 25,00,000/- on 31.07.2013. Therefore, in view of the aforesaid discussion we are in agreement with the contention of the ld. AR for the assessee that the assessee invested the LTCG in NHAI bond within six month of transfer of asset and is eligible for exemption under section 54EC. - Decided in favour of assessee.
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