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Showing 341 to 360 of 23051 Records
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2019 (12) TMI 1348
Refund Claim of CENVAT Credit lying unutilized - Doctrine of unjust enrichment has not been fulfilled - no provision under section 11B of the Central Excise Act, 1944/ Rule 5 of the CENVAT Credit Rules, 2004 to sanction Refund in cash of the unutilized CENVAT Credit lying in CENVAT account on closure of the unit - HELD THAT:- As per clause (c) to proviso of Section 11B (2) of the 1944 Act, refund of credit of duty paid on inputs is admissible and only condition is that inputs must be used in accordance with Rules and Notifications issued under the 1944 Act. As per scheme of the Act and Cenvat Credit Rules, 2004 credit of duty paid on inputs is permissible subject to various conditions like inputs must be used directly or indirectly in the manufacture of finished goods; finished goods should be dutiable; inputs must be accompanied with duty paying invoice etc. - In the case in hand, the Appellant-Revenue is not disputing entitlement of credit of duty paid on inputs and dispute is confined to refund of credit already availed and unutilized, thus Respondent-Assessee is entitled to refund of unutilised credit of duty paid on inputs.
The Assessee-Respondent has claimed refund of Cenvat Credit which could not be utilised. It is not case of refund of duty paid on finished goods; or duty paid on inputs which formed part of cost of purchase and party did not avail Cenvat Credit. Situation could be different, had it been a case where Assessee did not avail Credit and claimed refund on the ground that duty was paid by mistake. It is case where over the period Respondent took credit of duty paid on inputs but could not use at the time of sale of finished goods.
Appeal dismissed.
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2019 (12) TMI 1347
Classification of export goods - Cotton/Polyester Woven Ladies Top/Tunic Top - classifiable as’ Cotton Woven Ladies’ Blouse under HS Code 6206.30 or otherwise? - argument of the appellant is based on the certification given by Textile Committee and the clarification given vide Public Notice 22/2012 dated 06/07/2012 issued by New Delhi - HELD THAT:- Appellant submit that their request for sending the goods for examination to Textiles Committee or any Agency was not accepted. Textile Committee report was not considered stating that the sample was not drawn by the department and were drawn by the appellant themselves. We find that this approach is incorrect. The department should have got the goods tested in the first place before coming to a conclusion. They could have at least sent samples at least on the request of the appellant. Both having not been done, Revenue can not brush aside the report given by an expert committee simply for the reason that sample was not drawn and referred by the Department - Department has not adduced anything to counter the report of the Textiles Committee. Revenue has not proved that the sample sent to Textile Committee was not representative of the impugned goods. Moreover, the classification suggested by the Public Notice supports the appellants claim. Here too, Revenue did not prove that the description of the impugned goods did not match with the description of goods at Sl.No.4 of the Public Notice.
Though the Public Notice is issued by another Custom House, it can be used as a reference. The Public Notice along with the Textile Committee report support appellants claim. Therefore, the allegation of mis-declaration is not substantiated - Appeal allowed - decided in favor of appellant.
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2019 (12) TMI 1346
Permission for withdrawal of appeal - Refund of accumulated input tax credit of CGST & IGST paid - export of goods without payment of Integrated Tax during the month of July 2017 - HELD THAT:- The appellant has now requested to allow them to withdraw their appeal - Since, the appellant has requested to allow them to withdraw their appeal, they are allowed to withdraw their appeal - appeal dismissed as withdrawn.
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2019 (12) TMI 1345
Refund of unutilized ITC - Rejection on the ground that the appellant had already debited the entire ITC of inputs in their electronic ledger that had been claimed in the refunds claims and some amount out of that amount, were rejected by the adjudicating authority - month of July 2017, August, 2017, September, 2017, October, 2017 and November, 2017 separately - Rule 93 as well as Circular 17/17/2017 - HELD THAT:- The adjudicating authority was required to allow the re-credit of the amount already debited to the extent of rejection, but the adjudicating authority has not allowed the re-credit. The provisions do not stipulate that in the case of non submission of invoices etc., the re-credit should not be allowed. Thus, the impugned order to the extent of not allowing the re-credit of the amount already debited by the appellant, to the extent of rejection without allowing the proper opportunity to present his case is not legally correct and therefore, the impugned orders is set aside to that extent and direct the adjudicating authority to allow the appellant to present his case regarding not allowing re-credit of the amount already debited to the extent of rejection - Further, the department is free to take appropriate action as per law to recover the ITC of inputs if the appellant had availed ITC on inputs without having proper documents/invoices etc.
Recovery of excess amounts sanctioned provisionally for the refund claim file for the month September, 2017 and October, 2017 - appellant has contested that amount cannot be recovered when the re-credit was admissible - HELD THAT:- The contention of the appellant is not acceptable as sanction of refund in cash and allowing of re-credit in the electronic register cannot be considered as same thing. Since, the amount was excess sanctioned in cash; the same is recoverable in cash along with interest. However, the re-credit to the appellant is admissible.
Appeals disposed off.
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2019 (12) TMI 1344
Permission for withdrawal of appeals - Refund of accumulated credit - export of finished goods - deficiency memo served alleging therein that the Value as per GST-1, GSTR-3B and RFD-01A is mismatched and advised them to apply fresh refund application after rectification of above deficiency - HELD THAT:- The appellant has now requested to allow them to withdraw their appeals. Since, the appellant has requested to allow them to withdraw their appeals, their appeals are allowed to be withdrawn - appeals dismissed as withdrawn.
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2019 (12) TMI 1343
Maintainability of appeal - Jurisdiction of appellate authority - Demand of GST and penalty - rejection of E-way Bill - rejection on the ground that E-Way Bill Part B is not generated - HELD THAT:- The adjudicating authority Sh. J.I. Patel, State Tax Officer-I, Mobile Squad, Amirgadh (Gujarat) has passed the impugned order On 22.08.2018 which is not in the jurisdiction of this appellate authority. Section 6(3) of the CGST Act specifically mandates that any proceedings for rectification, appeal and revision, wherever applicable, of any order passed by an officer appointed under CGST Act shall not lie before an officer appointed under the SGST or UTGST Act. Similar provisions exist in SGST/UTGST Act also. In this case, appeal shall lie before the jurisdictional authority of SGST, Gujarat.
The appeal filed by the appellant dismissed for the reason being beyond jurisdiction of this appellate authority.
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2019 (12) TMI 1342
Refund of IGST paid - export of services - rejection of refund on the ground that the appellant has not submitted the Foreign Inward Remittance Certificates - HELD THAT:- The appellant had exported the service on payment of IGST and claimed the refund of IGST paid on export of services. Rule 89(2) (c) of CGST Rules 2017 stipulates that the refund application shall be accompanied by the documentary evidences - from the clarification issued by CBEC vide para no. 12 of Circular no. 37/11/2018-GST dated 15.03.18, it is ample clear that a' statement containing the number and date of invoices and the relevant Bank Realization Certificates (BRC) or Foreign Inward Remittance Certificates (FIRC) is required in case of export of services. Though the appellant vide their submission dated 22.01.19 has now submitted the statement containing the number and date of invoices but they have not submitted the Bank Realization Certificates (BRC) or Foreign Inward Remittance Certificates (FIRC) in this regards.
The appellant vide their letter dated 04.02.19 has submitted to this office the unsigned three inward payment customer advice dated 24.01.2019 issued by Standard Chartered - On perusal of these advices, it is found that no references in respect of invoice no. are available. Besides it, in all these advices, in the Column of Remittance Amount, USD 100.00 only are mentioned whereas as per statement of invoice submitted by the appellant, invoice amount in USD 23250 is in one invoice and invoice amount USD 31850 is in the another invoice. Therefore, these inward payment customer advice dated 24.01.2019 issued by Standard Chartered can not be accepted as Bank Realisation Certificates (BRC) or Foreign Inward Remittance Certificates (FIRC).
Appeal dismissed - decided against appellant.
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2019 (12) TMI 1341
Rejection of refund for Central Excise duty paid on the goods cleared by various invoices - impugned goods returned as rejected from registered buyer under Section 142(1) of the CGST Act, 2017 - refund rejected on the ground that the identity of returned goods/rejected goods cannot be identified with the goods sent originally to the receiver by the appellant - rejection also on the ground that receiver of goods who returned the goods are registered with GSTIN and therefore they were required to return the rejected goods to the appellant as supply in terms of section 142(1) of the CGST Act, 2017.
HELD THAT:- There is a basic condition that the goods are identifiable to the satisfaction of the proper officer. But in the instant matter, the records have been so maintained that the proper officer is not in a position to ascertain the factual identification of returned goods from the records maintained by the appellant. The appellant has also failed to put forth any reasons as to when the subject goods were initially removed in the unit quantity as "Nos" then why the entry of said returned goods in their register have only been made in the unit quantity as "weight in MT". Thus this also creates a doubt - Therefore, there are no force in the contention of the appellant and hold that the appellant has in all fronts failed to establish that the goods are identifiable to the satisfaction of the proper officer.
Rejection of refund claims also on the reason that the receiver of the goods are registered with GSTN and therefore they were required to return the rejected goods to the appellant as supply in terms of section 142(1) of the CGST Act, 2017 - HELD THAT:- The appellant has not disputed the findings of the adjudicating authority that the receiver of goods namely M/s Damodar Valley Corporation are registered with GSTN bearing GSTN-20AABCD0541MIZ5 and M/s Neyveli Lignite Corporation Limited are registered with GSTN bearing GSTN-33AAACN1121C1ZG. Therefore, the contention of the appellant is not acceptable in view of the clear provision of law which stipulates that the registered person shall be eligible for refund of the duty paid under the existing law only where such goods are returned by a person, other than a registered person. But in the instant matter the goods were returned by the registered person, therefore refund is not admissible in the instant matter on this reason also. Besides, the proviso to section 142(1) of the Act provides that if the said goods are returned by a registered person, the return of such goods shall be deemed to be a supply. The goods returned by M/s Damodar Valley Corporation or by M/s Neyveli Lignite Corporation Limited who are registered person, should be treated as 'Deemed Supply' in their hands in terms of proviso to section 142(1) of the CGST Act, 2017. M/s Damodar Valley Corporation or by M/s Neyveli Lignite Corporation Limited were required to charge GST on the Deemed Supply.
Appeal dismissed - decided against appellant.
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2019 (12) TMI 1340
Request for adjournment of the case - Ld. Counsel for the Operational Creditor appears - Ld. Sr. Counsel for the Corporate Debtor appears - HELD THAT:- As requested adjourned to tomorrow, i.e., 17/12/2019 for hearing in the Priority List.
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2019 (12) TMI 1339
Validity of reopening of assessment - reopening on the basis of audit objections raised by the Department audit officer - non Independent application of mind - no interest was charged on debit balance of the partner's (Shri Apurva Jagdish Nanavati) capital account - CIT-A quashed reopening notice - HELD THAT:- CIT(A) has passed a very reasoned and detailed order wherein it has been stated that AO himself has not accepted the audit objection and thus on the basis of same reason the AO could not have reason to believe that income has escaped assessment. CIT(A) has held that AO has acted at the behest of the audit party without applying his own mind and thus quashed the assessment on the technical and legal issue.
In the case of ICICI Home Finance Co. Ltd. vs. ACIT [2012 (8) TMI 312 - BOMBAY HIGH COURT] has held that there was no application of mind by the AO as the reasons recorded by the AO were identical to objections of the audit party and existing material was already on record and accordingly notice under section 148 was held to be without jurisdiction. Supreme Court in the case of Pr. CIT vs. S. Chand & Co. Ltd. [2018 (11) TMI 1067 - SC ORDER] has held that reassessment proceedings based on the audit objection can not be sustained - Decided in favour of assessee.
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2019 (12) TMI 1338
Revision u/s 263 - assessment framed under section 143(3) of the Act as erroneous insofar prejudicial to the interest of revenue - Exemption u/s 11 denied - HELD THAT:- Admittedly, the assessment order framed under section 143(3) of the Act dated 16 March 2015 has been set aside to the file of the AO for re-adjudication as per the provisions of law as submitted by the learned AR for the assessee
As held Tribunal has committed a grave error in holding the activities of the assessee in the nature of trade, commerce or business and consequently holding that the proviso to section 2(15) of the Act shall be applicable and therefore, the assessee is not entitled to exemption under section 11 - proviso to section 2(15) of the Act shall not be applicable so far as the assessee-AUDA is concerned and as the activities of the assessee can be said to be providing general public utility services, the assessee is entitle to exemption under section 11 of the Act. Both the questions are therefore, answered in favour of the assessee and against the Revenue.
Impugned order passed by the Tribunal in respective appeals for differ assessment year are hereby quashed and set aside. Accordingly, all these appeals are allowed and answered both the questions in favour of assessee and against the Revenue.
The issue involved in the order of learned CIT under section 263 of the Act is dependent on the assessment order to be framed by the AO in accordance to the direction provided by the ITAT as discussed above. Therefore, we hold that the impugned order under section 263 of the Act does not require any separate adjudication at this stage. Accordingly, we conclude that the order framed under section 263 of the Act is infructuous.
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2019 (12) TMI 1337
The Supreme Court of India issued an order in 2019 (12) TMI 1337 - SC. Justices Arun Mishra and Indira Banerjee presided over the case. The respondents were represented by counsel, and the case was adjourned to January 9, 2020. No third party interests were to be created until the next hearing.
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2019 (12) TMI 1336
Validity of power of revision exercised by PCIT u/s 263 - assessment was completed by the AO under limited scrutiny assessment - Large other expenses claimed in the Profit and Loss account and Mismatch between income/receipt credited to profit and loss account considered under other heads of income and income from heads of income other than business of profession - HELD THAT:- AO not following procedure prescribed in Sub Clause (d) of Clause of 3 of said CBDT instruction would render the assessment order erroneous and prejudicial to the interests of the Revenue, thereby confirming the jurisdiction on ld. PCIT u/s.263.
As regards to the decision of Co-ordinate Bench of the Tribunal in the case of Smt. Padmavathi [2019 (12) TMI 399 - ITAT CHENNAI] to which one of us i.e. the Accountant Member is the author of the order. In the said decision the Tribunal had rendered decision overlooking exceptional clause carved out in Sub Clause (d) of Clause 3 of CBDT Instruction No.20/2015, dated 29.12.2015.
Decision is per incuriam. It is needless to say that an order which is per incuriam has no precedential value. In the circumstances, we are of the considered opinion that ld. PCIT was justified in exercising the jurisdiction vested with him u/s.263 - Appeal filed by the assessee stands dismissed.
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2019 (12) TMI 1335
Validity of conditional interim order - order of status quo - maintainability of the application under Section 241-242 of Companies Act - power of Tribunal to pass conditional order of status quo - how the petition under Section 8 of the Arbitration and Conciliation Act, 1996 is maintainable with regard to the Sale Deed or Sale of one or other asset of the Company? - HELD THAT:- This issue cannot be decided by this Appellate Tribunal as the matter is pending before the Tribunal. The other question is as to whether the Arbitral Tribunal, which is already deciding the claim of the claimant can decide the question of oppression and mismanagement, if any, caused by a member or members against one or other members or group of members or the Company or such action is prejudicial to the public interest or the interest of the members or company. However, such issue, we are not going to decide in this appeal. It is for the Arbitral Tribunal to determine, if such issue has been raised.
The Tribunal rightly held that predominant focus in a Company Petition under Section 241-242 of the Companies Act, 2013 is to safeguard the interest of the Company. However, if a party raises the issue of maintainability of the petition under Section 241-242 by filing a petition under Section 8 of the Arbitration and Conciliation Act, 1996, the Tribunal rightly held that such issue is to be decided but after the pronouncement by the Arbitral Tribunal and in the meantime passed interim direction as it thought fit and proper in the interest of the company. If the Tribunal is required to pass further ad-interim relief order, it may wait till the decision of the Arbitral Tribunal and then decide the main issue of maintainability and then decide on the question of passing further interim order during the pendency of the petition, if it is held to be maintainable.
Appeal dismissed.
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2019 (12) TMI 1334
Lower tax deduction at source - HELD THAT:- Petitioner/assessee in its original application at 1% has been allowed for the balance part of the financial year 2019-20.
Assessee has also been granted permission to adjust excess amount of TDS deducted between 21st July, 2019 to the date of the said order for future payments in terms of the directions of this Court. This order dated 4th December, 2019 satisfies the concerns of the petitioner.
As submitted that there are certain aspects which would need to be examined at the stage of carrying out the assessment for the assessment year 2020-21. In this regard, he has tendered in Court an additional submission. We have no doubt that the respondents will examine the said aspects as and when the occasion arises.
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2019 (12) TMI 1333
TDS u/s 194H - disallowing expenditure in the nature of discount u/s 40(a)(ia) - Assessee argued that expenditure was in the nature of discount given to distributors, working on a principal to principal basis, for early/advance payment and not in the nature of commission for provision of any service and therefore did not warrant tax deduction u/s 194H - HELD THAT:- As decided in own case [2018 (6) TMI 547 - ITAT MUMBAI] TDS provisions are applicable u/s 194H in case it is held that the nature of the transaction entered into between the assessee and the distributor is that of commission but in case if it is decided that the nature of transaction is not commission but discount given on sales it cannot be regarded to be commission which is hit by the provisions of Section 194H.
We, therefore, in the interest of justice and fair play to both the parties set aside this issue and restore it to the file of the AO with the direction that the AO shall re-decide this issue afresh in accordance with law after going though the agreement which the assessee has entered into with the distributor as well as the sample subscription application form, whether the amount represents the expenditure incurred by the assessee towards commission.- Appeal allowed by assessee.
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2019 (12) TMI 1332
Rectification of error - Appellant have submitted that the impugned AAAR order dated 14.03.2019 needed to be rectified owing to the presence of error, which is apparent from the face of record - Circular No. CBEC-102/21/2019-GST dated 28.06.2019 issued by the CBIC - HELD THAT:- It is conceded that the Ruling made in the impugned AAAR Order is contrary to the interpretation of the legal provision as envisaged by the Board, and since the said Board Circular is beneficial in nature, the same needed to be applied retrospectively in keeping with the Hon’ble Apex Court Judgment, relied upon by the Applicant.
The additional/Penal interest recovered by the Applicant from their customers against the delayed payment of monthly instalments of the loan extended to such customers, would be exempt from GST in terms of SI. 27 of the Notification No. 12/2017-C.T. (Rate) dated 28.06.2017 - Impugned order rectified.
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2019 (12) TMI 1331
Rectification of error - mistake apparent on the face of the record - intermediary services - whether the services rendered by the Appellant was export of service or not, and not the classification of services as is being made out by the Appellant vide the submissions being made in present application? - HELD THAT:- Under the GST law, there are certain goods and services, which have declared either as non-taxable supplies or as an exempt supply in terms of section 2(78) and section 2(47) of the CGST Act, 2017. While Schedule Ill to the CGST Act, 2017 enumerate the activities or transactions which shall be treated neither as a supply of goods nor a supply of services, goods and services, which have been declared exempt supply are notified by the Notification No. 2/2017-C.T. (Rate) dated 28.06.2017 and Notification No. 12/2017-C.T. (Rate) dated 28.06.2017 respectively. Therefore, we are of the opinion that provision of section 97(2)(e) of the CGST Act, 2017 gives us the jurisdiction to decide whether any goods or services or both are liable to GST or not. The aforesaid provision does not enable us to determine the place of supply of any goods or services or both. Hence, the Appellant has misinterpreted the provision of section 97(2)(e) ibid - it is discernible that there is clearly dispute in the interpretation by the Appellate Authority and that of the Appellant with regard to section of the CGST Act, 2017.
Since there is dispute in the interpretation of the legal provisions of section 97(2)(e) of the CGST Act, 2017, which certain leaves the scope for argument and debate, there is absolutely no question of any error apparent from the face of record, as was being made out by the Appellant - the allegations, made by the Appellant with regard to the error crept in the impugned order which is apparent from the face of record, is without any rationale, and hence do not merit consideration.
Application rejected.
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2019 (12) TMI 1330
Addition u/s 40A - Expenditure in cash - HELD THAT:- Section 40A(3) contemplates that where assessee incurs any expenditure in respect of which a payment or aggregate of payments made to a person in a day, otherwise than by an account payee cheque drawn on bank account excess ₹ 20,000/- then no deduction shall be allowed in respect of such payment.
Rule 6DD of Income Tax Rules, 1962 provide an exemption from applicability of this clause, and the ld.CIT(A) has followed rule 6DD which has been explained by the Board in its Circular No.220. This explanation has been submitted by the assessee in its written submissions reproduced by the ld.CIT(A) on page no.7. CIT(A) is of the opinion that the case of the assessee falls within the exception because it has made this payment on account of business exigency and it was not practical to make the payment through account payee cheque. - Decided in favour of assessee.
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2019 (12) TMI 1329
Levy of GST - Educational Institution - separate persons/entities or not - Charitable Society, having the main object and factually engaged in imparting Medical Education - requirement of registration in view of the provisions of section 23 of the said act - taxable supply or not - Challenge to AAR decision - HELD THAT:- It is apparent that M/s. Kasturba Health Society was constituted in the year 1964 with the main objective of catering to the health needs of rural population of India. It is registered under the Societies Registration Act, 1860 and Bombay Public Trust Act, 1950. On the contrary, M/s. MGIMS is a medical institution, which is a joint venture of the Central Government, and the State Government of Maharashtra, and the Appellant Society having the agreed arrangement of funding the said project in the ratio of 50:25:25 respectively. The above said 25% of the operational cost to be borne by the Appellant Society will be collected from the fees paid by the students and recoupment charges received from the patients availing treatment in the said medical institute. The operation of this medical institute is controlled and regulated by the Governing Council, which comprises of 10 members and a chairman. Out of these 10 members, 5 members are nominated by the Appellant Society, while 5 members are nominated from the Central Government and the State Government, which, inter alia, regulate and supervise the teaching and training procedures adopted by the said Medical Institution.
It is adequately clear that the Appellant Society and M/s. MGIMS, the medical institute, which is a joint venture undertaking of the Central Government, State Government and the Appellant Society, and which is controlled and regulated by the Governing Council comprising of members, which also includes the nominated members from the Central Government and State Government besides the members nominated from the Appellant Society are separate entities/persons having their own role and functions. Thus, we completely agree with the AAR findings in this regard, who also observed the above said facts, and accordingly, inferred that the Appellant society and M/s. MGIMS are two separate and independent persons in so far as the GST law is concerned - MGIMS and the Appellant Society are two separate establishment.
The Appellant have relied upon the various documentary evidences, viz.- grant by the Central and State Govt. in the name of KHS for running the medical institute, e.g., MGIMS; Pension Fund registration, which are in the name of KHS for the employees working at MGIMS; Grant of PAN is in the name of KHS through which all the financial transaction relating to MGIMS are reported to Central Govt.; registration in the name of KHS for carrying out the Research activities in the fields of Medical Education and Health Care by the staff working at MGIMS granted by the Dept. of Science and Technology of Govt. of India; for the purpose of regulating the transaction relating to MGIMS in foreign currency the registration granted under FCRA in the name of KHS alone and the transaction of MGIMS are not required to report separately, the ownership and title of the land on which MGIMS is functioning also in the name of KHS - It is opined that the above documentary evidences relied upon by the Appellant do not detract MGIMS from the fact that it is MGIMS, which is affiliated with the State Universities and monitored, controlled and regulated by the Medical Council of India. The role of the Appellant society is merely as the caretaker of the said medical institute, which is responsible for its management and administration as per the agreements entered by the Appellant Society with the Central Governments and State Government of Maharashtra. Thus, the core function of providing the medical institution is carried out by MGIMS, and not by the Appellant Society. This adequately proves its separate and independent existence as distinct entity from the Appellant Society.
Since, the Appellant Society, does not provide the said Medical education, the question raised above is not proper and correct, and hence not answered - other issues not maintainable in terms of the Clause (a) of section 95 of the CGST Act, 2017, as the transaction with respect to which the Appellant has asked the question, is not pertaining to the Appellant.
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