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Showing 461 to 480 of 16576 Records
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2021 (12) TMI 1069
Late payments towards EPF and ESI under section 36(1)(va) - Payment before furnishing the return of income u/s 139(1) - HELD THAT:- As relying on 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] the 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 1068
Exemption u/s 11 - Expenditure on distributing prize, Honorarium to jury, Event management expenses and Employee benefits - Whether expenditure incurred directly or indirectly in connection with the objects of the Trust? - sole objective of the Trust is the running of Infosys Prize annual award to honor outstanding achievements to scholars / scientists - HELD THAT:- The objects of the Trust has also been accepted by the Ld.AO which is to institute prizes which are meant to achievers in various fields and endeavors to elevate the prestige of scientific research in India and inspire young Indians to choose a vocation in scientific research. Since its inception, the assessee focused solely on the governance and running of Infosys Prize, annual award to honor outstanding achievements to scholars / scientists.
The contention of the Ld.AO that the expenses are routine expenses incurred for the day to day activities of the Trust is not correct.
The expenditure comprised of Honorarium to Juries for selection of prize winners, event management expenses incurred for Infosys Prize ceremony, travelling and conveyance expenses, memento and souvenir expenses, professional charges and service tax thereon, employee benefits and other expenses. These expenses were incurred in connection with the Infosys Prize ceremony held during the year. During the previous year 2015-16 relevant to AY 2016-17, the Infosys Prize was announced on 16.11.2015 and the awards ceremony was held at New Delhi on 13.2.2016. Thus, there is no merit in the contention of the Ld.AO that the expenditure was held towards the routine activities of the trust and hence the same cannot be considered as utilised from the amounts accumulated u/s 11(2) towards a specific activity.
The application of income for charitable purpose includes any expenditure incurred directly or indirectly in connection with the objects of the Trust. To treat only direct expenditure incurred as application for objects of the Trust would be too narrow a view. In the present case, the sole objective of the Trust is the running of Infosys Prize annual award to honor outstanding achievements to scholars / scientists. There is no other objectives for which the Trust carried on its activities. Thus, the entire expenditure incurred during the year was towards the purpose of carrying on the aforesaid charitable activity.
Income of the current year and income accumulated u/s 11(2) are parked in deposits and SB account with scheduled banks which are permitted as per section 11(5). The maturity proceeds are again reinvested in deposits. Thus, the identity of monies as current year's income and income accumulated u/s 11(2) is not possible. Consequently, the expenditure of ₹ 5,31,43,622 incurred towards the objectives of the Trust should be treated as application of income out of earlier years’ accumulation of income as declared by the assessee.
We are of the opinion that when the expenditure can be treated as application of amount from current year's income, there is no reason as to why the same should not be treated as spent out of earlier years’ accumulation - no justifiable reason for separating and treating expenditure of ₹ 5,31,43,622 differently from the Prize Money expenditure - Decided in favour of assessee.
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2021 (12) TMI 1067
Late payments towards EPF and ESI u/s 36(1)(va) - Payment before furnishing the return of income under section 139(1) - HELD THAT:- As relying on MOHANGARH ENGINEERS AND CONSTRUCTION COMPANY[2021 (9) TMI 1319 - ITAT JODHPUR] and M/S. STATE BANK OF BIKANER & JAIPUR AND JAIPUR VIDYUT VITARAN NIGAM LTD. [2014 (5) TMI 222 - RAJASTHAN HIGH COURT] the 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 1066
Estimation of income - the appellant is a entry provider and not making actual sales/purchase and earns nominal income by way of commission on issuing bills to parties @ 0.29% to 0.50% - HELD THAT:- As contention raised by the assessee that order passed by the AO in assessee’s own case in succeeding years i.e. AYs 2014-15 & 2015-16 vide order dated 28.12.2016 & 28.12.2017 respectively is applicable to the year under consideration by applying the rate of 0.5% of the total billing is not sustainable because in AYs 2014-15 & 2015-16 there was not even a whisper if assessee had ever entered into the business of providing accommodation entries to the dealers to help them to reduce their tax liabilities rather in those years it was simple case of dealing into wholesale business of trading in which Revenue itself had accepted 0.5% ratio on total billing to assessed income of the assessee.
We are of the considered view that on the basis of succeeding years’ orders having distinguishing facts, assessee’s income cannot be estimated by applying the same ratio i.e. 0.5% - CIT(A) has rightly thrashed the issue in the light of the facts and circumstances of the case and prevailing general practices in the identical trade. Finding no illegality or perversity in the impugned order passed by the ld. CIT (A), appeal filed by the assessee is hereby dismissed.
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2021 (12) TMI 1065
Revision u/s 263 by CIT - As per CIT AO has decided the matter in favour of the assessee without going deep into the issue regarding seized foreign currency and excess income over total expenditure - HELD THAT:- Every loss of revenue as a consequence of an order cannot be termed as prejudicial to the interests of the Revenue. In the case of ITO v. DG Housing Projects Ltd [2012 (3) TMI 227 - DELHI HIGH COURT]as held that revisional power under section 263 of the Act is normally exercised in the case of no enquiry and not in the case of inadequate enquiry. The Assessing Officer has passed the assessment order after making enquiries, Commissioner of Income-tax (Exemptions) has wrongly observed that the Assessing Officer has passed the order without making any inquiry on the issues discussed in the revisional order. The documents referred by the learned counsel do not suggest that the Assessing Officer has passed the assessment order without conducting any enquiry. Hence, in our considered view this was not the case where the Assessing Officer has passed the assessment without making enquiry for holding the same as erroneous.
In the case of. CIT v. Software Consultants [2012 (2) TMI 18 - DELHI HIGH COURT] the hon'ble Delhi High Court has held that where no addition is made on the grounds mentioned in the reasons recorded for reopening of the assessment, the assessment order cannot be said to be erroneous under section 263 of the Act In the present case the Assessing Officer has not made any addition on the ground mentioned in the reasons recorded Hence, the findings of the learned Commissioner of Income-tax (Exemptions) are not in consonance with the ratio laid down in the aforesaid case - we allow the appeal of the assessee and set aside the impugned order passed by the learned Commissioner of Income-tax (Exemptions) under section 263 of the Act. - Decided in favour of assessee.
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2021 (12) TMI 1064
Provisional release of goods - import of Dry Dates - non-furnishing of Phytosanitary Certificate of country of origin - HELD THAT:-The show cause notice is required to be issued within six months from the seizure of the goods and if the show cause notice cannot be issued within six months, then after recording the reason in writing, the period can be extended for another six months. Further, in case of the goods were provisionally released, then the period of six months shall not apply. Admittedly, in this case, the goods were not allowed to be released provisionally. Therefore, the time limit prescribed under Section 110(2) of the Act shall apply to the facts of the case. Therefore, the show cause notice was required to be issued within six months from the date of seizure i. e. till 01.01.2021, further no time limit has been extended by recording the reasons in writing as the proviso to Section 110(2) of the Act.
In the show cause notice, it has been mentioned that the show cause notice was required to be issued on 17.03.2021 under Section 110(2) of the Customs Act, 1962 which has been extended by letter dt. 16.03.2021 that the same has been extended up to 30.06.2021 which is against the law as six months period was expired on 01.01.2021 of the seizure and within six months till 01.01.2021, the Revenue was required to pass an order recording reasons in writing for extension of time. No such order is placed on record - the show cause notice issued to the appellant is barred by limitation, therefore, the show cause notice for absolute confiscation is not sustainable. Accordingly, the goods are required to be released to the appellant after examination thereof to find out whether same are fit for human consumption or not and the demurrage and detention charges are required to be waived.
The two parallel proceedings cannot continue together. As the show cause notice dated 30.06.2021 has been issued beyond the time limit prescribed under Section 110(2) of the Act, therefore, the show cause notice dt. 30.06.2021 is barred by limitation and the goods are required to be returned to the appellant. As the Show Cause Notice dated 16.11.2021 is not the subject matter of the appeal, therefore, the Revenue is at liberty to adjudicate the show cause notice dt. 16.11.2021 in accordance with law.
The show cause notice has been issued to the appellant beyond the time limit prescribed under Section 110(2) of the Act on 30.06.2021 whereas the goods have been seized on 19.05.2020 and no order recording reasons in writing has been passed for extension of time, therefore, the show cause notice issued to the appellant for absolute confiscation of the goods is not sustainable - Revenue is directed to release the goods to the appellant after examining the same whether same are fit for human consumption or not and the demurrage and detention charges are required to be waived.
Appeal disposed off.
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2021 (12) TMI 1063
Sanction of scheme of merger / amalgamation - whether the Tribunal has power to dispense with the meetings of the unsecured creditors of both the Companies? - Section 230 and 232 of the Companies Act, 2013 read with Rule 4 of the Companies (Compromises, Arrangements and Amalgamations), Rules 2016 framed thereunder read with Rule 34 of NCLT Rules, 2016 - HELD THAT:- Keeping in view the lockdown owing to the Covid-19 pandemic and in case physical meetings are not feasible, the meetings of the Unsecured Creditors as aforesaid may be conducted through Video Conferencing or any other audio-visual means capable of being recorded. The raw unedited footage shall be preserved for verification.
Both the applicant companies serve notice upon the Regional Director, Ministry of Corporate Affairs, Registrar of Companies, Income Tax Department within whose jurisdiction the assessments of the Applicant Companies are made, the Official Liquidator in case of both the Applicant Companies and GST, BSE, NSE and SEBI in case of transferee company, pursuant to Section 230(5) of the Companies Act, 2013 read with Rule 8 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - Application disposed off.
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2021 (12) TMI 1062
Valuation of shares - shares were valued at higher price and were allotted at higher price- HELD THAT:- The first Respondent company has availed a loan of ₹ 4,70,00,000 from LIC HFL in respect of which ₹ 42697780 was outstanding and the first and second Applicants have given their personal guarantees as security towards this loan. We maintain that in order to safeguard the interest of the Company, this loan until it is fully repaid, would continue for which the guarantee of the Applicants would also continue. As this is a long pending case, in order to cordially dispose the matter, this Tribunal, after having duly considered the decision of Hon’ble NCLAT upholding NCLT Chennai Bench decision and taking into consideration the submissions of both the Parties, particularly the interest of the company to continue the Loan from LIC HFL, is of the opinion that the group quoting higher price shall purchase the shares of the other group quoting lower price.
Applicants/ Respondents- K.J Paul, Bindu Paul and K. A. Mathaiare are directed to purchase 60,000 shares of Respondents/ Petitioners- P. M. Johny and K. P. Augustine at the rate of ₹ 1941/- each within a period of one month and file a compliance memo to that effect, before this Tribunal - Application disposed off.
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2021 (12) TMI 1061
Rejection of Application of the Appellant for transmission of shares - Section 58 of the Companies Act, 2013 - appellant having locus standi to file appeal or not - time limitation - Whether the Appeal filed with appropriate documents? - HELD THAT:- In the appeal it is stated that “A true and correct copy of the Section 56 application dated 19.03.2020 is produced herewith and marked for reference as Exhibit P-8”. We have gone through the Exhibit P-8 and found that the Application for Transmission of Shares/ Debentures produced by the Appellant is not in proper form and the same is defective due to lack of fulfilment of the appropriate columns in the Application.
Whether the Appellant have locus standi to file this Appeal? - HELD THAT:- The Articles of Association of the Respondent Company clearly depicts that without stating any reason thereof where it is not proved to their satisfaction that the proposed transferee is a responsible person the Board may refuse to register any transfer of shares, subject to the provisions of the Companies Act, 1956 - the Appellant filed a defective application before the Respondents without legal succession certificate and that Appellant did not have locus standi to file this Appeal.
Whether this Appeal is barred by limitation? - HELD THAT:- This Appeal has been filed before this Tribunal on 01.10.2020 i.e., after 93 days from the date of rejection of the Application. Hence, the application is barred by limitation period under Section 58(3) of the Companies Act, 2013.
Application dismissed.
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2021 (12) TMI 1060
Seeking winding up of company - Section 271 (a) of the Companies Act, 2013 - HELD THAT:- Since the Company or its representatives have not named an Insolvency Professional to be appointed as Provisional Liquidator, this Tribunal takes the name of Insolvency Professional from the panel of IP’s approved by the IBBI for the period from 01.07.2021 to 31.12.2021 for being appointed as the provisional Liquidator.
Mr. Rajmohan R appointed as the Provisional Liquidator to carry out the functions as mentioned under Section 290 of the Companies Act, 2013 - application allowed.
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2021 (12) TMI 1059
Sanction of scheme of arrangement - sections 230 to 232 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- Various directions with regard to holding, convening and dispensing of various meetings issued - directions with regard to issuance of various notices also issued.
The scheme is approved - application allowed.
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2021 (12) TMI 1058
Seeking modification of discrimination in payment under the Resolution Plan on the basis of the Assenting and Dissenting/Abstaining Financial Creditor - seeking that all Secured Financial Creditors (FCs) inter alia Applicants be treated equally for payment of plan value subject to their individual exposure with the same terms as that of Assenting FCs - HELD THAT:- Section 30(2)(b) of the Code provides for the payment of debts of the Dissenting FCs in such manner as may be specified by the Board, which shall not be less than the amount to be paid to such creditors in accordance with Section 53(1) of the Code in the event of liquidation. Explanation 1 to Section 30(2)(b) of the Code further clarifies that distribution in accordance with the provisions of this clause shall be fair and equitable to such creditors - It is pertinent to note that the invocation of BG is as per the terms of Resolution Plan. Thus, any increase in the claim amount of the Assenting FCs due to the invocation of such BG cannot be a ground for challenge by the Dissenting FCs on grounds of discrimination. Further, the decision to include the invoked amount of the BG to the fund-based debts is a commercial decision of the CoC.
It is noted that the BG invocation and the revision in the amounts of Assenting FCs is as per the terms of the Resolution Plan - Resolution Plan once approved by the AA shall stand frozen and shall be binding on all stakeholders including FCs.
Application dismissed.
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2021 (12) TMI 1057
Interpretation of statute - section 17 of IBC - Confusion regarding section 17 among Corporate Debtors and practitioners - main allegation was that the Respondent/ Resolution Professional has failed to take over the affairs of the Corporate Debtor and to immediately take over custody and control of the assets without taking necessary steps to ascertain the financial position of the Corporate Debtor - HELD THAT:- A plain reading of the Section 18 of IBC makes it clear that the Code empowers the Resolution Professional to take control and custody of any property which the Corporate Debtor has complete ownership. This power of the Resolution Professional extends to properties that are part of the court proceedings. Section 20 mandates the IRP to preserve and protect the value of the property and to manage the operations of the corporate debtor as a going concern. But in this case, even though the RP is empowered to take possession of the Registered Office and records of the Corporate Debtor, he has taken only symbolic possession of the same and allowed the suspended Directors to enjoy for their benefits. This is against the provisions of the Code.
With the concept of Creditors in Control under IBC, after the initiation of the Corporate Insolvency Resolution Process (CIRP), the CoC assumes decision-making powers for the management of the CD. IRP/ RP is an independent professional to take care of the interests of all the stakeholders. Thus both IRP/RP and CoC have to work in tandem and the overall interest of resolution while balancing the interests of all stakeholders. But here there is a clash of interest among the member of CoC and the Resolution Professional. In its first meeting of the CoC, it appointed the Resolution Professional, who was then convening and conducting the meetings of the committee - On verification of records of this case, it is seen that only one meeting of Committee of Creditors took place with the presence of Resolution Professional, and without making any endeavour for inviting Expression of Interest, the CoC unanimously resolved to liquidate the Corporate Debtor.
In the interest of justice the time spent till now before the Adjudicating Authority from the 2nd CoC Meeting till the date of this order should be excluded from calculating the period under Section 12 (1), (2) &(3) of the IBC - Since, the Committee of Creditors is reconstituted with the Financial Creditor M/s Bajaj Finance Limited and the Operational Creditor is not having any voting right in the CoC, the main prayer to permit them to change the Resolution Professional and refer the case to Insolvency and Bankruptcy Board of India (IBBI) for proposing the name of a new RP cannot be entertained, since they have no locus standi to do so.
Application disposed off.
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2021 (12) TMI 1056
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - whether the provisions of Section 10A stand attracted to an application under Section 9 which was filed after 5th June 2020 (the date on which the provision came into force) in respect of a default which has occurred after 25 March 2020? - HELD THAT:- Under Section 9(1), the Operational Creditor may file an application before the Adjudicating Authority for initiating the Corporate Insolvency Resolution Process (“CIRP”), after the expiry of a period of ten days from the date of delivery of the notice (or invoice demanding payment) under Sub-Section (1) of Section 8, if the operational creditor does not receive payment from the Corporate Debtor or a notice of the dispute under Sub-Section (2) of Section 8 - The proviso to Section 10A stipulates that "no application shall ever be filed" for the initiation of the CIRP of a corporate debtor "for the said default occurring during the said period". The explanation which has been inserted for the removal of doubts clarifies that Section 10A shall not apply to any default which has been committed under Sections 7, 9 and 10 before 25 March 2020.
It is clear that the Executive in the Promulgation of the Ordinance to meet an extraordinary situation and to avoid causing further stress to the already beleaguered businesses due to COVID pandemic throughout the world and also in addition affected by the lock down enforced by the State of the Union, all beyond their control have chosen to suspend the filing of any application in relation to defaults arising on or after 25.03.2020 - the Corporate Debtor received the products in various lots on 21.03.2020 and 23.03.2020 and also on 30.05.2020, where the part payments were made on 28.05.2020 and 28.07.2020 into the bank account of the Operational Creditor against the total amount due. Therefore, the date of default cannot be considered as 21.03.2020, as it is only the date of order but from the date 28.07.2020, the Corporate Debtor failed to pay the balance amount.
The records produced as evidence to prove the outstanding dues categorically show the default date as 28.07.2020 and not 21.03.2020 - the applicant purposefully sought amendment of the date of default in this application to fall outside the preview of Section 10A of the Code, by hood winking this Tribunal in order to substantiate the efforts of the Operational Creditor and to recover their legitimate dues.
It is clearly established that an attempt is being made to deliberately misuse the provisions of Insolvency & Bankruptcy Code defeating the very intent for which it was enacted - the application filed by the Operational Creditor stands rejected under Section 60 (5) of Insolvency & Bankruptcy Code, 2016 - Application dismissed.
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2021 (12) TMI 1055
Scope of Liquidation estate - appellant were workmen/ employees of Excel Glasses Limited under Section 42 of Insolvency & Bankruptcy Code, 2016 - 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.
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. However, no such decision or award is available in favour of the workmen entitling them to claim these amounts - Appeal dismissed.
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2021 (12) TMI 1054
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - minimum threshold limit for filing an application under sections 7, 9 and 10 of the IBC, 2016 - HELD THAT:- In proceedings before the Tribunal, when a liberty is being granted to a person, it goes without saying that the said liberty can be availed only if it is in consonance within the procedure established under the law for the time being in force. It is to be noted that as on the date when the liberty was granted to the operational creditor, the minimum threshold limit for filing an application under sections 7, 9 and 10 of the IBC, 2016 was ₹ 1 lakh. However, the Central Government through the Ministry of Corporate Affairs vide Notification No. S. O. 1205(E), dated March 24, 2020 has increased the minimum threshold limited from ₹ 1 lakh to ₹ 1 crore. Hence, on and from March 24, 2020 all the applications filed under sections 7, 9 and 10 of the IBC, 2016 before this Tribunal are required to satisfy the said condition and the debt amount due as claimed in Part-IV of the application is required to cross the threshold limit of ₹ 1 crore.
A liberty granted by this Tribunal, cannot act in derogation or in violation of the law which is prevailing time being in force - a liberty being granted to the operational creditor to file a fresh application in case a default occurs cannot be stretched to such an extent that would circumvent the law which is prevailing as on date.
It is now trite, that the Notification issued by the Central Government vide S. O. No. 1205(E), dated March 24, 2020 by increasing the pecuniary jurisdiction of this Tribunal from ₹ 1 lakh to ₹ 1 crore would operate prospectively, that is to say the said notification would be applicable to the matters which are filed before this Tribunal on and from March 24, 2020 - the application filed by the operational creditor before this Tribunal falls well short of the pecuniary limit of ₹ 1 crore and as a consequence thereof, the application is liable to be dismissed.
Application dismissed.
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2021 (12) TMI 1053
Maintainability of petition - availability of alternative remedy of appeal - Validity of Provisional Attachment order - HELD THAT:- The writ petition is partly allowed by directing that, subject to the petitioners filing a statutory appeal before the Appellate Tribunal within a period of two weeks from today, the parties will maintain status quo qua the subject matter of the impugned order till the petitioners’ appeal and stay application are taken up for consideration by the Tribunal as and when it becomes functional.
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2021 (12) TMI 1052
Time limitation - time barred assessment - no justification for passing the assessment order under the extended period of limitation - non-filing of return - challenge has been made on the ground that the assessment had become time barred; there was no justification for passing the assessment order under the extended period of limitation - HELD THAT:- The above ground is not a sufficient ground for invoking our writ jurisdiction under Article 226 of the Constitution of India when there is a statutory alternative remedy in the form of provision for appeal i.e., Section 85 of the Finance Act, 1994. That being the position, we decline to entertain the writ petition and relegate the petitioner to the forum of appeal, as provided under the statute. To enable the petitioner to file the appeal, we direct that for a period of three weeks from today, no coercive action shall be taken against the petitioner.
Petition disposed off.
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2021 (12) TMI 1051
Reversal of CENVAT Credit - capital goods or not - lease rentals - set top boxes and other CPE’s supplied to the consumers on the rental basis - HELD THAT:- The issue in respect of the CPE, provided by the appellant on rental basis, which upon deactivation of service have not been returned back by the customer, to the appellants have been dealt by the tribunal in various cases - reliance can be placed in the case of VIDEOCON D2H LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX [2020 (2) TMI 1254 - CESTAT MUMBAI] where it was held that In the absence of any specific statutory provision requiring such reversal along with absence of further availment of credit by any other assessee, it is held that the impugned order is erroneous in its presumption and in application of law.
Reversal not required - appeal allowed - decided in favor of appellant.
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2021 (12) TMI 1050
CENVAT Credit - availment and utilization of credit on the basis of the invoices addressed to the assessee, other than the registered office premises - contravention of the rule 3 (i) of the Cenvat Credit Rules 2004 or not - extended period of limitation - HELD THAT:- The issue involved in the present case is squarely covered by the decision of the Tribunal in the case of KINETIC ADVERTISING (I) PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-II [2018 (6) TMI 257 - CESTAT MUMBAI], wherein the Tribunal relying on the decision in MANIPAL ADVERTISING SERVICES PVT. LTD. VERSUS CCE., MANGALORE [2009 (10) TMI 434 - CESTAT, BANGALORE] has held that Appellants are eligible for the credit availed by them on the invoices issued to their branch offices.
However, on perusal of the ST-3 Returns enclosed, it is found that, the appellant has in column of ‘Cenvat Credit Taken’ indicated the credit taken ‘nil’ throughout. Although in the column of ‘Credit utilised’, they have indicated the utilization of credit in each of the Return for every month. Undisputedly, the show cause notice has been issued to them for denial of the credit taken., whereas the appellant has summarized the utilization of the credit as not the credit taken. They have not substantiated their claim by ST-3 Returns to the effect that they have not taken the credit by producing the relevant cenvat credit register - Para 41 of the impugned order cannot be faulted with as the appellant has failed to produce the cenvat credit register before the concerned adjudicating authority. However, this issue becomes irrelevant.
As the demand of service tax is being set aside, so is the demand of interest and penalty imposed on the appellant - appeal allowed - decided in favor of appellant.
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