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Showing 101 to 120 of 405482 Records
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2024 (4) TMI 905
Invocation of Extended period of Limitation - Suppression of facts or not - Classification of services - real time courses provided by the Appellant - Online information and data base access and/or retrieved service (OIDAR service) or commercial training or coaching service? - HELD THAT:- On perusal of the facts in the instant case, we note that the appellant was asked to submit copies of their Balance Sheet for the period 2007–2008, along with the details of the payments collected from clients/members on account of each of the services provided by them from 1.4.2007 to Sept 2008 and list of members and clients from whom such payments had been collected. It is seen that the appellant did not reply to the letter nor did they supply the requisite information. This was followed up with letter dated 23.02.2009 requesting the appellant to furnish the details on the gross amount collected and the amount on which service tax had been paid during the period 01.4.2007 to 31.01.2009. As the appellant did not cooperate, it is seen that the Asst Commissioner of Service Tax, Division – 1, issued a show cause notice dated 05.3.2009 under Section 77 of the Finance Act, 1994 for non-furnishing of information. Following the receipt of this notice, the appellant filed their letter dated 17.3.2009 and supplied certain information. The Department took a view that the information supplied by the appellant prima-facie was incorrect and grossly undervalued.
Having two sets of annual financial statement showing different figures clearly establishes the malafide intent of the appellant to mislead the investigations. Further, it is noted that the details as submitted by the appellant vide their letter dated 17.3.2009 was incorrect and the allegation of suppression of the taxable value is substantiated by the adjudicating authority in the impugned order.
The Supreme Court’s explained “suppression of facts" in PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [1995 (3) TMI 100 - SUPREME COURT], wherein the Apex Court examined whether the Department was justified in initiating proceedings for short levy after the expiry of the normal period of six months by invoking the proviso to section 11A of the Excise Act. The proviso to section 11A of the Excise Act carved out an exception to the provisions that permitted the Department to reopen proceedings if the levy was short within six months of the relevant date and permitted the Authority to exercise this power within five years from the relevant date under the circumstances mentioned in the proviso, one of which was suppression of facts. It is in this context that the Supreme Court observed that since “suppression of facts’ has been used in the company of strong words such as fraud, collusion, or wilful default, suppression of facts must be deliberate and with an intent to escape payment of duty.
The intention of the appellant to deliberately escape payment of tax is corroborated by the fact that two sets of Balance Sheets for the same year showing different figures of income were found during the search operations. The contention that the department had relied on the data which was based on the statement of Mr. Manoj Kumar Satyawali who is not a technical expert to generate such figures from the server, is not acceptable as the employee was working as Technical Support Executive-Customer Care and was incharge of the in-house server. In his statement, he has stated that he can only extract data, but did not have the power to amend or change the data. Therefore, the demand confirmed for by the instant show cause notice is liable to be upheld.
The activity undertaken by the appellant from April 2009 was that of basic learning programs which were pre-recorded on a CD/DVD. The customers/subscribers may use such CD/DVD for their learning nothing more than this is being undertaken. From the above, it is noted that the activity being undertaken by the appellant is a sale and did not involve any service. For the period till 30.6.2012, vide Not No. 12/2003 ST, the value of goods, if any, was to be deducted for the levy of service tax. It is also noted that service tax and VAT are mutually exclusive taxes, and therefore levy of one would exclude the other - It has also been brought to notice that the subsequent show cause notices for the period 2013–14 and 2014–15 have been decided in the appellant’s favour. It is also been pleaded that these orders have not been challenged by the department and have hence attained finality. It is also noted that the appellant did not have any authorised training centres as well. Consequently, the demand under Franchise service confirmed in respect of the demand notice dated 17.10.2011 does not survive.
The demand confirmed in respect of the show cause notice dated 21.4.2010 for the period 2007-08 and 2008-09 along with interest, and equal penalty imposed under section 78 is upheld - the issue relating to quantification of the demand taking into consideration the contentions regarding cum-duty tax is remanded to the adjudicating authority for recalculation of demand and consequently the amount of penalty under Section 78 of the Finance Act, 1994 - the demand confirmed under the remaining 5 show cause notices set aside - appeal is allowed partially by way of remand.
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2024 (4) TMI 904
Maintainability of petition - alternative appeal - waiver of pre-deposit - seeking the petitioner be relegated to appeal jurisdiction under Section 86 of the Finance Act, 1994 and direct the Tribunal to grant waiver of pre-deposit - HELD THAT:- An alternative efficacious remedy is available to the petitioner wherein, the petitioner has already filed his appeal. The very fact that the petitioner has already filed the appeal, precludes this Court from now examining this matter in writ jurisdiction. The petitioner cannot be allowed to be sitting on the fence. The filing of this petition is nothing but an after thought as the petitioner wants to escape the liability of payment of pre-deposit, which is mandated by law.
In a catena of judgements, the Supreme Court and various High Courts have categorically held that the condition of the pre-deposit cannot be waved/modified by the High Court in its extraordinary discretionary writ jurisdiction. Any discretion to be exercised by the writ Court is judicial in nature and is required to be exercised only in accordance with law. If the High Courts were to interfere/tinker with the amount of pre-deposit to be deposited, the entire provision of pre-deposit would become otiose.
A Division Bench of this Court in Shri Subhash Jain v. Commissioner of Central Goods And Service Tax [2023 (4) TMI 52 - ALLAHABAD HIGH COURT] has categorically held that in case of Central Excise Act the Courts does not have the power to waive the pre- deposit. The Division Bench of Bombay High Court in Kantilal Bhaguji Mohite v. Commr of C. Excise & Service Tax, Pune-III [2019 (2) TMI 1029 - BOMBAY HIGH COURT] has similarly laid down the ratio with regard to waiver of pre-deposit.
The judgements in Shri Subhash Jain and Kantilal Bhaguji Mohite are binding - this petition has no merit - petition dismissed.
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2024 (4) TMI 903
CENVAT Credit - inputs - respondent does not possess any furnace to use such inputs in or in relation to manufacture of final product - whether for the purpose of eligibility of Cenvat Credit, the classification of the input is irrelevant? - burden of proof upon the respondent to establish that the goods covered under Central Excise Tariff sub-heading No.72044100 procured by the respondent treating them as `inputs’ has been used in the manufacture of finished products without requiring a furnace in the factory - HELD THAT:- As a general proposition, the Tribunal may be right that the classification issue will not be a relevant issue for the purpose of claiming of Cenvat credit. However, when an issue is argued before this Court at the instance of the assessee and the revenue, the Court is bound to consider the same.
Having said so, it is now require to examine whether the Tribunal was right in allowing the assessee’s appeal - In paragraph 13 of the impugned order, the Tribunal has taken note of the factual position and found that the assessee had purchased goods from SAIL and others and they have been subjected to heating, straightening to make them suitable for rolling and sometimes cut to sizes and then rerolled to manufacture their final products and the rolling mill installed by them have the capacity to roll such items. This factual position appears to have not been shown to be wrong by the Department.
Further, the Tribunal has noted that the respondent’s rolling mill has the capacity to roll such items and the Department has not produced any evidence to counter the claim. The argument on behalf of the revenue before is by referring to the observations made by the adjudicating authority in paragraph 6.2 of the order-in-original dated 13th February, 2017. However, the said observation is not relatable to the respondent assessee since the adjudicating authority after referring to the classification under Tariff Item No.72044100 makes an observation that for manufacture of MS Flat/Bar, MS Channel, MS Round, MS Angle, MS Ribbed Bar etc. There is a requirement of ingots and billets. However, this observation made by the adjudicating authority does not relate to the factual position of the assessee’s case.
Thus, there are no question of law much less substantial questions of law arising for consideration - appeal dismissed.
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2024 (4) TMI 902
CENVAT Credit - removal of capital goods as waste and scrap - waste and scrap of fire brick after use in the kiln during the period 2010-11 (upto February 2015) - Rule 3 (5A) of Cenvat Credit Rules, 2004 - HELD THAT:- Rule 3 (5A) of Cenvat Credit Rules, 2004, though provides that in case of removal of capital goods as waste and scrap, the assessee is required to pay the duty after reducing 2.5% per quarter for the period of use of capital goods. However, the appellant have taken the support of decision of BIRLA CORPORATION LTD. VERSUS COMMR. OF C. EX., RAIPUR [2002 (11) TMI 239 - CEGAT, COURT NO. IV, NEW DELHI] which deals with the provisions of 57S (2)(c) of Central Excise Rules, 1944 which provides that in case of removal of capital goods as waste and scrap, the assessee is required to pay the duty after reducing 2.5% per quarter for the period of use of capital goods.
The appellant have taken the support of decision of Birla Corporation Limited which deals with the provisions of 57S (2)(c) of Central Excise Rules, 1944 where it was held that where capital goods are sold as waste and scrap, the manufacturer shall pay the duty leviable on such waste and scrap.
It can be seen that the provisions for payment of duty on waste and scrap of capital goods in both the above rules are almost Pari-Materia, therefore, the decision of Birla Corporation is applicable.
In view of the above decision the principal bench of Tribunal held that the use of fire brick which is dismantle from the under shell of kiln is not liable to duty as waste and scrap. Since the fact of the present case is identical to the above decision and considered view taken by the Tribunal on the identical facts, the duty on waste and scrap is not liable to be paid.
In the present case also the appellant is not liable to pay the duty confirmed by the lower authority - the impugned order is set aside. Appeal is allowed.
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2024 (4) TMI 901
Reversal of CENVAT Credit - Interest liability on Reversal - reversal of proportionate input credit relating to the exempted goods cleared every month properly during the periods from November 2007 to January 2011 and from November 2008 to December 2010 - Rule 6(3)(a) and Rule 6(3)(ii) of CENVAT Credit Rules - HELD THAT:- The appellant’s claim that sufficient balance was available in CENVAT Credit account to reverse the credit and no pecuniary benefit was derived in any manner has not been contested by Revenue. Under the CENVAT credit scheme there was no co-relation of the raw material and the final product, and the manufacturer is entitled to use the credit at any time thereafter when making payment of excise duty on the excisable product. The government has not been deprived of duty on the date it became due as sufficient credit was available to take care of the debits made even without taking the disputed credit into account.
The Hon’ble High Court of Karnataka in COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX LARGE TAXPAYER UNIT, BANGALORE VERSUS M/S BILL FORGE PVT LTD, BANGALORE [2011 (4) TMI 969 - KARNATAKA HIGH COURT] has examined the judgment of the Hon’ble Supreme Court in UOI AND ORS. VERSUS IND-SWIFT LABORATORIES LTD. [2011 (2) TMI 6 - SUPREME COURT] and distinguished the same. The Hon’ble High Court held that when the assessee has not taken the benefit of the CENVAT credit, there is no liability to pay interest. Once the credit entry was reversed, it is as if the CENVAT credit was not available.
Also, no interest is payable in the circumstances and the question of imposition of a penalty does not arise.
The impugned orders are hence set aside, and the appeals are allowed.
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2024 (4) TMI 900
Refund of accumulated credit - appellant who pays service tax under reverse charge mechanism can also be called ‘output service provider’ or not - manufacturer of goods having ‘nil’ tariff rate of duty is eligible for Cenvat Credit at all.
Refund claim - HELD THAT:- The comprehensive coverage of MODVAT was achieved by 1996-97 by introduction of Central Value Added Tax (CENVAT).Later CENVAT scheme also allowed credit of services and the basket of inputs, capital goods and input services could be used for payment of both central excise duty and service tax. Thus, it does not stand to reason, for denying input tax credit and its refund in certain situations, on the ground that the legal provisions of such a refund is not applicable to such other persons, who have been made liable to pay service tax under Section 68(2) ibid.
Further, it is also found that the above issue is no more open to dispute as in the appellants’ own case COMMISSIONER OF CE & SERVICE TAX, KOLHAPUR VERSUS ROYAL FOODSTUFF PVT. LTD. [2018 (8) TMI 601 - CESTAT MUMBAI], the Tribunal has held that they are eligible to refund of CENVAT credit under Rule 5B ibid and distinguished the other cases where the Tribunal had ordered for dismissal of the appeals filed by the appellants.
Eligibility to CENVAT credit to a manufacturer of goods having ‘nil’ tariff rate of duty - HELD THAT:- The provisions under Sub-rule (6)(v) to Rule 6 clearly provide that the restriction or denial for non-availability of Cenvat credit under various sub-rules of Rule 6 shall not be applicable for manufacture of exempted goods which are cleared for export. Thus, the findings of the learned Commissioner (Appeals) in denial of Cenvat credit on the ground that the appellants being manufacturer of Nil rated goods, would stand covered by the restriction under Rule 6(1) ibid is incorrect and is not legally sustainable.
Furthermore, the above issue is no more res integra in view of the judgement delivered by the Hon’ble High Court of Bombay in the case of UNION OF INDIA VERSUS SHARP MENTHOL INDIA LTD. [2011 (4) TMI 27 - BOMBAY HIGH COURT] where it was held that since the exempted menthol crystals as well as dutiable peppermint oil manufactured out of duty paid menthol have been exported by the assessee, the provisions of Rule 6(1) to 6(4) of the 2004 Rules are not applicable and as per Rule 5 of 2004 Rules, the assessee was entitled to avail the Cenvat credit of duty paid on menthol used in the manufacture of exempted menthol crystals and utilize the said credit for payment of duty on clearance of peppermint oil either for home consumption or for export. In the present case, since the peppermint oil has been exported on payment of duty, the assessee was entitled to claim rebate of the duty paid on peppermint oil.
Thus, it is found that there are no strong grounds to deny refund of CENVAT credit under Rule 5B of CENVAT Credit Rules, 2004. Consequently the impugned order dated 29.09.2015 is not legally sustainable.
The appellants are eligible for total refund of CENVAT credit of Rs. 12,65,459/- in respect of the claims given - the impugned order is set aside - appeal is allowed in favour of the appellants.
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2024 (4) TMI 899
Short payment of Central excise duty - reversal of irregular credit - revenue neutrality - difference in book stock and physical stock - Proof of replacement of goods - Extended period of Limitation.
Short payment of duty - stock transfer of goods to their sister concern - HELD THAT:- Demand has been raised on the appellant holding that certain elements of cost have not been added while ascertaining the assessable value. It is observed that the department has not adduced any evidence to the effect that which cost was not included and why such cost is to be included. In the absence of any specific cost not added in the assessable value by the appellant, we observe that the allegation of the department is not substantiated.
Revenue Neutrality - HELD THAT:- The entire exercise is revenue neutral and thus the demand is liable to be set aside on this ground alone - reliance placed on the decision of this Tribunal in the case of M/S. HINDALCO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, BHUBANESWAR-II [2023 (5) TMI 720 - CESTAT KOLKATA] wherein on similar facts, this Tribunal has held that when the entire exercise is revenue neutral, the demand is not sustainable as the duty paid will be available as credit for their sister unit and there is no loss of revenue to the exchequer.
The demand confirmed in the impugned order on this count is not sustainable and accordingly, the same is set aside.
Short payment of duty on the goods sent free of cost to customers - HELD THAT:- The appellant has adopted the valuation method of 110% of the cost, to pay duty on the free supplies to customers - it is observed that when similar goods are not sold by the appellant, the valuation adopted by the Appellant is valid and thus we hold that there is no short payment of tax. Accordingly, the demand confirmed in the impugned order on this count is not sustainable and hence the same is set aside.
Denial of CENVAT Credit taken on the goods rejected by the customers and returned to the supplier and subsequently replaced - HELD THAT:- When the goods are purchased as inputs but are later returned for being defective and are replaced by the supplier, credit cannot be denied to the supplier. In support of this contention reliance placed on the decision of the Tribunal in the case of ERICSSON INDIA PVT. LTD. VERSUS COMMISSIONER OF C. EX. & S.T., JAIPUR [2014 (10) TMI 896 - CESTAT NEW DELHI], Approved in COMMR. OF C. EX. & S.T., JAIPUR-I VERSUS ERICSSON INDIA PVT. LTD. [2018 (1) TMI 1266 - RAJASTHAN HIGH COURT].
Proof of replacement of goods - HELD THAT:- It is observed that the SAP entries will prove that the goods retuned have been replaced or not. However, credit on the goods returned cannot be denied to the appellant on only procedural ground. Accordingly, the demand confirmed in the impugned order on this count is not sustainable and hence the same is set aside.
Denial of CENVAT Credit related to services not used in relation to manufacture of final products - HELD THAT:- It is observed that the credit in this case has been availed by the Appellant on certain installation and other services which were availed in respect of Erection, Commissioning, Installation provided by the Appellant at the head office. It is observed that there is no specific finding in the impugned order for denial of this credit to the appellant. Accordingly, the appellant is eligible for this credit.
Demand of duty on account of difference in book stock and physical stock in respect of Plate Hardox and MS Plate - HELD THAT:- The duty has been demanded from the appellant on the assumption that the said goods have been removed without payment of duty. We observe that the department has not produced any evidence to substantiate the allegation that the goods have been clandestinely removed by the Appellant without payment of duty. It is a settled law that no demand can be raised without any evidence or proof of clandestine removal. Since there is no evidence available on record to substantiate the allegation of clandestine removal, the demand confirmed in the impugned order on this count is not sustainable and accordingly the same is set aside.
Since the demands of central excise duty and the reversal of Cenvat Credit confirmed in the impugned order are held to be not sustainable, the question of demanding interest and imposing penalty on the appellant does not arise.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 898
Prayer for listing the review petitions in open Court/oral hearing - Taxability - gutka/gutkha/guhtka - appellants argued that state legislatures were not empowered to levy sales tax on those articles, in view of the provision in the Constitution enabling the Union to levy additional duties of excise, and further that in any case, the rate of state tax cannot exceed the limit prescribed by the Central Sales Tax Act, 1956.
HELD THAT:- Prayer for listing the review petitions in open Court/oral hearing is rejected - no case for review of the common judgment dated 4-5-2023 is made out.
The review petitions are, accordingly, dismissed.
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2024 (4) TMI 897
Legal implication of a promotional trailer - promotional trailer is an offer or a promise - unfair trade practice - absence of specific content from the trailer in the movie - whether there is any ‘deficiency’ in the provision of the entertainment service that the consumer has availed by paying the consideration through the purchase of a ticket? - HELD THAT:- A promotional trailer is unilateral. It is only meant to encourage a viewer to purchase the ticket to the movie, which is an independent transaction and contract from the promotional trailer. A promotional trailer by itself is not an offer and neither intends to nor can create a contractual relationship. It is well-established in contractual jurisprudence that an advertisement generally does not constitute an offer and is merely an ‘invitation to offer’ or ‘invitation to treat’.
Since the promotional trailer is not an offer, there is no possibility of it becoming a promise. Therefore, there is no offer, much less a contract, between the appellant and the complainant to the effect that the song contained in the trailer would be played in the movie and if not played, it will amount to deficiency in the service. The transaction of service is only to enable the complainant to watch the movie upon the payment of consideration in the form of purchase of the movie ticket. This transaction is unconnected to the promotional trailer, which by itself does not create any kind of right of claim with respect to the content of the movie.
In various decisions, LAKHANPAL NATIONAL LTD. VERSUS M.R.T.P. COMMISSION AND ANOTHER [1989 (5) TMI 321 - SUPREME COURT], KLM ROYAL DUTCH AIRLINES VERSUS DIRECTOR GENERAL OF INVESTIGATION AND REGISTRATION [2008 (10) TMI 353 - SUPREME COURT]. This Court has held that a false statement that misleads the buyer is essential for an ‘unfair trade practice’. ibid. A false representation is one that is false in substance and in fact, and the test by which the representation must be judged is to see whether the discrepancy between the represented fact and the actual fact would be considered material by a reasonable person.
The ingredients of ‘unfair trade practice’ under Section 2(1)(r)(1) are not made out in this case. The promotional trailer does not fall under any of the instances of “unfair method or unfair and deceptive practice” contained in clause (1) of Section 2(1)(r) that pertains to unfair trade practice in the promotion of goods and services. Nor does it make any false statement or intend to mislead the viewers - There is another important distinction that we must bear in mind, i.e., the judicial precedents on this point do not relate to transactions of service relating to art. Services involving art necessarily involve the freedom and discretion of the service provider in their presentation. This is necessary and compelling by the very nature of such services. The variations are substantial, and rightly so.
The findings of the impugned order that there is deficiency of service and unfair trade practice is set aside - appeal allowed.
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2024 (4) TMI 896
Dishonour of Cheque - territorial jurisdiction - Foreign instrument - Cheque not made payable in India; and, was not drawn on a bank in India - whether the presentation of the subject cheque at the Branch in Greater Kailash-I, New Delhi will be sufficient to invoke the provisions of Section 138 of the NI Act and make the complaint filed by the respondent no. 2 as maintainable? - HELD THAT:- In the present case, the cheque in question is not made in India; it was not made payable in India; and, was not drawn on a bank in India. It is, therefore, not an ‘inland instrument’ - In the present case, the cheque in question is therefore, a ‘foreign instrument’.
While it is true that in the absence of stipulation that the cheque can only be presented for payment at Dubai, the cheque could be deposited by the respondent no. 2 at its bank in India as far as Section 135 of the NI Act, it requires the cheque to be specifically made payable at a place different from where it was made or indorsed. In my opinion, therefore, merely because there is no prohibition on the cheque being presented for payment at a place different from where it is made or indorsed, Section 135 of the NI Act cannot be attracted - as far as a cheque is concerned, unless specifically made payable at some other place, it must be presented at the bank upon which it is drawn, that is, where the bank of the drawer is situated. This would also have the effect on the place where the offence under Section 138 of the NI Act is said to have been committed, as shall be discussed herein below.
In DASHRATH RUPSINGH RATHOD VERSUS STATE OF MAHARASHTRA & ANOTHER [2014 (8) TMI 417 - SUPREME COURT], the Supreme Court has held that a reading of Section 138 of the NI Act in conjunction with Section 177 of the Cr.P.C. leaves no manner of doubt that the return of the cheque by the drawee bank alone constitutes the commission of the offence and indicates the place where the offence is committed. It held that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank is located. It held that the complainant is statutorily bound to comply with Section 177, etc., of the Cr.P.C. and therefore, the place or situs where the Section 138 complaint is to be filed is not of his choosing; the territorial jurisdiction is restricted to the court within whose local jurisdiction the offence was committed, which is where the cheque is dishonoured by the bank on which it is drawn.
The offence under Section 138 of the NI Act is deemed to have been committed at a place where a cheque is delivered for collection at the branch of the bank of the payee or holder in due course, and the offence shall be inquired into and tried only by a court within whose local jurisdiction, if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated.
In the present case, the cheque was presented for payment by the respondent at Delhi. There is no prohibition of the cheque being deposited by the respondent no. 2 for collection in Delhi. Therefore, in terms of Section 142(2) of the NI Act, the Court at Delhi shall have jurisdiction to inquire into and try the offence under Section 138 of the NI Act.
In the present case, due to the amendment in Section 142 of the NI Act, now the dishonour of the cheque, due to its presentation for payment at the bank of the respondent no. 2 at Delhi, is deemed to have taken place at Delhi. Though, Section 134 of the NI Act states that in absence of a contract to the contrary, the liability of the drawer of a foreign cheque is regulated in all essential matters by the law of the place where he made the cheque, there is nothing in the said provision which would exclude the application of Section 138 of the NI Act read with Section 142 of the NI Act. Merely because the payee or holder in due course of a foreign cheque chooses to present the cheque in India out of mala fide, the application of the provision of Section 138 of the NI Act and the jurisdiction of the court where such cheque is deposited for payment, cannot be ousted.
The unexplained delay itself is sufficient ground for this Court to refuse to exercise its inherent jurisdiction under Section 482 of the Cr.P.C. to quash the complaint at this belated stage.
There are no merit in the present petition, the same is dismissed.
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2024 (4) TMI 895
Seeking renewal of registration of Goods Service Tax (GST) - cancelled due to non-filing of returns - portal open for a limited time period - HELD THAT:- This Court is of the considered view that the interest of the revenue as well as that of the appellant can be protected if the West Bengal GST Authority is directed to restore the appellant’s GST registration and open the portal for a limited time period to enable the appellant to file the return and pay off the amount on account of interest, penalty and late fees including any amount due as tax within the said time frame.
Therefore, we direct the West Bengal GST Authority to restore the appellant’s GST registration and open the portal for a period of 30 days from date to enable the appellant to file the return and to pay any amount due as tax together with interest, penalty and late fees within the said period.
In case the appellant fails to file the return and pay the interest, penalty and late fees including any amount due as tax within the time period stipulated here-in-before, this order shall not have any force and the respondent GST Authority will be entitled to block the portal and the order cancelling the registration shall automatically stand revived.
Thus, the appeal being MAT and the writ-petition being WPA are disposed of.
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2024 (4) TMI 894
Validity Of order passed without signed by the authority - Principles of natural justice - Avoidable mistake - Scope of Section 160 of GST - HELD THAT:- In M/s. SRK Enterprises’ case (cited supra), this Court referred to the previous order of the Co-ordinate Bench in the case of A.V. Bhanoji Row vs. Assistant Commissioner (ST) [2023 (2) TMI 1224 - ANDHRA PRADESH HIGH COURT] and held that the signatures cannot be dispensed with and the provisions of Section 160 & 169 of the CGST Act, 2017 would not come to the rescue.
Thus, we allow this petition and set aside the proceedings/order issued by respondent No. 1 dated 05.06.2023. The respondent authorities to pass fresh orders in accordance with law, expeditiously.
The Writ Petition stands allowed in part in the aforesaid terms.
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2024 (4) TMI 893
Appealable Order - Validity of final assessment order - Return of the documents - violation of the principles of natural justice - HELD THAT:- The submission as advanced by the petitioner’s counsel with respect to the return of the documents raises a disputed question of fact. There is specific mention in the order that the documents were returned. The question whether they were returned or not returned or said P. Nagesh, was the person authorized by the petitioner to receive those documents or not, deserve not to be entered into and decided, in the exercise of the writ jurisdiction, being the disputed questions of fact, might be requiring proof of so many other factual aspects.
Consequently, we do not find any ground of violation of the principles of natural justice, on the argument advanced, so as to entertain the writ petition and to by-pass the statutory remedy of appeal.
The writ petition is dismissed on the ground of statutory alternative remedy for the period with effect from April, 2018 to January, 2023. It is clarified that the writ petition survives for the period from the July, 2017 to March 2018.
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2024 (4) TMI 892
Validity Of Order for Cancellation of Registration passed in Form GST REG-19 - non-application of mind - No opportunity of hearing - managing partner of petitioner’s firm i.e., the deponent, was not able to concentrate on the business operations as he was attacked with paralytic stroke - Violation of Principles of natural justice - HELD THAT:- Admittedly, the petitioner did not file reply to the show cause notice we find force in the submission of the learned counsel for the petitioner that the order suffers from non-application of mind and has been passed mechanically.
On the said point there is no contrary instructions to the learned Government Pleader. Any counter affidavit denying the averments in para-4, of the writ affidavit, has not been filed inspite of opportunity granted. The petitioner has also annexed documents (P3) in support of para 4 of the writ affidavit. We have no reason to disbelieve the same. Consequently, we are of the view that the cause shown for not being able to file the reply to show cause notice is sufficient. The petitioner deserves opportunity of hearing to be granted in consonance with the principles of natural justice.
Thus, we allow the writ petition and quash the impugned order dated 16.06.2023. Writ Petition stands allowed partly.
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2024 (4) TMI 891
Validity of Reopening of assessment u/s 147 - reason to believe - documentary evidence of purchase, delivery and payment to show the genuineness of the transactions entered into - Learned advocate Mr. Karan Sanghani prays for time to call for the original papers containing the documents which are supplied by the petitioner in reply to the notice under Section 148A(b) of the Income Tax Act, 1961.
Stand over to 05th March, 2024. To be listed on top of the Board.
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2024 (4) TMI 890
Accrual of income in India - Royalty receipts - income earned from licensing/sale of software and subscription received against cloud services offered by assessee - scope of Indo-USA DTAA - delay of 301 days in filing SLP - HELD THAT:- As following the earlier order passed in SLP (C) [2024 (3) TMI 670 - SC ORDER] we condone the delay and dismiss the special leave petitions on the basis of the earlier judgment of this Court in the case of Engineering Analysis Centre of Excellence Private Limited vs. Commissioner of Income Tax and Anr. [2021 (3) TMI 138 - SUPREME COURT]
Pending application(s), if any, shall also stand disposed of.
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2024 (4) TMI 889
Reopening of assessment u/s 147 - second re-assessment notice u/s 148A - scope of new regime of reopening of assessment after introduction of provisions of section 148/148A - petitioner participated in the initial re-assessment proceedings, thus consequently, re-assessment orde was passed by the Assessing Authority - Without any challenge rais ed by the petitioner to the reassessment order and that order not set aside by any authority or Court, the petitioner has been visited with second re-assessment notice for A.Y. 2017-18 and Assessing Authority has invoked Section 148-A of the Act - HELD THAT:- As it could not be disputed that neither the petitioner challenged that reassessment order nor that order was revised by the Commissioner nor there was any declaration made by the Supreme Court in rem to annul or in all assessment orders other than those that may have been specifically under challenge in the proceedings before the Supreme Court in Ashish Agarwal [2022 (5) TMI 240 - SUPREME COURT]
Since in the present case, re-assessment order had already been passed on 28.03.2022, there was no proceeding pending as may have been influenced or affected or governed by the subsequent order of Supreme Court dated 04.05.2022 in in Ashish Agarwal case.
It is fundamental, there may exist one assessment order for an assessee for one assessment year. In absence of any declaration of law to annul or set aside the pre-existing re-assessment order dated 28.03.2022, we find no jurisdiction existing with the Assessing Authority to again re-issue the impugned notice. The proceedings are wholly without jurisdiction and a nullity.
Accordingly, the re-assessment proceedings initiated in the case of the petitioner for A.Y. 2017-18 under Section 147 read with Section 148 of the Act, vide re-assessment notice dated 30.07.2022 is quashed - WP allowed.
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2024 (4) TMI 888
Addition of unsecured loans / bogus advances against sales - unexplained cash credit u/s 68 - CIT(A) deleted addition - HELD THAT:- We find that the CIT(A) had categorically observed that the assessee had produced the books of accounts along with day to day purchase, transactions of sales in the succeeding year where sales to these two parties were part of the total sales and declared in the VAT returns which has been accepted. Further the income tax returns of Asst Year 2016-17 also reflected the total sales made by the assessee which admittedly included the sales made to these two parties. The stock registers maintained by the assessee clearly indicated the outflow of stocks from the side of the assessee.
All sales were made through regular banking channels and not through cash. The TIN of these two parties do existed and disclosed in the VAT returns filed by the assessee. F-Forms in the case of the assessee qua the sales made to these two parties were accepted by the VAT authorities.
Hence it is established beyond reasonable doubt that the amounts received from these two parties are not merely loan simplicitor but only advance received for sale of goods. It is a fact that the sale of goods had indeed happened to these two parties from the assessee which was duly accepted by the revenue in Asst Year 2016-17 and also by the VAT authorities. Hence there is no question of treating the amounts received as advance for sale of goods as unexplained cash credit u/s 68 of the Act during the year under consideration. Accordingly, we do not find any infirmity in the order passed by the ld. CIT(A) granting relief to the assessee. Decided against revenue.
Bogus purchases - AO disbelieved the entire contentions of the assessee and proceeded to treat the purchases made from this supplier as ingenuine and disallowed a sum - CIT(A) deleted addition - HELD THAT:- We find that the ld. CIT(A) had given a categorical observation that on perusal of the documents filed by the assessee before the ld. AO, the details of purchase of rice from M/s Prashant Agro Foods and corresponding sales of such purchases were duly verifiable from the day to day stock register which was duly attested by the Market Committee, Karnal. Purchase of goods from M/s Prashant Agro Foods had been shown as goods received in the stock register.
Similarly when those goods are sold, corresponding outflow of stock entry was duly recorded in the stock register. We find that the ld. CIT(A) had referred to the yield of rice that could be derived by the assessee and had compared the same with comparable instances.
CIT(A) had even compared the yield of rice derived during the year at 68.36% which was 67% in the immediately preceding assessment year. CIT(A) also observed that the books of accounts and the book results were not rejected by the ld. AO and purchases from M/s Prashant Agro Foods alone had been doubted by the ld. AO. Even for this disputed purchases, the corresponding sales had been accepted by the ld. AO. Accordingly, he deleted the disallowance of purchases correctly - Decided against revenue.
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2024 (4) TMI 887
Deduction u/s 80P(2)(d) - interest received from the investments with the cooperative bank - HELD THAT:- As considered the order of the Ld. CIT(A) for the A.Y. 2017-18. We find that identical grievance was raised before the Ld. CIT(A) on identical set of facts and after considering the facts and the submissions and drawing support from various judicial decisions, the Ld. CIT(A) allowed the claim. It is true that revenue has not filed any appeal against the order of the Ld. CIT(A) which means the issue has attained finality in the previous assessment year.
On finding parity of facts, we do not find any reason why the similar claim of deduction under section 80P(2)(d) of the Act should not be allowed during the year also. Therefore, we direct the Assessing Officer to allow the impugned claim of deduction. Appeal filed by the assessee is allowed.
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2024 (4) TMI 886
Reopening of assessment u/s 147 - non independent application of mind by AO - Scope of borrowed satisfaction - information received from Asst. DIT-(Investigation), Unit – 2(1), Kolkata, AO was informed that large value of cash was deposited into several bank accounts maintained with ICICI Bank which were immediately transferred to other bank accounts - HELD THAT:- Entire reopening is based on the assumption that assessee has been benefited by the impugned / alleged colorable transactions but without any backing of any demonstrative evidences to show that the assessee has purchased cheque from Wheelers Developers Pvt Ltd., by paying cash to it.
We find that the entire process of reopening is based upon only and only the investigation report from ADIT (Investigation), Kolkata. We are of the considered view that the AO has not applied his mind before issuing notice u/s 148. Assuming, yet not accepting, that the assessee is a beneficiary, then we are unable to understand how a loan amount can be a matter of escapement of income u/s 148 for the simple reason that loan amount is a capital receipt and the only liability cast upon the assessee is to discharge the onus cast upon it by the provisions of section 68 - We find that the conclusions of the AO are at best the reproduction of the conclusions in the investigations report and indeed it is a “borrowed satisfaction”.
The impugned notice issued u/s 148 of the Act is bad in law and accordingly, we set-aside assessment order framed pursuant to the said notice is quashed. The appeal of the assessee is allowed.
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