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Showing 181 to 200 of 1723 Records

• 2019 (9) TMI 1549 - AUTHORITY FOR ADVANCE RULINGS — NCR BENCH (INCOME-TAX)]
  

  Advance ruling application - Income taxable in India - capital gains on the proposed sale of shares - transfer of shares from a holding company - India-Mauritius Tax Treaty - Applicability of provisions of section 90 - HELD THAT:- Ruling the issues of advancing loan to the holding company with interest at 1 per cent. and waiver of earlier loan while advancing fresh loan, have no relevance while deciding the question before us. Even if the entire sale consideration goes back to the parent holding company it will not dilute the separate legal identity of the applicant. The matter regarding variance in the date of transfer of shares as per contribution agreement and the financial statements has been clarified by the applicant.

  Suitable clarification has also been provided in respect of the loan given by the applicant not found reflected in form 10-K accounts of the holding company. The other issues raised by the Revenue are also not found relevant for deciding the question before us. Accordingly, the information regarding manner of utilization of sale proceeds, copy of valuation report of shares of BD Singapore, copy of loan agreement between applicant and BS USA and the source of the loan etc., all become inconsequential and no adverse inference can be drawn if the details of the same are not provided by the applicant.

  We find that the investment was made out of the funds emanating from the applicant, the investment was held for a period of over 15 years during which the business operations in India was carried on and which continued even after the exit, there was continuous generation of taxable revenue in India and thus the applicant fulfils the conditions as laid out above. In fact the hon'ble Supreme Court had observed in that case that the funds coming from Mauritius were not originating from that country but from third nations, still the structure as set up cannot be considered to be a set up for tax evasion. The apex court further held that the Revenue cannot deny the benefits of transfer of shares by alleging that the Mauritius company was merely a conduit and the US company was the actual beneficial owner of the shares.

  We do not have any adverse finding and we are inclined to accept the plea of the applicant that it was not a benami or set up for tax avoidance as a colourable device and only for treaty shopping, which in any case is not taboo. It is not in dispute that the applicant is a tax resident of Mauritius, possesses a valid tax residency certificate granted by the Mauritius tax authorities and would be covered under the India-Mauritius DTAC

  The tax treaty between India and Mauritius was originally signed in 1983 which provided a capital gains tax exemption to a Mauritius resident on transfer of Indian securities. The availability of capital gains tax exemption under the Indo-Mauritius Treaty was challenged in courts which had resulted in the Government issuing Circular No. 789 assuring investors the benefits of capital gains exemption under the treaty and which was upheld by the Supreme Court in the Azadi Bachao Andolan case [2003 (10) TMI 5 - SUPREME COURT]

  As per article 13(4) of India-Mauritius DTAC that the capital gains derived by the resident of a Contracting State from the alienation of any property other than those mentioned in paragraphs 1, 2 and 3 of the article shall be taxable only in that State. The shares and securities are not specified in clauses 1, 2 and 3 of the article 13. Therefore, any gain arising on sale of shares is liable to tax only in the State in which the person alienating the shares is resident. In the instant case the applicant is resident of Mauritius and accordingly the capital gain arising on transfer of shares of BD India is liable to tax in Mauritius only. We, therefore, uphold the contention of the applicant that by virtue of article 13.4 of India-Mauritius DTAA, capital gain tax is not liable to be charged in India.

  The applicant is not liable to pay capital gains tax in India in respect of the transfer of shares held in BD India to BD Singapore having regard to the provisions of India-Mauritius DTAA.

  Question 1 as answered - The capital gains on the sale of shares of Becton Dickinson India Private Limited by the applicant to Becton Dickinson Holdings Pte. Ltd. would not be chargeable to Income-tax in India in the hands of the applicant, having regard to the provisions of article 13 of the India-Mauritius Tax Treaty.

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• 2019 (9) TMI 1548 - SUPREME COURT
  

  Institutionalization of arbitration in India - insertion of sub-section (6-A) to Section 11 of the Amendment Act, 2015 - HELD THAT:- The law prior to the 2015 Amendment that has been laid down by this Court, which would have included going into whether accord and satisfaction has taken place, has now been legislatively overruled. This being the position, it is difficult to agree with the reasoning contained in the aforesaid judgment as Section 11(6A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense.

  Application disposed off.

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• 2019 (9) TMI 1547 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
  

  Liquidation of Corporate Debtor - Section 33(1)(a) of Chapter III of I&B Code, 2016 - HELD THAT:- Since no Resolution Plan is received by this Authority under Sub-section (6) of Section 30 of the I&B Code, 2016, before the expiry of the Corporate Insolvency Resolution Process period of 180 days, the Corporate Debtor has to be ordered for Liquidation.

  This Authority hereby orders for liquidation of the Corporate Debtor viz., M/s. Gold King Tex India Private Limited which shall be conducted in the manner as laid down in Chapter III of part II of the 1&B Code, 2016 - Application allowed.

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• 2019 (9) TMI 1546 - ITAT AHMEDABAD
  

  Revision u/s 263 - claim of deduction u/s 10A of the Act before setting off brought forward losses - HELD THAT:- Hon’ble Jurisdictional High Court in INDUSA INFOTECH SERVICES (P.) LTD. [2013 (9) TMI 1150 - GUJARAT HIGH COURT] held that the deduction u/s 10A has to be allowed before set off of unabsorbed loss and depreciation of non-eligible business unit of assessee.

  We find no justification in such order passed by the Learned PCIT who has not taken into consideration this particular aspect of the matter though the same was brought to his notice by the assessee by and under reply dated 21.03.2016 hence relying upon the ratio laid down above, we find no justification in the order impugned before us which has re-opened the issue u/s 263 of the Act whereas, we find that the order passed by the Learned AO is just and proper and in terms of the ratio laid down by the Jurisdictional High Court. There is nothing erroneous found in the order of the Learned AO, neither it is prejudicial to the instant of the Revenue. None of the conditions is being fulfilled by the order passed by the Learned PCIT in order to invoke the provision of section 263 of the Act in order to reopen the assessment of the appellant company. Hence, the order impugned is being devoid of any merit and thus quashed. Assessee’s appeal is allowed.

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• 2019 (9) TMI 1545 - ITAT MUMBAI
  

  Depreciation u/s 32 on Concession Rights Toll by treating the same as intangible assets - whether the CIT(A) is right in concluding that the assesses claim for depreciation on “license to collect toll”, being an intangible asset, falling within the scope of Sec. 32(1)(ii)? - HELD THAT:- We find that in case of Progressive Construction Ltd.[2017 (3) TMI 1167 - ITAT HYDERABAD] had concluded, that where an Infrastructure Development company which had constructed a road on build, operate and transfer (BOT) basis on the land owned by the Central Government, gets vested with a right to an intangible asset under Explanation 3(b) r.w. Sec.32(1)(ii), the assessee would be eligible to claim depreciation on such asset as per the specified rate. Apart there from, it was observed by the Tribunal, that where the assessee had never claimed expenditure incurred for construction of the road on build, operate and transfer (BOT) basis, as a deferred revenue expenditure, the same could not have been amortized in terms of CBDT Circular No. 9 of 2014, dated, 23.04.2014.

  Thus the issue as to whether an Infrastructure Development company which had constructed a road on build, operate and transfer (BOT) basis on the land owned by the Central Government would be eligible for claim of depreciation in respect of its intangible rights i.e “right to collect toll” under Sec. 32(1)(ii), is squarely covered by the aforesaid order of the “Special bench‟ of the Tribunal in the case of ACIT, Circle 10(2), Hyderabad, Vs. Progressive Construction Ltd. [2017 (3) TMI 1167 - ITAT HYDERABAD] and also the orders of the coordinate benches of the Tribunal viz. (i) DCIT, Circle-9(1)(2),Mumbai Vs. M/s Atlanta Ltd. Mumbai [2018 (2) TMI 1514 - ITAT MUMBAI] and (ii) ACIT Vs. M/s PNG Tata Ltd. [2019 (8) TMI 347 - ITAT CHENNAI] - Decided in favour of assessee.

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• 2019 (9) TMI 1544 - CESTAT NEW DELHI
  

  Refund of Excise duty - applicability of principles of unjust enrichment - EPCG licence holders qualify as deemed export under Foreign Trade Policy - HELD THAT:- The findings of Court below is in gross violation of Section 12B of the Central Excise Act, which provides, “every person, who has paid duty of excise on any goods under this Act, shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods.” - this presumption is not available to the Revenue, in the facts and circumstances of the present case, as admittedly, the goods were cleared during the periods 2007-2008 to 2010-2011. Whereas the duty, has been deposited at the inquiry stage in the financial year 2011-2012. Further, admittedly, in the invoices for clearances under EPCG licence, no duty has been charged and rather in the Duty column, it is clearly mentioned that the duty is not payable as the goods have been cleared under EPCG licence giving the licence number and its date.

  The appellant has led sufficient and cogent evidences in the form of Chartered Accountant’s certificate, copies of their balance sheet for the relevant period as well as supporting evidences from some of the buyers, from which it is evident that they have not passed on the duty to the buyers of the goods - the Court below has erred by observing that the appellant has not shown the refund receivable in their balance sheet on the Asset side.

  Appeal allowed - decided in favor of appellant.

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• 2019 (9) TMI 1543 - CESTAT NEW DELHI
  

  Classification of goods - resin rubber sheet for soles and heels - to be classified under Heading No. 4008 21 10 or under Chapter sub-heading 4008 29 10? - HELD THAT:- This Tribunal in the case of Pololight Industries Ltd. v. CCE Vapi [2009 (2) TMI 493 - CESTAT, AHMEDABAD] where co-ordinate Bench of this Tribunal has already laid down a principle that if the principal use of non-cellular rubber plates, sheets and strips are in manufacture of soles, heels, or soles and heals combined for footwear, same need to be classified under specific heading which have been provided under Chapter sub-heading 4008 21.

  In the present case, since the goods have been confirmed to be non-cellular rubber same cannot be classified under CETH 4008 29 because of the fact that there is a specific classification of non-cellular rubber sheets under CETH 4008 21 10 - since the Senior Asstt. Director of IRMRA is not an expert person to decide classification of the product under Central Excise Tariff Act, we are of the view that the classification given by him under Central Excise Tariff Heading No. 4008 29 10 is in contradiction to the findings of the test report since the test report very categorically says that it is of non-cellular rubber in the form of sheets. These sheets as per the claim of respondent-manufacturer are primarily used in manufacture of soles, heals or soles and heals combined for footwear, the correct classification of the product as discussed above falls under CETH 4008 21 10, which have rightly been classified by the respondent-manufacturer.

  Appeal dismissed - decided against Revenue.

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• 2019 (9) TMI 1542 - CESTAT CHANDIGARH
  

  Valuation - waste arising during the course of manufacture of DOPB films which were captively used by the appellant for manufacture of reprocessed granules - exemption under Rule 8 of Valuation Rules, 2000 - HELD THAT:- W.e.f. 1-12-2013, there is a change in the provision of Rule 8 of the Valuation Rules and as per the said amendment, the appellant is required to pay the duty on the basis of cost of production + 10%. Admittedly, whatever duty is paid by the appellant same is entitled for Cenvat credit, therefore, it is a revenue neutral situation. Moreover, the appellant claim is that they are entitled as exemption of Notification No. 67/95, dated 16-3-1995 and as per Rule 6 of Cenvat Credit Rules, 2004, the appellant is paying 6% of the value and exempted reprocessed granules (as they are not maintaining separate account of re-issued in manufacture of DOPB films which are not exempt from duty) the benefit of exemption under Notification No. 67/95 cannot be denied on the ground that such waste and scrap is used in manufacture of exempted granules.

  The appellant has paid the amount @ 6% of exempted granules used captively for manufacture of reprocessed granules which were partly cleared on payment of 6% of the value of exempted goods or used in manufacture of DOPB films and is entitled for benefit of exemption of Notification No. 67/95, dated 16-3-1995 - There are no merit in the impugned order, the same is set aside.

  Appeal allowed - decided in favor of appellant.

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• 2019 (9) TMI 1541 - ITAT MUMBAI
  

  Deduction u/s.35AC on account of donation given by the appellant - During the course of search, one of the trustees accepted that all the expenses were bogus and the donations received in cheques were returned in cash to all the donors after deducting nominal commission - HELD THAT:- After the assessee has adduced evidence to establish prima facie the payment of donation to Navjeevan Charitable Trust, the onus shifted to the AO. However, the AO failed to conduct any inquiry before making disallowance of the above claim of the assessee. The AO has not brought on record that donation given by the assessee was subsequently returned back in cash, except a mere bald statement in the assessment order ‘that survey action conducted on some of the donors have conclusively proved that the Trust indeed returned the donation in cash’. The AO has not found any fault in the documents filed by the assessee during the course of assessment proceedings.

  In CIT v. A And A Bakery P. Ltd.[2007 (3) TMI 235 - DELHI HIGH COURT] it is held that “it is for the taxpayer tp prove the expenditure claimed by him, But the burden will shift, where the assessee had produced prima facie evidence as payment by cheque, so that no further proof may be expected. Disallowance prompted by mere suspicion in such cases was held unjustified.

  We delete the disallowance made by the AO. Facts being identical, our decision for the AY 2009-10 applies mutatis mutandis to AYs 2012-13 & 2014-15. - Decided in favour of assessee.

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• 2019 (9) TMI 1540 - BOMBAY HIGH COURT
  

  Dishonor of Cheque - issuance of notice to applicant who resigned from his post and ceased to be Director - HELD THAT:- The NI Act draw a succinct distinction between the provisions of Section 138 and Section 141. Merely because a Director of a Company can be vicariously held liable for the offence committed by the Company by relying on Section 141 of the Act, the plain reading of Section 138 and sub-Sections (b) and (c) appended to the proviso do not admit of a situation where it is a requirement of drawee issuing a notice to every Director of the Company who was in carge and responsible to the Company for conduct of its business. This requirement of issuance of notice to an individual Director in terms of sub-clause (b) of proviso to Section 138 cannot be read into the said provision. Merely on an assumption that when a notice is issued to the Director and then the Director would necessarily inform the Company of such a notice being received, do not make it imperative for a drawer to issue a notice to any other person other than the drawer of the cheque.

  It is settled position of law that when a statute requires a particular thing to be done in a particular manner, then that must be performed in the same manner and not in any other manner. In such circumstances, in the absence of the notice being issued to the Company, which is the drawer of the cheque in question, the invocation of proceedings under Section 138 of the NI Act must necessarily fail in the absence of the statutory compliance of sub-clause (b) of the proviso appended to Section 138. In any contingency, the Applicant is also entitled to avail the benefit under Section 141 of the NI Act since it is an admitted position that he was not a Director, and, therefore, not in control of the affairs of the Company on the date when the cheque was presented i.e. on 31/01/2017 and on the said date, he had already ceased to be the Director of the Drawer Company. In the absence of the drawer i.e. the Company being issued with a notice as contemplated in Clause (b) of proviso to Section 138 before initiation of complaint under Section 138, the impugned order cannot be sustained.

  Application allowed.

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• 2019 (9) TMI 1539 - GUJARAT HIGH COURT
  

  Permission for withdrawal of petition - HELD THAT:- The petitioner shall file reply to the impugned show cause notice on or before 23.09.2019. It is clarified that the Court has not gone into the merits of the case and it will be open for the petitioner to raise all the contentions as may be legally permissible. It is expected that the respondent authority shall consider the reply filed by the petitioner in accordance with law.

  Petition dismissed as withdrawn.

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• 2019 (9) TMI 1538 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI
  

  Payments of claims of other secured creditors - claim of the Applicants is based on an unregistered sale agreement - properly stamped documents or not - acknowledgement letter - admissible as evidence in the absence of entry in the Books of Account of the Corporate Debtor or not? - HELD THAT:- An identical issue as framed above, has come up for consideration before the Hon ble High Court of Madras in the matter of N. MUTHUKUMAR VERSUS M. KARUPAPIAH, P.R. RAJESH KUMAR, S. SATHEESHKUMAR [2018 (2) TMI 2034 - MADRAS HIGH COURT], wherein a suit was filed only for recovery of money paid under unregistered sale agreement. In the said case the issue under consideration in the revision petition filed before the Madras High Court was that unregistered sale agreement is not sufficiently stamped and is compulsorily required registration, therefore, the same is inadmissible in evidence. The Hon 'ble high Court of Madrasa has held that as per Article 5 0) of the Schedule I of the Indian Stamp Act, the stamp duty for the sale agreement is ₹ 20/- and unregistered sale agreement was written on ₹ 20/- stamp paper, which was held to be sufficiently stamped.

  In the case on hand the sale agreement dated 02.08.2016 is written on the non- judicial stamp paper of ₹ 100/- which as per Article 5 (j) of Schedule I of the Indian Stamp Act, 1899 is held to be sufficiently stamped and even if the same is unregistered, it is admissible in evidence for collateral purpose i.e. for proving the payment of ₹ 15,00,00,000 (15 Crores) by the Applicant/ Financial Creditor to the Corporate Debtor. This fact is also corroborated by the 'claim acknowledgement letter' dated 02.08.2016. Moreover, this authority has also noted that a communication dated 22.07.2016 was sent by the Managing Director to Indian overseas Bank, which goes to state that the Managing Director has identified an investor, who is willing to pay bank dues and immediately thereafter on 02.08.2016 the sale agreement was executed between the Applicant/finical creditor and the Corporate Debtor represented by the Managing Director and Director. This fact seems to have co-relation with the purpose of execution of the sale agreement. The purpose of sale agreement was the payment of dues of Indian Overseas Bank to the tune of ₹ 15,00,00,000/- (15 Crores), which was agreed to be paid by the Applicant as mentioned in the sale agreement.

  The exercise under taken by the Resolution Professionals to reject the claim of the Applicants / Financial Creditors is without any basis. Moreover, the Resolution Professional(s) has no adjudicatory power for deciding the issue pertaining to the claim made - the Applicants are held entitled to their claim to the tune of ₹ 15,00,00,000 (15 Crores) as financial debt.

  This authority takes judicial notice that during the pendency of this Application, the Resolution Plan came to be approved by the COC, which has been filed before this authority under Section 30(6) read with Section 31(1) of the IBC, 2016. In view of this order, the Resolution Professional is directed as follows:-

  a). to treat the Applicants at par with other unsecured financial creditors and make the appropriate provision for payment to which they are entitled, in consultation with the COC and the Resolution Applicant, and file the supplementary affidavit to that effect before this authority, or

  b). to withdraw the Resolution Plan and constitute the COC afresh to get the Resolution Plan(s) approved with suitable modifications, as may be required.

  Application disposed off.

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• 2019 (9) TMI 1537 - CHHATTISGARH HIGH COURT
  

  Condonation of delay in filing of revision - HELD THAT:- Upon due consideration, application is allowed.

  Delay is condoned. Issue notices to the respondents on payment of PF as per rule - List this case after service on notice.

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• 2019 (9) TMI 1536 - CESTAT MUMBAI
  

  Refund of CENVAT Credit - input services - Travel Agent Services - Club/Association Membership - Sponsorship Services - denial on the ground that the said services has no nexus with the export of service - HELD THAT:- Tribunal’s decision in same assessee’s case laying down that the said service has nexus with the export of services being undertaken by the appellant reported at KKR India Advisors Pvt Ltd. v. CCGST, Mumbai Central [2018 (6) TMI 797 - CESTAT MUMBAI] where it was held that All the services disputed by the Commissioner (Appeals) are admissible input services, hence the credit is available.

  Appeal allowed - decided in favor of appellant.

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• 2019 (9) TMI 1535 - MADHYA PRADESH HIGH COURT
  

  Winding of company - Appointment of Official Liquidator - notice not given to the company and give a reasonable opportunity to it to make its representations - appellant is not afforded any opportunity of hearing, nor the reasons are recorded - HELD THAT:- In the case at hand as evident from the impugned order that no application seems to have been filed by the petitioner for appointment of Liquidator. It is merely on information that the Liquidator has not been appointed, learned Company Judge has directed for appointment of Liquidator. Sub-section (2) of Section 450 of Act, 1956 no doubt does empower the Company Judge to appoint a provisional liquidator even without issuing notice to the Company Concerned, however, for that incumbent it is for the Company Judge to have recorded reasons which are conspicuously absent in the case at hand.

  Further contention on behalf of respondent that the procedure prescribed under section 450 of 1956 Act and the Rules applies at initial stage of proceedings is taken note of and rejected at the outset. Fair reading of section 450 of 1956 Act does not contemplate that pendency of the petition under sections 433 and 434 of 1956 Act, the procedure is to be given a go bye - when the impugned order dated 8.7.2019 is tested on the anvil of the stipulations contained under section 450 of the Act, 1956 the same is not sustainable in the eyes of law, accordingly set aside.

  Appeal allowed.

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• 2019 (9) TMI 1534 - ITAT DELHI
  

  Reopening of assessment u/s 147 - ITO jurisdiction to issue notice - HELD THAT:- It is not in dispute that reasons for reopening of the assessment have been recorded in this case by ITO, Ward 2(3), Noida, who was having no jurisdiction over the case of the assessee. When assessee filed letter before ITO, Ward 2(3), Noida on 07.09.2017 stating therein that return filed originally may be treated as return having filed in response to notice u/s 148 of the Act and is also supported by copy of acknowledgment of return filed originally, the ITO, Ward 2(3), Noida transferred this case to ITO, Ward 2(1), Faridabad, vide letter dated 07.09.2017 (PB 10). The AO while completing the assessment in this case has taken the shelter of provisions of section 129 of the Act. However, the said provision is not applicable because it is a matter of assumption of valid jurisdiction in the matter or to validly initiate the reassessment proceedings against the assessee.

  It is not a case of succession to exercise jurisdiction by one ITO to another ITO. Since, reasons have been recorded for reopening of the assessment by ITO, Noida who was not authorized to do so, therefore, mere recording of reasons for reopening of the assessment by him is of no consequence and has no value under the law. The AO who has jurisdiction over the case of assessee i.e. ITO, Faridabad admittedly did not record any reasons for reopening of the assessment. Therefore, the issue is covered in favour of the assessee by order of ITAT Agra Bench in the case of S N Bhargawa [2013 (10) TMI 512 - ITAT AGRA]

  Assumption of jurisdiction u/s 147/148 of the Act is illegal and bad in law and, as such, liable to be quashed. Accordingly, set aside the orders of the authorities below and quash the reopening of the assessment u/s 147/148 of the Act. Resultantly the entire addition stands deleted. - Decided in favour of assessee.

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• 2019 (9) TMI 1533 - CESTAT HYDERABAD
  

  Penalty u/s 114A of Customs Act - non-inclusion of demurrage charges in the assessable value for the purpose of calculating customs duty itself - suppression of facts or not - HELD THAT:- The inclusion of demurrage charges itself has been struck down by the Hon’ble High Court of Orissa in TATA STEEL LTD. AND ORS. VERSUS UNION OF INDIA AND ORS. [2019 (10) TMI 226 - ORISSA HIGH COURT], as ultra vires of constitution/section 14 of the Customs Act. Therefore, even if they had not included nor paid the customs duty on such amount they cannot be faulted. Therefore, the penalty imposed under section 114A is not sustainable and is liable to be set aside.

  Penalty set aside - appeal allowed - decided in favor of appellant.

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• 2019 (9) TMI 1532 - CESTAT MUMBAI
  

  Recovery of allegedly ineligible credit from the recipient of credit - CENVAT Credit - utilization of distributed credit - exempt goods/services - area based exemption - retrospective applicability of the Explanation incorporated in 2011 - gap between the availment of ineligible credit and the utilization of pooled, distributed credit for discharge of tax liability - HELD THAT:- CENVAT credit is the bridge that reconciles the charging provision and the valuation provision of the taxing statute. In interpreting the various aspects – real, normal and transaction – of value that were subjected to duties before and after 1975 or after 2000, the Hon’ble Supreme Court has held that valuation, being only a measure of the levy, is not controlled by the charging provision and that legislative competence to prescribe the time and extent may accommodate administrative convenience - The decisions in UNION OF INDIA & ORS. ETC., ETC. VERSUS BOMBAY TYRE INTERNATIONAL LTD. ETC., ETC. [1983 (10) TMI 51 - SUPREME COURT] and COMMISSIONER OF CENTRAL EXCISE, INDORE VERSUS M/S GRASIM INDUSTRIES LTD. THROUGH ITS SECRETARY [2018 (5) TMI 915 - SUPREME COURT] are seminal enough to warrant, for our purpose, mere reference without alluding to the significant portions. Propriety notwithstanding, and tempting though it may even be to the executive branch of government, the cascading effect of such measure on business, and the ultimate consumer, compelled the incorporation of some neutralizing mechanism - The scheme of CENVAT credit restricts the actual collection to the value of contribution to the product emanating or service offering from the assessed entity which is the unambiguous intent of the charging provision. From the one-on-one correspondence of pro forma credit to the general pooling of CENVAT credit, the thread of continuity lies in this bridging intent.

  Among the various perspectives of CENVAT credit, the two which predominate, and have coloured, the disputes are, in the eyes of the tax advisors, that it is a mirror of, and substitute for, the account current and, from the standpoint of the tax administrator, that it is an exemption scheme. In our opinion, such constricted appreciation is akin to describing the Taj Mahal as a spiffy looking tomb; not only is such perspective flawed in capturing the spirit of neutralization but also fails the test of statutory calibration. Even if the accumulated credit is acknowledged as an instrument for discharge of duty liability, it lacks the flexibility of the account current as a pool of money. The scheme is notified under the general rule making powers conferred by the taxing statute on the Central Government and not by recourse to the specific power of exemption in the respective statutes - The appellant-assessee is a recipient of credit that is assigned by the distributor who, undisputedly, has borne the incidence of tax on procured services. It is the distributor who can be charged with awareness of exempted output/output service, if any, and who is empowered by the statute to take the credit. And it is only such availment by the distributor that can be put to notice for ineligibility as espoused in the decisions that fulfill the criteria of precedent.

  Even if the ‘input service distributor’ was unable to establish its claim to avail the credit of tax paid on the different services and, thereby, to deprive the utilization of such, the entity to be subject to recovery proceedings remains unidentified in the Rules. It would be a grave travesty to leave such identification to the adjudicating authority. Indeed, the different decisions highlight the inability of the several adjudicating authorities to arrive at a consensus. In this circumstance, there may have been no need to fill the gap - In the circumstances of the Rules having failed to isolate the target of recovery which cannot be read into in the absence of any indication of legislative intent, it cannot be left to be taxed administrator to substitute for such legislative intent, the impugned orders will not sustain.

  Appeal allowed - decided in favor of assessee.

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• 2019 (9) TMI 1531 - CESTAT MUMBAI
  

  Supply, and/or installation, of ‘transmission towers’ - 35 contracts entered into by the assessee with electricity distribution authorities - between 1st October 2004 and 31st March 2009 - Benefit of N/N. 12/2003-ST dated 20th June 2003 - HELD THAT:- It is seen that the adjudicating authority has accepted the computation of tax liability of ₹ 49,12,81,797 pertaining to the tax discharged under two of services existing prior to 1st June 2007. For the period between May 2007 and March 2009, total billing of ₹ 538,80,93,109 was, after abatement of value of goods/materials amounting to ₹348,39,74,000, was reduced to ₹ 190,41,19,109 on which tax of ₹ 353,49,122 was held as liable.

  With the decision of the Hon’ble Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], the legality of levy of tax on composite contract, by recourse to entry for services simpliciter that existed prior to incorporation of section 65(105)(zzzza) of Finance Act, 1994, was negated. The eligibility to discharge tax under Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 on contracts that were in existence even before 1st June 2007 has been approved by the Tribunal in M/S B.R. KOHLI CONSTRUCTION PVT. LTD. VERSUS CST, NEW DELHI [2017 (4) TMI 38 - CESTAT NEW DELHI] where it was held that subject to fulfilment of the conditions, the appellants are eligible to discharge service tax on such works contract, after 1-6-2007, in terms of composition scheme of 2007.

  The charging of differential tax by denial of eligibility for the composition scheme is not correct in law - even on the ground of proper discharge of liability without recourse to the notification issued under section 11 C of Central Excise Act, 1944, the demand fails - Appeal allowed - decided in favor of appellant.
  

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• 2019 (9) TMI 1530 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA BENCH
  

  Seeking restoration of the name of the Company in the Register of Companies maintained by the Respondent, Registrar of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- The Company was carrying on business and was in operation on the date of striking off of its name from the Register. However, the reason of admitted default in statutory filing for the F.Y. 2012, 2013 and 2014 that it were not made because of the Company had hired one employee, who was made responsible for dealing in compliance matters of the Company, however, he did not disclose this fact to the Company and after two-three years he resigned and left the service, he did not reveal this fact to the directors of the Company is not tenable.

  Though it has been submitted by the Respondent that it had issued notice under section 248 of the Act, however, it has not produced a copy of the notice claimed to be issued, proof of delivery of the notice, tracking report or any such document to support its contention. It is thus not established that the Respondent had complied with the statutory requirement under the said Act, before striking off the name of the Company.

  Where it is clear that the Company was in operation at the time of striking off and it continues to be in operation, even though the reason given for not filing the Annual Return and Balance Sheet for the said Financial Years, and due to lack of proof and strong opposition from the side of Respondent, the Application deserves to be allowed - Application allowed.

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