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Showing 401 to 420 of 16576 Records
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2021 (12) TMI 1129
Late deposit of employees share of PF & ESI which were deposited after the due date but before the due date of filing of return of income - AO made the additions of the impugned amounts for the reasons that the assessee did not deposit the amounts of employees contribution as per the provisions of section 36(1)(va) - HELD THAT:- As decided in RAJA RAM VERSUS THE ITO, WARD 3 AND SANCHI MANAGEMENT SERVICES PRIVATE LIMITED VERSUS THE ITO, WARD 5 (2) , CHANDIGARH [2021 (11) TMI 370 - ITAT CHANDIGARH] assessee deposited the contribution of PF & ESI belated in terms of section 36(1)(va) of the Act, however, the said deposits were made prior to filing of return of income u/s 139(1).
Impugned additions made by the Assessing Officer and sustained by the Ld. CIT(A) on account of deposits of employees contribution of ESI & PF prior to filing of the return of income u/s 139(1) of the Act, in both the years under consideration prior to the amendment made by the Finance Act, 2021 w.e.f. 1.4.2021 vide Explanation 5, are deleted. - Decided in favour of assessee
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2021 (12) TMI 1128
Delay in depositing the employee’s contribution towards PF/ESI - same stands duly deposited before the due date of filing the return of income u/s 139(1) of the Act - scope of amendment - HELD THAT:- We find that this tribunal in the case of Nipun Jain [2021 (12) TMI 1042 - ITAT AMRITSAR] has deleted the said disallowance on observing that the alleged amount of employee’s contribution PF and ESI has been deposited befor the due date of filing return of income prescribed u/s 139(1) - also there is no doubt qua applicability of the amended provisions referred above, prospectively ad second aspect as considered/determined by the ld. CIT(A) qua retrospective application of the amended provisions of Section 36(1)(va) and 43B of the Act wherein Explanations have been inserted by Finance Act, 2021 qua employees’ share in respect of PF & ESI Act, is also unsustainable - Decided in favour of assessee.
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2021 (12) TMI 1127
Reopening of assessment u/s 147 - eligibility of reasons to believe - "reason to suspect" OR "reason to believe" - HELD THAT:- As in the reasons recorded, there is no allegation that there was any failure on the part of the assessee in not disclosing truly and fully material facts necessary for assessment. Under the circumstances, the assumption of the jurisdiction to reopen the assessment beyond the period of four years in exercise of powers u/s 147 of the Act is bad in law and contrary to the provisions of section 147 of the Act. Under the circumstances, on the aforesaid ground alone, the impugned reassessment proceedings deserve to be quashed and set aside. See SHRI NISHANTKANTILAL PATEL, SMT MUKTABEN NISHANTBHAI PATEL VERSUS INCOME TAX OFFICER, WARD-2 (2) , BHARUCH [2021 (2) TMI 531 - ITAT SURAT]
The reasons for the formation of the belief must have a rational connection with or relevant bearing on the formation of the belief. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income-tax Officer and the formation of his belief that there has been escapement of the income of the assessee from assessment in the particular year. It is no doubt true that the court cannot go into the sufficiency or adequacy of the material and substitute its own opinion for that of the Income-tax Officer on the point as to whether action should be initiated for reopening assessment. The reason for the formation of the belief must be held in good faith and should not be a mere pretence. From our above analysis of reasons recorded in the assessee`s case under consideration, we note that the reasons recorded by the assessing officer falls in the zone of "reason to suspect" and not "reason to believe", therefore we quash the reassessment proceedings. - Decided in favour of assessee.
Addition u/s 68 - Bogus share transactions - penny stock purchases - HELD THAT:- We find that there is absolutely no adverse material to implicate the assessee to the entire gamut of unfounded/unwarranted allegations leveled by the AO against the assessee, which in our considered opinion has no legs to stand and therefore has to fall. We take note that ld. DR could not controvert the facts which are supported with material evidences furnished by the assessee. We note that the allegations that the assessee/brokers got involved in price rigging/manipulation of shares must therefore consequently fail. At the cost of repetition, we note that the assessee had furnished all relevant evidences in the form of bills, contract notes, demat statement and bank account to prove the genuineness of the transactions relevant to the purchase and sale of shares resulting in long term capital gain. Neither these evidences were found by the AO nor by the ld. CIT(A) to be false or fictitious or bogus. The facts of the case and the evidences clearly support the claim of the assessee that the transactions of the assessee were genuine and the authorities below was not justified in rejecting the claim of the assessee exempted u/s 10(38) of the Act on the basis of suspicion, surmises and conjectures. It is to be kept in mind that suspicion how so ever strong, cannot partake the character of legal evidence.
CIT(A) was not justified in upholding the addition of sale proceeds of the shares as undisclosed income of the assessee u/s 68 of the Act. We therefore delete the addition - Decided in favour of assessee.
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2021 (12) TMI 1126
Reopening of assessment u/s 147 - Valid jurisdiction of ITO Ghaziabad to issue notice - Successor AO power in issuing the notice - AO recorded reasons for reassessment is different from AO who issued a notice u/s 148 - whether the reassessment framed by the AO i.e ITO, Hapur in pursuance to a notice dated 31.03.2016 u/s 148 of the Act, issued by Income-tax Officer, Ghaziabad who did not have jurisdiction over the case of the assessee, is valid one? - HELD THAT:- In the present case, it is an undisputed fact that Assessee is filing the return of income before ITO, Hapur and the ITO, Hapur had jurisdiction over the assessee. The ITO, Ghaziabad who did not have jurisdiction over the assessee, issued a notice u/s 148 of the Act on the basis of AIR/NMS information about cash deposits by the Assessee. Subsequently, ITO Ghaziabad vide letter dated 25.07.2016 transferred the records to ITO, Hapur as the jurisdiction over the assessee was with ITO, Hapur. Thereafter, ITO, Hapur proceeded to complete the assessment without even recording reasons to believe stipulated in section 147 or issuing any notice u/s 148 of the Act and continued the proceedings u/s 148 of the Act and passed order u/s 143(3) r.w.s 147 vide order dated 31.08.2016 on the basis of reasons recorded by ITO, Ghaziabad.
Hon’ble Gujarat High Court in the case of Hynoup Food & Oil Industries Ltd. vs. ACIT [2008 (7) TMI 192 - GUJARAT HIGH COURT] has observed that AO recorded reasons for reassessment and AO issued a notice u/s 148 of the Act must be the same person. Successor AO cannot issue notice u/s 148 on the basis of reasons recorded by predecessor AO - in view of the well-settled principle that if a notice under section 148 of the Act has been issued without the jurisdictional foundation u/s 147 of the Act being available to the AO, the notice and the subsequent proceedings will be without jurisdiction and thus, liable to be struck down. - Decided in favour of assessee.
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2021 (12) TMI 1125
Exemption u/s 11 - As per AO activities carried out by the assessee company are in the nature of ‘advancement of other general public utility’ in the nature of trade/commerce/business and therefore, the activities carried out by the assessee cannot be reckoned as attributable to ‘charitable purpose’ within the meaning to Section 2(15) - HELD THAT:- The Coordinate Bench in assessee’s own case for A.Y. 2009-10 to 2011-12 held that the assessee company cannot be said to be conducting affairs solely on commercial lines with a motive to earn profit and consequently proviso to Section 2(15) of the Act does not trigger in the case of the assessee. Such view of the Coordinate Bench has been ultimately affirmed by the Hon’ble Jurisdictional High Court in the case of CIT vs. Gujarat Industrial Development Corporation [2017 (7) TMI 811 - GUJARAT HIGH COURT] - as assessee was not involved in the activities in the spirit of commercial accommodation and therefore falls within the ambit of definition of ‘charitable purpose’ contemplated under s.2(15) of the Act. In view ofthe foregoing, we find that the relief sought by the assessee to the extent that the activities carried on by the assessee should be recognized to be of charitable nature requires to be endorsed. - Decided in favour of assessee.
Addition on account of deemed rent - deemed rent from various fact/unoccupied plots/shade added to the total income of the assessee - HELD THAT:- Considering the entire aspect of the matter we find that when the appellant has an exempt entity Chapter-3 of the matter would be applicable in its case and not the provision of Chapter-4 of the Act. Therefore, the addition of deemed rent would fall under the head income from house property under Chapter-4 of the Act and therefore, the addition is not sustainable. Considering this aspect the order passed by the Ld. CIT(A) in deleting addition in our considered view is just and proper and so as to warrant interference.
Depreciation as per normal commercial principles and rule of accountancy - AO is required to re-examine the issue afresh in accordance with law considering the assessee as a Charitable Institution.
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2021 (12) TMI 1124
Set off of MAT credit u/s.115JAA of brought forward from earlier years against tax on total income including surcharge and education cess instead of adjusting the same from tax on total income before charging such surcharge and education cess - HELD THAT:- We find that this issue is no longer res integra in view of the decision of the Hon’ble Calcutta High Court in the case of SREI Infrastructure Finance Ltd.,[2016 (8) TMI 967 - CALCUTTA HIGH COURT] and CIT vs. Vacment India [2014 (10) TMI 787 - ALLAHABAD HIGH COURT] wherein it was categorically held that surcharge and education cess are part of income tax. These High Court decisions were followed by series of the Tribunal decisions across the country and hence, this issue is no longer res integra. Respectfully following the aforesaid decisions, we hold that for the purpose of MAT credit to be carried forward to subsequent years, tax portion should include surcharge and education cess. Respectfully following the same, we do not find any infirmity in the order of the ld. CIT(A granting relief to the assessee. Accordingly, the grounds raised by the Revenue are dismissed.
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2021 (12) TMI 1123
Depreciation on purchase of trademark - main argument of the ld.AR is that consideration paid is only related to the trademark for ‘Jealous’ and it has not related to other trademarks viz., ‘Analyse’, Detour’ & ‘JLS’ - HELD THAT:- we find that the agreement entered for acquisition of four trademarks and not for one trademark. Being so, we are not in agreement with the arguments of the assessee’s counsel.
Depreciation disallowed on the reason that 4 trademarks have been included in the block of assets are not put to use - It is not the case of the AO that the assets were not put to use at all. The contention of the ld.DR is that only the brand ‘Jealous’ was put to use in the asst. year under consideration, as such, only this brand is entitled for depreciation and not other 3 brands. All these 4 brands falling under one block of assets and even one of the brads is put to use, it is not possible to restrict the depreciation on the said brand only by stating that a portion of block assets only has been put to use.
In our opinion, in relation to block of assets, it is not possible to segregate the each trademark from the block for the purposes of granting depreciation and thereby restricting the claim thereof. Once it is found that the assets are used for business purpose out of particular block, it is not necessary that all the item falling within that block have to be simultaneously used for being entitled to depreciation . In view of this, we are of the opinion that lower authorities are not justified in rejecting the claim of depreciation on the block of these assets and the assessee to be granted depreciation at the prescribed rate for this block of assets. Accordingly, we allow this ground of appeal of the assessee.
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2021 (12) TMI 1122
Maintainability of disciplinary proceedings - delayed issuance of the charge-sheet - Should the disciplinary proceedings initiated against the petitioner under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules and served immediately preceding his retirement on superannuation, be interdicted and nullified on the ground of delay as well as subsequent acquittal in judicial proceedings?
HELD THAT:- The petitioner has not specifically argued that issuance of a charge-sheet containing stale charges is arbitrary. However, on facts and in the circumstances, it may not require much application of mind for a sensible person to be inclined to the view that the action complained of is indeed arbitrary. An arbitrary action offends Article 14 and is, thus, void. Since no prejudice is required to be proved for violation of a Fundamental Right, the question of proving prejudice may not arise. However, since issuance of the charge-sheet is not challenged on the ground of arbitrariness, we leave it for a decision in an appropriate case in future as to whether delayed issuance of charge-sheet amounts to arbitrariness in State action and could be nullified on the touchstone of Article 14 without prejudice being proved.
Having held that the charge-sheet has been belatedly issued without satisfactory explanation but leaving it aside only for the moment, we now propose to attempt a balancing exercise of the factors for and against the plea that the delay in initiating the disciplinary proceedings should be the ground for quashing thereof - the factors for quashing the delayed charge-sheet far out-weigh the factors against - the proceedings initiated against the petitioner ought to be laid to rest, meaning thereby that the charge-sheet as well as appointment of the Inquiry Officer may not be carried forward. This course of action would be just and proper, more so in the circumstances that nearly a year’s time was taken by the disciplinary authority to appoint the Inquiry Officer and also that in the judicial proceedings the petitioner came out unscathed.
The upshot of the discussion on delayed issuance of the charge-sheet dated October 23, 2013 is that there being no satisfactory explanation therefor, the respondents cannot be allowed to proceed with such charge-sheet; thus, the petitioner is entitled to succeed in his claim that the disciplinary proceedings including the charge-sheet dated October 23, 2013 and all further orders in connection therewith ought to be set aside.
It is directed that the sealed cover be opened and the recommendation of the Departmental Promotion Committee be considered. If the petitioner had been recommended, an order of promotion be issued as Chief Commissioner of Customs and Excise. Such order will take effect from the date the peers of the petitioner were promoted. The petitioner shall not be entitled to any arrears of monetary benefit for such promotion, except that his pension shall be calculated based on the pay that he would have last drawn as such Chief Commissioner. Let the order of promotion be issued within a month - petition allowed.
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2021 (12) TMI 1121
Seeking direction to remove the name of the petitioner from the Denied Entity List - benefit of Merchandise Export from India Scheme - HELD THAT:- As is well known, to encourage exports in order to earn foreign exchange and to make the export goods originating from the country cost competitive in international market, the Government of India comes up with the export incentives from time to time which are framed in different mechanisms - The petitioner in the present case is interested in receiving the export benefits under MEIS. The only reason why the petitioner is blocked from making application for such purpose is that on account of alleged past misdeeds, the petitioner has been placed in the denied entity list which would be sufficient to disqualify the petitioner to claim any other benefit of MEIS.
Nothing has been brought to the notice from the MEIS scheme suggesting that for any past unrelated events of dispute between the department and the petitioner, export incentive in the presentie would be denied to the exporter - The trade notice pertains to the facility for applying the benefit under MEIS under the system driven approval mechanism. This part is totally procedural and this trade notice cannot decide the rights of the petitioner under the scheme. It may be that for those who are placed in denied list or suspended list, the fast tracked procedure of system driven approval mechanism may not be made available. This is not the same thing as to suggest that such entities for unrelated events could be denied the benefit of export incentives under the scheme if all conditions are satisfied.
The contention that unless and until the petitioner pays up the entire duty and penalty imposed under the orders passed by the DGFT and custom authorities the petitioner cannot claim any export incentive under the new scheme is completely unacceptable. Both the orders are under challenge before the first appellate authorities. Respective statutes require pre-deposit of certain amounts upon which rest of the recoveries would be suspended. If the petitioner has no such protection under law, the department can recover the amounts through coercive means and perhaps even from the petitioner's entitlement of intensives under the export promotion scheme in quest. But once this mechanism is statutorily put in place and followed by the assessee, the Government of India cannot seek coercive recovery of the remaining amounts in indirect manner by blocking the export incentives under unrelated schemes and future consignments.
It is directed that the respondents shall permit the petitioner to make an application within the time envisaged in the scheme for the incentive under MEIS scheme and consider the same on merits in terms of the provisions made under the scheme - Petition disposed off.
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2021 (12) TMI 1120
Confiscation - goods imported without the condition of the registered foreign source when the same were meant for export of for manufacturing export products - HELD THAT:- List this admitted matter for hearing in due course.
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2021 (12) TMI 1119
Smuggling - Betel Nuts - proper investigation of matter not carried out - mens rea involved or not - Section 123 of the Customs Act, 1962 - HELD THAT:- Ideally, the Tribunal ought to have assessed the reasons furnished by the Commissioner in the order-in-original and the challenge thrown by the respondent herein to such findings. Instead, the Tribunal gave much credence to the observations of this Court in the order of May 6, 2019 to the effect that when the four suppliers had affirmed affidavits to confirm that they had supplied the goods to the respondent herein, there was little reason to question the same - It is true that the observation is found in the order of May 6, 2019 of this Court. However, such observation of this Court had to be read in the context of the failure of the Tribunal in course of its original order dated March 23, 2018 to indicate that the mind of the Tribunal had been applied to the matters in issue as the limited discussion in the relevant order of the Tribunal did not refer to the challenges on divers counts that the respondent herein carried against the findings on facts rendered by the Commissioner in the order-in-original.
In the order impugned, the Tribunal has also observed that no mens rea was involved since the goods would attract 5% duty. That appears to be a matter of conjecture and merely because the goods would have attracted a nominal duty cannot be a brush to sweep aside the cogent findings contained in the order-in-original of the Commissioner without referring to and dealing with the same in the light of the challenge thereto thrown by the respondent herein - The Tribunal is tasked with the duty of assessing the grounds made out in support of an order. In this case the Tribunal appears to have abdicated its authority to decide and dealt with the matter at a superficial level without referring to either the grounds indicated in the order-in-original or the grounds of challenge fashioned by the respondent herein.
The order impugned dated December 23, 2019 is found to be exceptionable and same is set aside with a request to the Tribunal to consider the matter afresh uninfluenced by any observations contained in the previous order of this Court or in the present order - matter remanded to the Tribunal for the respondent's appeal before it to be considered afresh in accordance with law - appeal allowed by way of remand.
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2021 (12) TMI 1118
Validity of remand of the matter - proper officer for issuance of SCN - Whether the Tribunal was justified in remanding the matter back for a fresh decision when the matter was subjudice before the Hon'ble Supreme Court in light of the stay order passed in M/S MANGALI IMPEX LTD., M/S PACE INTERNATIONAL AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2016 (5) TMI 225 - DELHI HIGH COURT]? - HELD THAT:- Admittedly, the appeal filed by the Revenue as against the decision of the High Court of Delhi in the case of M/S MANGALI IMPEX LTD., M/S PACE INTERNATIONAL AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2016 (5) TMI 225 - DELHI HIGH COURT] is pending before the Hon'ble Supreme Court as UNION OF INDIA VERSUS MANGALI IMPEX LTD. [2016 (8) TMI 1181 - SC ORDER]. Therefore, if such is the factual position, then the Tribunal ought to have kept the matter pending on its file instead of setting aside the adjudication order and remanded the matter back to the adjudicating authority and await the decision of the Hon'ble Supreme Court. Identical impugned order was tested for its correctness by the Hon'ble Division Bench of this court in COMMISSIONER OF CUSTOMS (PORT) , KOLKATA VERSUS M/S. HALDIA PETROCHEMICALS LTD. [2019 (6) TMI 1650 - CALCUTTA HIGH COURT]. The appeal filed by the Revenue was allowed and, consequently, the appeal filed by the respondent before the Tribunal was restored to its file and the Tribunal was directed to await the decision of the Hon'ble Supreme Court.
The appeal filed by the Revenue is allowed and the order passed by the Tribunal is set aside and the appeal is restored to the file of the Tribunal with a direction to the Tribunal to await the decision of the Hon'ble Supreme Court in the appeal filed against the decision of the High Court of Delhi in the case of Mangali Impex Ltd. - answered in favour of the Revenue.
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2021 (12) TMI 1117
PIL - Smuggling - Validity of Voluntary Disclosure Scheme dated 11-06-2020 introduced by the Wildlife Division, Government of India - It was contended that, the main purpose of the Voluntary Disclosure Scheme was stated ‘to collect stock information for persons who have in their possession “exotic live species” i.e., exotic live birds and animals within India through such voluntary disclosure’. - seizure of all exotic birds and animals found within or being transported through the State of Meghalaya - HELD THAT:- The question of presumption of exotic birds and animals as having been illegally smuggled does not arise since the exotic birds and animals are not notified under Section 123 of the Customs Act. The provision of Chapter IVA of the Customs Act which provides for detection of illegally imported goods and prevention of their disposal thereof comprising of Section 11A to 11G are also inapplicable. Admittedly, the Central Government has not notified the exotic birds and animals in question under Section 11B of the Customs Act. There are safeguards in place to detect the illegally smuggled goods at the point of entry and exit which are regulated under the Customs Act. Even the Foreign Trade Policy and the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) aid in prevention of illegal smuggling of exotic species.
Neither there is any statutory presumption exist to presume that all the exotic species in the domestic area are imported in India nor there is a legal requirement which compels domestic keeper, breeder or transporter of such exotic species to produce any proof of valid importation or documents establishing his licit acquisition. As already held by the Allahabad High Court in DINESH CHANDRA VERSUS U.O.I. THRU. ADDL. PRIN. CHIEF. CONSERVATOR OF FOREST & OTHERS [2020 (7) TMI 750 - ALLAHABAD HIGH COURT], seizure of exotic species in domestic area on mere surmises or merely on the basis of statements recorded by Customs or Wildlife Authorities would be contrary to the provisions of the Customs Act, 1962 or even Wildlife Act. Hence, no such directions to seize exotic species found within or being transported through the State of Meghalaya can be issued. There is no prohibition, restriction or regulation to sale, purchase, possession or breeding of the exotic species within India under the provisions of the Customs Act, 1962 or even the Wildlife Act. Seizure of these exotic species would be contrary to the provisions of the Customs Act, 1962 and no such direction can be issued.
Public Interest Litigation is without any merit and is dismissed.
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2021 (12) TMI 1116
Smuggling - Gold - validity of continued detention of the detenues - COFEPOSA - material on the basis which the detention order was passed are the statements recorded under Section 108 of the Customs Act - Corroboration of statements - HELD THAT:- The facts and inferences from facts are drawn from the search and seizure and host of other facts mentioned in the grounds. Most of the facts are according to the detaining authority corroborated by the statements of those with whom the petitioners had dealings. We also note that the power under Section 108 of the Customs Act is intended to be exercised by a gazetted officer of the customs department. Section 108(3) enjoins on the person summoned by the officer to serve upon any subject to which he is summoned. He is not excused from speaking the truth on the premise that such statements could be used against him. This requirement is included in the previous or the purpose of including the officer to elicit from the person interrogated. In the instance case, there has been no retraction of the confession statements made under section 108 of the Customs act. In such circumstances, we find nothing wrong in the detaining authority relying on the statements made under Section 108 of the Customs Act as they furnish sufficient and adequate materials on the basis of which the detaining authority can form its opinion.
There is no merit in the contention of the learned senior counsel that there has been factual misstatements made about the various voluntary statements given by the detenue under section 108 of the Customs Act, we hold that the same is not acceptable. The copies of the statements dated 14-7-2020 and 29-7-2020 of the detenue were made available by the learned counsel for the Customs. Having gone through the statements, it is not found that there is any factual misstatement recorded in the detention order about the confession statement under Section 108 of the Customs Act. Thus, we repel the said contention.
The CCTV footage has no bearing on the decision to detain as it is not primarily based on the said footage. The whole purpose of supplying the copies of the documents relied on is to ensure that the right of the detenue to make a representation against the detention order is not hampered in any manner by the non-supply. In the instant case, no findings are arrived at on the basis of the CCTV footage, and thus, non-supply of the same cannot be of any avail to the petitioner.
With regard to the contention that there is no likelihood that the detenues would be enlarged on bail also cannot be accepted as several accused in the connected cases had been granted bail. All that the detaining authority was obliged while passing the order of detention is to be aware of the fact that detenue is in jail and about the chance of detenue being enlarged on bail, that having been done no fault can be found. We therefore, reject this contention.
The proceeding of the Advisory Board is different from the proceedings of the judicial or quasi-judicial proceedings, before which there is a lis to adjudicate upon. The Advisory Board cannot be asked to take up the mantle of becoming the legal practitioner for the detenue. The detenue was free to produce materials to question the detention made against him and the Advisory Board has no obligation to summon any person or to call for records over and above the files placed before it. The Advisory Board in the instance case has opined that it was necessary to continue the detention. We do not not think that the detenue has been denied the protection either under Article 21 or 22 of the Constitution of India. The detenue did get the opportunity for making an effective representation against his detention - the contention is rejected.
Petition dismissed.
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2021 (12) TMI 1115
Levy of penalty u/s 112 of Customs Act on Chartered Accountant (CA) - allegation of fabricating documents and wrongly verifying statements - opportunity of being heard not provided to appellant - HELD THAT:- Imposition of penalty of ₹ 1,00,000/- under Section 112 of the Customs Act is the resultant outcome of such remand order that was re-adjudicated by the Commissioner of Customs (Export-II) and decided on 27.11.2017 without appellant being noticed. Appellant Shri S.L. Agrawal filed an affidavit to the effect that no such show-cause notice for hearing, leading to adjudication order, under challenge in this appeal was served on him and despite direction to learned Authorised Representative, the respondent-department failed to produce any proof of service on the summons on the appellant during the hearing of the adjudication proceeding that had commenced in 2017 without any challenge by the respondent department to the dropping of proceedings against the present appellant in the first adjudication order dated 26.12.2003.
There are no hesitation to hold a finding that principles of natural justice has not been followed by the Commissioner of Customs (Export-II) and she has flouted the clear direction contained in the remand order to follow principles of natural justice, though passed in respect of the principal importer/appellant.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 1114
Refund claim of SAD - Time limitation - rejection of claim on the ground that appeals filed by the department are time-barred for the reason that the review order has been passed beyond the time limit of three months as stipulated under sec. 129(D)(3) of the Customs Act, 1962 - HELD THAT:- There is much delay in passing the review order. As per sub-section (3) of section 129D of the Customs Act, 1962, review order has to be passed within three months from the date of receipt or the communication of the order passed by the adjudicating authority. The Commissioner (Appeals) has granted several chances to the department to furnish details with regard to the date of receipt of the order passed by the adjudicating authority. In fact, the date of order of adjudicating authority itself is not furnished in many orders. The department has failed to comply with the directions passed by the Commissioner (Appeals) and thereupon he had no other way but to dispose of the appeals on the ground of limitation. However, the Commissioner (Appeals) instead of dismissing the appeals on limitation has given a further chance to the department to resubmit the appeals after obtaining the details with regard to the date of receipt of order by the reviewing authority.
It is explicit that the department has not been able to furnish any details as to the date of receipt of order by the reviewing authority. This Tribunal had also granted several adjournments to the department to obtain these details. Today, when the matter came up for hearing, ld. AR has not been able to place any such details with regard to the date of receipt of the order by the reviewing authority.
There are no hesitation to conclude that the review order passed by the department is beyond the time-limit prescribed under sub-section (3) of section 129D of the Customs Act, 1962 and therefore the appeals filed before the Commissioner (Appeals) are time-barred - appeal dismissed.
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2021 (12) TMI 1113
Exemption from levy of Integrated Goods & Service Tax - re-import of parts/engines of aircraft sent outside the country for repair - effect of notification no. 36/2021-Customs dated 19th July 2021 and no. 37/2021-Customs dated 19th July 2021 substituting ‘Said duty, tax or cess’ for ‘Duty of customs’ - HELD THAT:- The issue has been decided in the case of JET AIRWAYS (INDIA) LTD. VERSUS COMMISSIONER OF CUSTOMS [2021 (1) TMI 577 - CESTAT NEW DELHI] where it was held that Appellant is thus entitled to exemption from payment of integrated tax under the Exemption Notification on reimport of repaired parts/ aircrafts into India.
Appeal allowed - decided in favor of appellant.
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2021 (12) TMI 1112
Sanction of Composite Scheme of Amalgamation - Section 230-232 with other applicable provisions of the Companies Act, 2013 and read with of the Companies (Compromise, Arrangement, and Amalgamations) Rules, 2016 - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of notices also issued.
The scheme is approved - application allowed.
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2021 (12) TMI 1111
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It appears that goods have been supplied to Corporate Debtor and invoice has been raised dated 16/07/2019 No. GST/1920/0148 for amount ₹ 4,24,145.00 and due to non-payment of remaining due amount by the Corporate Debtor, the Operational Creditor had issued Demand Notice and the same was duly delivered to the Corporate Debtor. The Corporate Debtor did not reply to the demand notice of the Operational Creditor, however paid the amount of ₹ 2,00,000/- out of total due amount. It is further noted that even after sufficient opportunity. The Corporate Debtor chose not to appear and contest this application.
Hence, the debt amount is admitted and remains to be paid fully as per invoice dated 16/07/2019. There is no pre-existing dispute for the due amount. The present application is filed well within the limitation period and meets the threshold limit as prescribed under section 41 of IBC.
Application admitted - moratorium declared.
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2021 (12) TMI 1110
Rejection of claim of wages - Section 40(2) of I&B Code - HELD THAT:- On verification of records it is found that the submission of the Respondent that he has not been provided with any order from the appropriate authority in connection with payment of gratuity etc. Since the Appellants have not produced any order of the Labour Court or such authorities the Liquidator on his own cannot decide on disputed liability of them. He can only act on the strength of crystalized claims.
It is the settled position of law that the provident fund, the pension fund and the gratuity fund, do not come within the purview of ‘liquidation estate’ for the purpose of distribution of assets under Section 53 of the Code. Based on this, the only inference which can be drawn is that Pension Fund, Gratuity Fund and Provident Fund can’t be utilised, attached or distributed by the liquidator, to satisfy the claims. Section 36(2) of the I&B Code 2016 provides that the Liquidator shall hold the Liquidation Estate in fiduciary for the benefit of all the Creditors. The Liquidator has no domain to deal with any property of the Corporate Debtor, which is not the part of the Liquidation Estate. It is clear that in terms of sub-Section (4)(a)(iii) of Section 36 all sums due to any workman or employees from the Provident Fund, Pension Fund and the Gratuity Fund, do not form part of the liquidation estate/liquidation assets of the ‘Corporate Debtor.
Some of the Appellants failed to provide any proof of having been appointed in service of employment of the Corporate Debtor and that the benefit accruing to the Appellants shall be subject to documents available on record with the Respondent unless otherwise proven with sufficient evidence that the Appellants were in employment of Corporate Debtor and that the Appellants without properly responding to the communication addressed to them, have now come with the above appeals. This cannot be accepted.
The claim of wages cannot be sanctioned unless the statutorily constituted forums either under the Industrial Dispute Act, Payment of Wages Act and Bonus Act have rendered its decision - appeal dismissed.
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