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Case Laws
Showing 141 to 160 of 1722 Records
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2019 (9) TMI 1588 - CESTAT NEW DELHI
CENVAT Credit - duty paying invoices - invoices of dealer for inputs - allegation is that the cenvatable invoices of non-ferrous metals issued to the manufacturers of excisable goods without physical delivery of the goods - HELD THAT:- The facts herein are squarely covered by the precedent decision of this Tribunal in the case of Multimetals Ltd. & Others vs. CCE &ST, Udaipur [2018 (5) TMI 818 - CESTAT NEW DELHI], where it was held that In the instant case, it appears that the appellant has availed the cenvat credit on the basis of such duty paying documents and cleared the goods manufactured on payment of duty, which was accepted by the department without any objection.
In the facts of the present case also, it is found that the appellant Shri Shiv Kumar Garg whose statement was recorded by Revenue on 25.04.2016 has categorically stated that they have received the goods alongwith cenvatable invoices. Even on being confronted with the statement of Shri Amit Gupta and of the transport company, Shri Shiv Kumar Garg maintained the stand as they have physically received the goods that the same were entered in RG-23A Part –I and II register, and the payments for inputs were made through letter of credit, a copy of which is provided to the department - the appellant has sufficiently established that they have received the inputs alongwith duty paying documents, thus, taking of credit is under the scheme of the Act and as per the Rules.
Appeal allowed - decided in favor of appellant.
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2019 (9) TMI 1587 - CESTAT NEW DELHI
CENVAT Credit - duty paying documents - case of Revenue is that the impugned availment of cenvat credit the Notification introducing third proviso of Rule 4 (1) of Cenvat Credit Rules, 2004 was not in existence - HELD THAT:- The period of six months with respect to both the impugned Bills of Entry expires before the incorporation of proviso 3 in Rule 4 (1) of CCR, Rules, which waives the limitation of six months from the date of Bill of Entry.
It is apparent from the Notification dated 1st September, 2014 that there is no stipulation in the amending Notification for same to be applicable retrospectively. Rules of interpretation provide that whenever any statute is newly added, the same has prospective effect only, unless and until it is specifically provided in the amending statute or the amendment is by way of substitution of an existing provision, mainly by way of clarification or removal of defects. The same is not true for the impugned notification. Rule 9 of Cenvat Credit Rules, 2004 otherwise mandates the period of six months from the date of issue of relevant document for the purpose of raising respective claim.
The Commissioner (Appeals) has committed no error in holding that Cenvat Credit has been availed beyond six months of the impugned Bills of Entry - appeal dismissed.
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2019 (9) TMI 1586 - CESTAT NEW DELHI
Penalty under Section 11AC of the Act - short payment of tax - production and clearance of “Coal” to Jayaswal Neco Industries Ltd., Raipur a sister concern - revenue neutrality - HELD THAT:- It is admitted fact that the respondent had the mining unit at Raigad and pursuant to the mining operation, the mining unit transfers coal to their steel manufacturing unit at Raipur for captive consumption. Further, admitted fact is that the output of both the mining unit as well as the steel manufacturing unit is dutiable. Thus, the situation is wholly Revenue neutral.
Further, it is admitted fact that the respondent has deposited the differential duty after getting the inputs from the Cost Accountant, in the form of CAS-4 report/ certificate. Thus, there is no condition precedent available for imposition of penalty.
Penalty rightly set aside - appeal dismissed.
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2019 (9) TMI 1585 - CESTAT NEW DELHI
Levy of service tax - Business auxiliary services or not - commission earned while disbursing loan - activity is commercial in nature or not - HELD THAT:- This Tribunal has already decided the issue on merits against the appellant in NATIONAL CO-OPERATIVE DEVELOPMENT CORPORATION VERSUS COMMISSIONER OF SERVICE TAX, DELHI [2018 (3) TMI 707 - CESTAT NEW DELHI] where it was held that there is no case for excluding income of appellant as commission in disbursing loan, from tax liability under BAS.
The demand is upheld - appeal dismissed - decided against appellant.
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2019 (9) TMI 1584 - PUNJAB-HARYANA HIGH COURT
Validity of termination order/notice - handing over the Metro link from the Delhi Metro Sikanderpur Station on MG Road to NH-8 to HSVP on account of termination of concession contract - challenge on the grounds that the period of 90 days shall start from the date of permission which has not been granted by Hon'ble Mr. Justice D.K. Jain (Retd.) - HELD THAT:- RMGSL is permitted to handover the possession and control of Metro link from Delhi Metro Sikanderpur Station on MG Road to Sector 56, Gurugram to HSVP, pursuant to the termination of the Concession Agreement dated January 3, 2013. It goes without saying that this permission is without prejudice to the rights and contentions of the contesting parties to take recourse to appropriate legal proceedings to assail the validity and consequences of termination of the Concession Agreement by both of them. It is, however, clarified that HSVP, shall still be free to engage the services of RMGSL, albeit at the mutually discussed/negotiated terms and charges to run the subject Metro link till, such time, appropriate/alternative arrangements are made by HSPV to run the same."
Petition disposed off.
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2019 (9) TMI 1583 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA BENCH
Application filed by MSC Agency (India) Pvt. Ltd. for impleading as a party - HELD THAT:- The application is withdrawn vide order of this Bench on today. Therefore question of impleading the applicant in a non existing application doesn't arise.
This application is not maintainable - application dismissed.
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2019 (9) TMI 1582 - ANDHRA PRADESH HIGH COURT
Violation of principles of natural justice - Seeking direction declaring the action of the 1st Respondent in passing the Audit Assessment Proceedings, dated 05.08.2019 under the A.P. VAT Act - period 2014-15 to 2016-17 - HELD THAT:- Having regard to the facts and submissions and the issues raised in the Writ Petition, which require detailed examination on merits, the impugned order can be set aside and the matter may be remanded to the 1st respondent for passing orders afresh, as such a course sub-serves the ends of justice.
The matter is remanded to the 1st respondent for passing orders afresh - Petition allowed by way of remand.
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2019 (9) TMI 1581 - NATIONAL COMPANY LAW TRIBUNAL, PRINCIPAL BENCH, NEW DELHI
Various objections have been filed - learned counsel for the objector states that a copy of the same shall be furnished to the counsel for the RP during the course of the day - List for arguments on 10.10.2019.
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2019 (9) TMI 1580 - NATIONAL COMPANY LAW TRIBUNAL, BENGALURU
Seeking Liquidation of Corporate Debtor - Section 60(5)(C) read with Section 33(2) and Section 34(1) of IBC, 2016 - HELD THAT:- Section 33 of I&B Code provides if no resolution plan is received then order of liquidation has to be passed against the Corporate Debtor Company - Committee of Creditors also approved the resolution for liquidation.
In the result, the instant Application needs to be allowed to liquidate the Corporate Debtor Company - the Corporate Debtor is ordered to be liquidated - application allowed.
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2019 (9) TMI 1579 - ITAT MUMBAI
Stay of recovery of outstanding demand - Addition of of transfer/assignment of call options under the frame work agreement - HELD THAT:- The assessee cannot be faulted for non-disposal of the appeal. At the same time, the contention of the learned Departmental Representative that identical issue relating to transfer/assignment of call option in the assessment year 2012-13 has been decided by the Tribunal, Ahmedabad Bench against the assessee cannot be ignored altogether - contention of the learned Departmental Representative that the amount of income accruing to the assessee on account of transfer/assignment of call option has to be assessed in any one of the assessment years, considering the fact that the assessee has already exercised its option to transfer/assign, merits consideration.
As mentioned earlier, contention of learned Departmental Representative that the ITAT Ahmedabad Bench in assessee’s own case for Assessment Year 2012-13 [2018 (1) TMI 1302 - ITAT AHMEDABAD] on similar facts, has confirmed the transfer pricing adjustment on exercise of call option also has to be kept in perspective while considering assessee’s prayer for grant of stay. Further, it is seen from record, the corresponding appeal of the assessee is now posted for hearing on 5th November 2019.
Therefore, considering the overall facts and circumstances, prima facie case, balance of convenience and without prejudice to the respective rights and contentions of the parties, which will be duly considered at the time of hearing of the corresponding appeal, we direct the assessee, in the interregnum, to pay a further sum of ₹ 25 crore in two equal instalments of ₹ 12-50 crore each by the end of September, 2019 and October, 2019 and furnish proof of such payment before the AO. Further the corporate guarantee furnished by the assessee as per the earlier direction of the Bench should also continue. Subject to fulfilment of the aforesaid conditions, recovery of balance outstanding demand shall remain stayed for a period of six months from the date of this order or till disposal of the corresponding appeal of the assessee, whichever is earlier.
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2019 (9) TMI 1578 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Maintainability of appeal - HELD THAT:- Place both the appeals ‘for Orders’ on 19th November, 2019 within five cases before the first Bench. Until further order, the interim order passed on 27.08.2019 shall continue.
However, pendency of these appeals will not come in the way of NCLT Bangaluru to proceed with the Company Petition on merit subject to the decision of this appeal.
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2019 (9) TMI 1577 - NATIONAL COMPANY LAW TRIBUNAL, HYDERABAD BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - debt arises out of an arbitral award - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- The notice was served on the corporate debtor. Postal track record is filed through Memo. Learned counsel contended that corporate debtor has not replied or failed to defend. The claim is submitted within period of time prescribed under Limitation Act, 1963. Thus, the claim is within limitation. There is no representation or reply by the Corporate Debtor. Corporate debtor was served with notice before admission however, corporate debtor remained absent and it did not contest the claim.
The operational creditor has been able to establish un disputed debt against corporate debtor and the corporate debtor has been in default with regard to the payment of dues to the operational creditor amounting to ₹ 1,89,02,200/-. The Operational creditor is able to establish through documents that corporate debtor committed default of operational debt and there is no pre existing dispute. Thus, this Petition is complete and is liable to be admitted.
The Adjudicating Authority admits this Petition under Section 9 of IBC, 2016, declaring moratorium for the purposes referred to in Section 14 of the Code - Petition admitted - moratorium declared.
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2019 (9) TMI 1576 - ITAT MUMBAI
Rectification application u/s 254 - applicant/assessee has stated that the assessee was not served by the notice of appeal as the address of the applicant/assessee has been changed - HELD THAT:- Perusal of record reveals that hearing of appeal was fixed on 28.11.2018. The assessee was directed to be served through ld. DR for the revenue. Perusal of record further reveals that ld. DR for the revenue furnished report of Inspector from office of ITO-13(1)(1), Mumbai wherein it was reported that Inspector visited the address at B-16, Roopkamal, S.V. Road, Kandivali (W), Mumbai-67, however, the door of premises was locked, the notice of hearing was affixed (pasted).
Before us, assessee vehemently submitted that the assessee was not served with the notice and that they were not aware about the pendency of appeal. Considering the facts and circumstances of the case and the fact explained before us by ld. AR of the assessee that assessee was prevented by sufficient cause in not appearing when the case/appeal was taken up for hearing. Therefore, we find a sufficient cause within the meaning of Rule 25 of Income Tax (Appellate Tribunal) Rules and recalls the order dated 16.01.2019. Misc. Application filed by assessee is allowed.
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2019 (9) TMI 1575 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI BENCH
Maintainability of CIRP against a Corporate Debtor who is already Undergoing another CIRP - HELD THAT:- As per the provisions of Section 11 of I&B Code, 2016 another Corporate Insolvency Process cannot be initiated against a corporate debtor that is undergoing a corporate insolvency resolution process. However, it is needless to add that the applicants would be entitled to file their claim before the Insolvency Professional in accordance with law which shall be duly considered.
Application disposed off.
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2019 (9) TMI 1574 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Settlement with the claims of the banks - OTS proposals given which were under consideration of the Bank - HELD THAT:- Issue Notice. Requisite along with process fee, if not filed, be filed by 30th September, 2019. If the Appellant provides the e-mail address of Respondents, let notice be also issued through e-mail also.
Post the case ‘for admission (after Notice)’ on 11th November, 2019.
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2019 (9) TMI 1573 - JAMMU AND KASHMIR HIGH COURT
Refund of GST - Scheme of Budgetary Support - partial rejection of the claim of the petitioner without assigning any reason and also without affording any opportunity of hearing - principles of natural justice - HELD THAT:- It cannot be disputed that the principles of natural justice are required to be followed unless specifically barred. Rules of natural justices are not always part of the statute or the rules framed there under. Many a times they are to be read into it, considering the nature of duties to be performed. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice - In the case in hand, the scheme does not bar application of the principles of natural justice. It provides that whenever application is filed, on examination thereof the competent authority shall sanction the reimbursement. Of course, there is no need to grant any opportunity of hearing, if the claim made in the application is to be accepted. However, opportunity of hearing would become necessary in case any part of the claim is sought to be rejected.
Alternative remedy of appeal - HELD THAT:- The argument is contrary to the Circular No. 1068/1/2019-CX dated 10.01.2019 issued by Government of India, Ministry of Finance, Department of Revenue, which clearly provides that there is no remedy of appeal under the Scheme. This Court is not examining this issue, as such, at this stage as the aforesaid circular is not binding to the Court. Further, if there is violation of principles of natural justice, the writ can always be entertained considering the facts and circumstances of the case.
The contention raised by learned counsel for the petitioner that even if the opportunity of hearing is afforded to the petitioner, the consequences will remain the same - HELD THAT:- This Court would not like to examine the factual aspects of the case with all the calculations to find out as to what extent the petitioner would be entitled to reimbursement. There is a complete procedure provided in detail with percentage to determine the amount to which an applicant may be entitled to the reimbursement. Let that matter be examined by the authority first after affording an opportunity of hearing to the petitioner.
Order impugned passed by the respondent No. 2 is set aside, as far as it relates to rejection of the amount of reimbursement claimed by the petitioner with a direction to respondent No. 2 to adjudicate the claim of the petitioner after affording opportunity of hearing to the petitioner - Petition allowed.
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2019 (9) TMI 1572 - ITAT MUMBAI
Deemed dividend u/s 2(22)(e) - shareholder of M/s Gayatri Films & Music Pvt. Ltd viz. Mr.Jyoti Sagar (holding 21.06% shares) was also having substantial shareholding of 26.94% in the assessee company viz. M/s Sagar Arts Pvt. Ltd. - HELD THAT:- Admittedly, as is borne from the records, the assessee company is not a shareholder in M/s Gayatri Films & Music Pvt. Ltd. In fact, the entire issue hinges around the aspect as to whether any shareholder of M/s Gayatri Films & Music Pvt. Ltd. (holding not less than ten percent shares) was simultaneously during the year holding not less than twenty percent of equity shares in the assessee company viz. M/s Sagar Arts Pvt. Ltd., or not. As per the revenue, one common shareholder viz. Mr. Jyoti Sagar who was holding 21.06% shares in M/s Gayatri Films & Music Pvt. Ltd., was simultaneously having a 26.94% shareholding in the assessee company. We have perused the records and are unable to persuade ourselves to subscribe to the manner in which the shareholding of Mr. Jyoti Sagar in the assessee company and M/s Gayatri Films & Music Pvt. Ltd. has been worked out by the A.O - Decided against revenue.
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2019 (9) TMI 1571 - ALLAHABAD HIGH COURT
Liability of tax - sale of ladies suits (un-stitched dress materials) - unclassified items or not - HELD THAT:- Perusal of the order of the Tribunal reveals that the Tribunal has found that the items sold by the assessee were not stitched garments but only textile as may be put to use for stitching ladies garments. The fact that some embroidery had been done, did not make any difference in the opinion of the Tribunal, inasmuch as the items themselves did not constitute stitched garments and such identity could not be attached to them.
Arising from such factual findings, the further finding reached by the Tribunal that the items in question did not constitute stitched garments but only textile made up, cannot be faulted.
Revision dismissed.
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2019 (9) TMI 1570 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - home buyers - dues of home buyers i.e. Real Estate (Residential) - Financial debt or not - existence of debt and dispute or not - Section 5(8) (f) of I&B Code - HELD THAT:- Clause (8) of Section 5 of the Code has been amended by the Insolvency and Bankruptcy (amendment) Ordinance, 2018 with effect from 6th June, 2018. In view of the revised definition at Clause 8(f), any amount raised from an allottee under a real estate project is deemed to be an amount having the commercial effect of a borrowing and thus, is covered by the definition of 'Financial Debt' under the Code. Definition of 'Financial Debt' has been amended to specifically include dues of home buyers i.e. Real Estate (Residential). The amendment also recognizes home buyers as "Financial Creditor". Accordingly, the home buyers can initiate Corporate Insolvency Resolution Process against defaulting builder or developer, as "Financial Creditor" in terms of Explanation to Section 5(8) (f) of the Code with effect from 06.06.2018.
Therefore, petitioner being a financial creditor can invoke Corporate Insolvency Resolution Process under Section 7 of the Code against the respondent Corporate Debtor in case of default in repayment of financial debt.
The Corporate Debtor has committed default in repayment of the outstanding financial debt which exceeds the statutory limit of rupees One Lakh. Thus, the application warrants admission as it is complete in all respects.
This Bench orders restoration of the name of the Corporate Debtor Company in the Register of RoC - Application admitted - moratorium declared.
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2019 (9) TMI 1569 - MADRAS HIGH COURT
Liability of tax - manufacture of sheet metal components and effects sales to Hyundai Motor India Limited - section 3(2) of the Tamil Nadu Value Added Tax Act, 2006 - Input tax credit - Section 19(2)(iv) of the Act - whether the provisions of Rule 6(3)(b) are mandatory such that the certificate mentioned therein is the only method by which a dealer/assessee could support his claim in terms of Section 3(2) of the Act? - HELD THAT:- A perusal of the relevant statutory provision as well as Rule do not bring home the point that the production of an industrial input certificate is mandatory to avail the benefit of Section 3(2) of the Act. No doubt, Rule 6(3)(b) refers to an industrial input certificate stating that such certificate ought to be procured by the purchaser from the seller.
The Supreme Court, in SODHI TRANSPORT CO. AND ANOTHER VERSUS STATE OF UP. AND ANOTHER (AND OTHER APPEALS AND WRIT PETITIONS) [1986 (3) TMI 303 - SUPREME COURT], considered the provisions of the Uttar Pradesh State Sales Tax Act which contains provisions in parimateria with Section 70 of the Tamil Nadu Value Added Tax Act, in fact even stricter, since the phrase used therein is ‘shall produce a transit pass’, interpreting the same to state that non-production of a transit pass was not fatal as the burden of establishing exit of the goods from the State would then revert back to the assessee, who could well prove the same by reference to other supporting material. The presumption that the goods have not exited the State was thus rebuttable, enabling the dealer to draw support of other materials in its possession in this regard.
Non-production of a Declaration under section 6(3)(b) is not fatal to the claim of the assessee. Having said so, the Assessing Authority has in the impugned order found that only a supporting statement was filed by the petitioner and had no actual particulars of transactions such as work order, inward delivery challan, quantity received and outward delivery challan were supplied. If at all the petitioner was of the view that its claim was in order, the burden rested upon it to justify such claim with whatever material that it could furnish. Such factual particulars do not appear to have been filed.
While holding that the Declaration in terms of Section 6(3)(b) is not the only evidence in support of the claim of the petitioner and that the petitioner is well entitled to produce any other supporting evidence as it may be in a position to, this issue is remanded back to the Assessing Officer to be re-done after hearing the petitioner, within a period of four weeks from the date of receipt of a copy of the order.
Input Tax Credit - Section 19(2)(iv) of the Act - HELD THAT:- This Court, in the case of SARA LEATHERS VERSUS COMMERCIAL TAX OFFICER, TAMBARAM I ASSESSMENT CIRCLE, CHENNAI [2009 (10) TMI 848 - MADRAS HIGH COURT] considered the claim of refund by an assessee. The petitioner therein had claimed refund that had been restricted by the Assessing Officer on the ground that the proper rate of tax in respect of the goods was much less than what had been remitted. The applicable statutory provision in that case was Section 18 dealing with zero-rating and upon consideration of the mater, this Court has expressed the view that the right of input tax credit, when the payment of tax per se is not disputed, is absolute. If the Revenue were to be extended the discretion to either restrict the claim of refund or a claim of input tax credit when the payment of tax was itself undisputed, then it would give rise to a case of unjust enrichment where having received the tax at a particular rate, the claim of ITC in that regard was restricted. Evidently, this cannot be so and for these reasons, the second ground is allowed.
Petition allowed.
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