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Showing 141 to 160 of 1551 Records
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2024 (2) TMI 1411
Review petition - Exemption u/s 10(22) - denial of exemption objects of the Trust include commercial activity - HELD THAT:- We may record that petitioner had already filed a review petition in [2023 (3) TMI 1512 - KARNATAKA HIGH COURT] and the same has been dismissed as noted above. Therefore, in our opinion, the benefit of the authority in the case of KHODAY DISTILLERIES [2019 (3) TMI 232 - SUPREME COURT] is not applicable to the facts of this case. Hence, Review Petition is dismissed.
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2024 (2) TMI 1410
Failure to make claim in time as per Section 31 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In view of the judgment of this Court in a case of GHANASHYAM MISHRA AND SONS PRIVATE LIMITED THROUGH THE AUTHORIZED SIGNATORY VERSUS EDELWEISS ASSET RECONSTRUCTION COMPANY LIMITED THROUGH THE DIRECTOR & ORS. [2021 (4) TMI 613 - SUPREME COURT], the demand made by the appellants herein would no longer survive for consideration.
Appeal disposed off.
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2024 (2) TMI 1409
Imposition of conditions so as to entitle the petitioners for protection from any coercive action for recovery - Section 112 of the WBGST Act - HELD THAT:- As of now, the appellants have paid 30% of the disputed tax which is sufficient compliance of the requirement under Section 112 of the WBGST Act. Therefore, we are of the view that no further condition needs to be imposed on the appellants to be entitled for protection from coercive action by the Department for recovery. Accordingly, the appeal and the connected application are allowed and that portion of the order passed by the learned Single Bench dated 28.11.2023 directing the appellants to pay further 20% of the disputed tax is deleted and the respondent department is directed not to take any coercive action against the appellant for recovery.
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2024 (2) TMI 1408
Validity of reassessment proceedings - sanction to pass the order issued by the Principal Commissioner of Income Tax (“PCIT”) and not by the Principal Chief Commissioner of Income Tax (PCCIT”) - HELD THAT:- The matter pertains to Assessment Year (“AY”) 2018-19 and since the impugned order as well as the notice are issued on 7th April 2022, both have been issued beyond a period of three years. Therefore, the sanctioning authority has to be the PCCIT as provided under Section 151 (ii) of the Act. The provisio to Section 151 has been inserted only with effect from 1st April 2023 and, therefore, shall not be applicable to the matter at hand.
In this circumstances, as held by this Court in Siemens Financial Services Private Limited [2023 (9) TMI 552 - BOMBAY HIGH COURT] the sanction is invalid and consequently, the impugned order and impugned notice u/s 148A(d) and 148 of the Act are hereby quashed and set aside.
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2024 (2) TMI 1407
Deduction u/s 80P(2)(d) - interest earned on fixed deposit with Surat District Cooperative Bank - HELD THAT:- We find that CIT (A) has not disputed about earning of such interest income from Surat District Cooperative Bank even otherwise the assessee has given complete month-wise bifurcation on interest earned from Surat District Cooperative Bank.
We find that in a series of decisions, the combination of this Bench by following in Surat Vankar Sahakari Sangh Ltd. [2016 (7) TMI 1217 - GUJARAT HIGH COURT] has held that the cooperative banks are primarily the cooperative society and the interest earned on deposit with cooperative banks are eligible for deduction u/s 80P(2)(d) of the Act. Similar view was taken in Bardoli Vibhag Gram Vikas Co-op Credit Society Ltd. [2021 (5) TMI 446 - ITAT SURAT] Taking a consistent view, the AO is directed to delete the entire disallowance - Appeal of assessee is allowed.
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2024 (2) TMI 1406
Bogus loss in share trading - disallowance as trading loss in share transaction were done on the platform of the exchange, treating the same as bogus loss which is completely arbitrary, unjustified and illegal - HELD THAT:- We find that the assessee has made the transaction of shares and generated the loss during this financial year. The relevant documents are duly submitted before the revenue authorities and also submitted before the Bench in relation to the share trading loss.
There is no question about the veracity of the documents submitted before the authorities. But the revenue-authority is fully relied on the preponderance of probability as per the order of Hon’ble Apex Court in the case of Sumati Dayal [1995 (3) TMI 3 - SUPREME COURT] and the order of Swati Bajaj [2022 (6) TMI 670 - CALCUTTA HIGH COURT]. But in case of loss, there is no question of the peak increase of the share value and also the assessee is suffering the capital loss by generating the share loss.
We fully relied case of Samrat Finvestor Pvt. Ltd. [2024 (1) TMI 1306 - ITAT KOLKATA] - The same logic is also applied for transacted shares also. The assessee has suffered losses by transaction of number of shares. The assessee itself transacted huge volume of share during impugned assessment year. We find that the entire addition is made on basis of preconceive idea as generated after a general investigation of investigating authority. We accordingly set aside the appeal order and quash the addition amount - Assessee appeal allowed.
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2024 (2) TMI 1405
Addition of undisclosed income u/s 69A or 68 - Onus to prove - deposit of SBN during demonetization period added on the ground that there is no reason for assessee to hold such huge cash and that the assessee ought to have incurred expenses in cash
HELD THAT:- The amount of sales which is not disputed is already offered to tax by the assessee by reflecting the same in the trading / P&L Account which fact is not doubted by the lower authorities and that the AO/CIT(A) have accepted the income offered by the assessee under the head Profits and Gains from Business or Profession. In that case, if the cash deposits are added under section 68 of the Act, then it would result in taxing the impugned amount twice, once as a sales income and secondly as an addition under section 68 of the Act. Further the addition under section 68 of the Act is contradictory to the stand taken while accepting the business income offered to tax by the assessee.
Assessee has discharged the onus of substantiating the source for the deposits made in SBN during demonetisation period and that the addition made by the revenue without disputing the business income of the assessee is not tenable. In view of the above discussion, we are of the considered view that the addition made under section 68 of the Act cannot be sustained and is therefore deleted. Assessee appeal allowed.
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2024 (2) TMI 1404
Seeking unconditional stay of an Arbitral Award - proviso to section 36(3) of The Arbitration and Conciliation Act, 1996 - petitioner prays for unconditional stay on the ground that the Arbitration Agreement was induced by fraud - HELD THAT:- In the present case, the petitioner seeks to make out a case of fraud on the part of the respondent on account of the respondent's alleged non-disclosure of the orders passed by the PNGRB ad the Delhi High Court at the relevant point of time. The presumption is that the petitioner would not have entered into the agreement with the respondent had the respondent disclosed these orders. The case argued is that the petitioner was induced into executing the Arbitration Agreement/GSPA with the respondent on the fraudulent misrepresentation that the respondent was free to supply CBM gas to the petitioner for 25 years.
The series of orders passed by the PNGRB and the Delhi High Court shows that first, there was, in fact, no restraint on the respondent at any point of time, material or otherwise, to perform or continue to perform the Agreement in the terms thereof. Second, the petitioner was all along aware of the orders of the PNGRB and the Delhi High Court from 2010-11 onwards as would appear from the respondent's Balance Sheets for relevant years. Even if it is assumed that the petitioner/ or its witness did not check the particular pages in the Balance Sheets disclosing the orders, such oversight would fall within the exception to section 19 of the Contract Act which sets the standard to "ordinary diligence" of the party who complains, that the truth could easily have been discovered - the petitioner has made vague and omnibus allegations without any particulars of the fraud committed on the part of the respondent.
It is evident from the records that the petitioner's only intention for filing the present application is to avoid making any deposit for securing the award. This would also be clear from the prayer in the application GA 1 of 2022. The respondent/award-holder has been deprived of the fruits despite the award being of 21.6.2022. The Court, hence, sees no impediment for the respondent to execute the award unless the petitioner secures the award on appropriate terms - The awarded amount was Rs. 58,50,45,169/-along with interest as on 21.6.2022. The accrued interest and the amount payable along with principal sum as on 13.9.2022 is approximately Rs. 89.71 crores. The respondent has calculated the outstanding amount of Rs. 101,39,93,149/-till 23.2.2024. Since the Court has recorded its lack of satisfaction on the prima facie case made out by the petitioner/award-debtor on the Arbitration Agreement being induced/effected by fraud, the prayer for unconditional stay of the award is rejected.
Application dismissed.
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2024 (2) TMI 1403
Long Term Capital Gain - development agreement by holding no transfer of capital asset u/s. 2(47)(v) - transfer of land affected during the year under consideration as per the Joint Development Agreement - HELD THAT:- Section 53A of the Transfer of Property Act, 1882 would not be attracted in a case where a license was given to another for the purpose of development of flats and selling the same and granting such license could not be said to be granting possession within the meaning of section 53A of the Transfer of Property Act, 1882.
In the present case also, clause 6 of the modified agreement of Joint Development, Construction and Sale clearly shows that the owners which includes the assessee confirmed the license and permission given to the developer by the previous owner to enter into upon the said property.
The said license to the developer is personal and under no circumstances the developer shall transfer the same to any third party. Therefore, the argument, DR is not acceptable that the license and permission is a right itself gives rise transfer of property u/s. 2(47)(v) - clause 3 of the said agreement establishes that the developer shall construct a portion of building for the owners in proportion of 42.5% out of total built up area of the proposed building which supports the case of the assessee no capital gain arose in the year under consideration, but it could be in the year in which possession of share of assessee in the proposed building is given.
Clause 7 reads that the owners including the assessee given a registered power of attorney to the developer, in order to obtain the sanction of layout, building plan and to appear before various authorities for mutation on behalf of the owners and to do all general acts, deeds and things in the name of owners to commence and complete the development of the said property as per the terms and conditions mentioned in the said agreement.
Therefore, as per the said agreement, the owners has permitted the said developer to develop the property belonging to the owners only as a licensee which did not have the effect of transfer of property to the licensee. The developer has given possession of the assessee’s share in June, 2017 which is evident from para 5.3.3 of the impugned order which is also not disputed by the DR.
CIT(A) clearly recorded that the assessee offered the capital gain in the year in which share in the constructed area is given to the assessee, which is subjected to tax in A.Y. 2018-19 which is also not disputed by the DR. If we accept the contention of the ld. DR that the capital gain was rightly determined by the AO in A.Y. 2012-13, certainly, it amounts to double taxation, having offered the same in A.Y. 2018-19, as rightly pointed by the ld. AR.
Thus, we find no infirmity in the order of CIT(A) in holding that there is no transfer u/s. 2(47)(v) and no capital gain is chargeable thereon in the year under consideration. Thus, the grounds raised by the Revenue fails and are dismissed.
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2024 (2) TMI 1402
Rejection of bail - Money Laundering - whether there are reasonable grounds for pleading before and impressing this court that the petitioner is not guilty of such offence, and he is not likely to commit any offence while on bail? - HELD THAT:- Whether or not the decision on the part of J&K State Cooperative Bank, Srinagar, Kashmir headed by the petitioner as its chairman was an act of a prudent banking or not , with due diligence or not is surely a matter which can be looked from the criminal culpability view and that is why the Anti-Corruption Bureau ACB Kashmir has come to present a police challan against the culprits including the petitioner but still the advancement of a bank loan has taken place by disbursement of amount to the bank accounts of the beneficiaries who are said to be, and are not disputed to be, the actual landowners who willingly parted with their respective possession of the respective lands in favor of River Jhelum Cooperative House Building Society and in return received the consideration amount. Thus, the use of the bank loan amount per se cannot be presumed to be meant for the purpose of generation and diversion of the proceeds of crime from the point of perspective of a banker. The transfer of land title on the basis of utilization of loan amount is supposed to be in the name of cooperative society i.e. River Jhelum Cooperative House Building Society and not in the name of any individual.
The petitioner is well within his right to say and agitate that so long as the decision to grant loan on behalf of the J&K State Cooperative Bank, Kashmir, Srinagar is to be reckoned as having been taken by the Board of Management then the liability and the responsibility for the said decision cannot be individualized to the petitioner alone and absolving the rest of the board members.
The petitioner has ceased to be the chairman of J&K State Cooperative Bank since 2020 and as such that denudes him from any position to influence any aspect relatable to the case - There is no denying the fact that the petitioner is 63 years old person and at this stage of life any health deteriorating condition if neglected that too in a state of custody can cause complications and in the present case. There is a medical reference on record to prima facie establish that the petitioner is having heard related complication which the petitioner in exercise of his fundamental right to personal liberty is well within his right to get it treated to the best of his resources and discretion and in that regard the public exchequer can be absolved from bearing the burden of medically attending the petitioner in custody.
The petitioner is hereby granted bail subject to the terms and conditions of furnishing personal bond to the tune of rupees ten lacs to the satisfaction of the Superintendent of Jail concerned and surety bond of two sureties of like amount to the satisfaction of Registrar Judicial, Srinagar of this court - a case is made out for grant of bail by allowing the bail plea of the petitioner.
The petition is thus allowed.
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2024 (2) TMI 1401
Levy of service tax - Erection, Commissioning and Installation Service - various charges recovered by the appellant from the consumers for the erection of Bays, Sub-stations and Transmission Lines - service tax to the extent of 50% under reverse charge on work contract service received by the appellant - only dispute raised by the Revenue is that only service which is directly a service of transmission of electricity is exempted not the present service - Extended period of limitation - Interest on reversal of CENVAT Credit.
Levy of service tax - HELD THAT:- This issue has been considered in various judgments that any service which is provided in relation to transmission of electricity is exempted under Notification Nos. 45/2010-ST dated 20.07.2010, 11/2020- ST dated 27.02.2010 and as per negative list under Section 66D of the Finance Act, 1994.
Reliance placed in Torrent Power Limited [2019 (1) TMI 1092 - GUJARAT HIGH COURT] where it was held that 'The services provided by the petitioner are in the nature of composite supply and therefore, in view of the provisions of clause (a) of Section 8 of the CGST Act, the tax liability thereof has to be determined by treating such composite same as a supply of the principal supply of transmission and distribution of electricity. Consequently, if the principal supply of transmission and distribution of electricity is exempt from levy of service tax, the tax liability of the related services shall be determined accordingly.'
In the case of M/S HYDERABAD POWER INSTALLATIONS PVT LTD. VERSUS CC, CE & ST, HYDERABAD-II [2016 (7) TMI 599 - CESTAT HYDERABAD] it was held that 'the demand raised under ECIS is unsustainable and requires to be set aside.'
From the above judgments it can be seen that the entire period in the present appeal i.e. related to Notification No. 45/2010-ST, 11/2010-ST and also for the period when negative list under Section 66D was in force, it was held that service for transmission of electricity is not leviable to service tax. Therefore, the issue is no longer res-integra. Accordingly, in the present case also the service tax liability in respect of Erection, Commissioning and Installation Service is not sustainable.
Extended period of limitation - Interest on reversal of CENVAT Credit - HELD THAT:- There is no dispute that the demand of interest was also raised by invoking extended period. As per facts and circumstances, there is no suppression of facts on the part of the appellant therefore, even for the demand of interest, the longer period cannot be invoked. The Hon’ble Supreme Court in the case of Commissioner vs. TVS Whirlpool Limited [1996 (4) TMI 232 - CEGAT, MADRAS] held that 'The Appellate Tribunal in its order in question had held that where no time limit is prescribed for demand/recovery of interest under Sections 47 and 61(3) of the Customs Act, 1962, then taking into consideration the scheme of Central Excise law and the limitation periods prescribed under different sections and rules. A reasonable period of limitation would be six months or five years, as the case may be, as provided under Section 28 of the Customs Act, 1962. Therefore, the demand for interest beyond the period of six months from clearance of goods is barred by limitation.' - the demand of interest for the longer period will not sustain.
The demand is not sustainable - the impugned order is set-aside - appeal allowed.
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2024 (2) TMI 1400
TP Adjustment - interest on the receivables from AE - HELD THAT:- As decided in ALCATEL LUCENT INDIA LIMITED [2023 (4) TMI 980 - ITAT DELHI] held that case of Kusum Healthcare [2017 (4) TMI 1254 - DELHI HIGH COURT] is still the binding precedent on the issue of interest on outstanding receivables as held that the inclusion in the Explanation to section 92B of the Act of the expression "receivables" does not mean that de hors the context every item of "receivables" appearing in the accounts of an entity, which may have dealings with foreign AEs would automatically be characterized as an international transaction and (ii) With the Assessee having already factored in the impact of the receivables on the working capital and thereby on its pricing/profitability vis-a-vis that of its comparables, any further adjustment only on the basis of the outstanding receivables would have distorted the picture and recharacterized the transaction. Addition deleted - Decided in favour of assessee.
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2024 (2) TMI 1399
Addition u/s 68 - Unexplained cash deposited during demonetization - onus of the Assessee to substantiate the source and nature of the cash deposit made during the period of demonization not proved - HELD THAT:- CIT(A) while deciding the issue has specifically observed that the assessee was maintaining books of account which were duly audited and the said books of accounts were not rejected by the A.O. and further observed that the cash deposits of the assessee up to December, 2016 was Rs. 54,00,000/- are much lower than the cash deposits up to December 2015 i.e. 2,62,75,000/-.
The audited books of accounts of the assessee has not been rejected and the sales of the assessee has not been disturbed, then the Revenue Authorities are precluded from making any addition. Even after observing that the cash deposits of the Assessee was much lower than the previous year, CIT (A) has not given any valid reason to sustain the addition, thus, in our considered view, the order passed by the CIT (A) is found to be erroneous - addition sustained by the CIT (A) is hereby deleted. Appeal filed by the assessee is allowed.
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2024 (2) TMI 1398
Assigning of a declaratory decree quashed - classification of disputed land - entry of Shamlat Deh Hasab Rasab Khewat exist in the jamabandis or not - HELD THAT:- The classification as, assigned to the disputed lands in the apposite classification column, thus also prima facie makes the disputed lands to be unamenable for cultivation. If so, since within the scope of the above extracted savings clause to the definition of Shamlat Deh, it is but imperative, that the suit lands were amenable to cultivation, whereas, ex facie the import of the classification, assigned to the disputed lands, is that, they are uncultivable, thereby the petitioners who otherwise have also not brought forth any evidence suggestive that they earlier had or as of now rather made them cultivable, thus through theirs adducing the relevant Khasra Girdawaris, thereupon the disputed lands with the above classifications, are evidently untillable or uncultivable.
The present petitioners cannot claim that they had at any time made them exclusively cultivable for their benefit, and, to the deprivation of the other members of the village proprietary body.
Prior to the holding of the consolidations operations, the lands were used for the common purpose of the entire village community, and, thereby were kept intact in the very same manner, resulting in a valid mutation of ownership becoming attested qua the Gram Panchayat concerned, vis-a-vis, the disputed lands.
Petition dismissed.
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2024 (2) TMI 1397
TDS u/s 192 on the LTC paid to employees - reimbursement of Leave Travel concession involving foreign leg through circuitous route - "assessee in default" for non-deduction of tax at source - HELD THAT:- As perused the order of the Hon'ble Madras High Court [2015 (2) TMI 1378 - MADRAS HIGH COURT] referred by the ld. AR and observed that a writ petition was filed challenging the circular issued by the SBI to the effect that officers/employees would not be entitled to visit Overseas Countries/Centers as part of LTC /HTC. In the interim order passed by the Hon'ble Madras High Court, it has been held that any amount paid to the petitioner towards LTC/reimbursement of LTC pursuant to the impugned order would not amount to income so as to enable the bank to deduct tax at source. We further observed that the Hon'ble Madras High Court in its interim order held that if the writ petition is dismissed, the employees are liable to pay tax on the amount paid by the bank.
However, the Hon'ble Supreme Court in the case of the assessee in [2022 (11) TMI 426 - SUPREME COURT] affirmed the order of the Hon'ble Delhi High Court in holding that the assessee is liable to deduct tax at source on the payments made to its employees towards LTC bills.
In view of the decision of the Hon'ble Supreme Court, the interim stay granted by the Hon'ble Madras High Court is of no help to the assessee bank. Thus, respectfully following the decision of the Hon'ble Supreme Court, we hold that the assessee is in default within the meaning of section 201(1)(1A) for non deduction of tax under Section 192 of the Act on the reimbursement of LTC (Leave Travel Concession) /LFC (Leave Fare Concession) and HTC (Home Travel Concession). Appeals of the assessee are dismissed.
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2024 (2) TMI 1396
Income deemed to accrue or arise in India - Royalty receipts - consideration received by the assessee from various customers on account of licensing of Customer Relationship Management CRM software - India-Singapore DTAA - assessee is a tax resident of Singapore income in question as derived from the subscription fee which the assessee receives from customers in India for providing CRM related services.
HELD THAT:- Since the copyright in the application was never transferred or came to vest in a subscriber, we fail to appreciate the contentions which are addressed on the anvil of Section 9 of the Act. This issue, in any case, stands conclusively settled bearing in mind the pertinent observations which were rendered in Engineering Analysis Centre for Excellence [2021 (3) TMI 138 - SUPREME COURT] and have been noticed in Relx and have been reproduced hereinabove.
We deem it appropriate to additionally observe that the right of subscription to a cloud-based software cannot possibly be said to be equivalent to the "use" or "right to use" any industrial, commercial or scientific equipment. This more so since the respondents sought to place the consideration received under Article 12 (4)(b) and which is specifically excluded from sub-article (3)(b).
The argument based upon Article 12(4)(a) also cannot sustain since the same pertains to payments received as consideration for managerial, technical or consultancy services and which are ancillary or subsidiary to enjoyment of the right, property or information referable to paragraph 3. This again would be founded upon the payment foundationally falling within the ambit of royalty as defined therein.
Similar would be the position which would obtain bearing in mind the unambiguous language in which Article 12(4)(b) of the DTAA is couched. Article 12(4)(b) would have been applicable provided the appellants had been able to establish that the assessee had provided technical knowledge, experience, skill, knowhow or processes enabling the subscriber acquiring the services to apply the technology contained therein. The explanation of the assessee, and which has gone unrefuted even before us, was that the customer is merely accorded access to the application and it is the subscriber which thereafter inputs the requisite data and takes advantage of the analytical attributes of the software. This would clearly not fall within the ambit of Article 12(4)(b) of the DTAA.
In any event, clauses (a), (b) and (c) are factors which must be found to exist in addition to the consideration for service being relatable to the provision of managerial, technical or consultancy services. This is clearly evident from Article 12 (4) using the expression “if such services”. However, once we have found that the principal conditions spelt out in Article 12(4) are themselves not satisfied, this issue would pale into insignificance.
It becomes pertinent to observe that Explanation 4 in essence introduces a deeming fiction and includes transfer of all or any rights “for use” or “to use” a computer software including by way of a license irrespective of the medium through which such right is transferred. Significantly, the DTAA does not bring within its sweep a right for use or a right of use of a computer software.
ITAT correctly held that the consideration received by the assessee from various customers on account of licensing of Customer Relationship Management CRM software is not royalty income within the meaning of Article 12(3) of the IndiaSingapore Double Taxation Avoidance Agreements DTAA. Decided in favour of assessee.
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2024 (2) TMI 1395
Rejection of application for final registration u/s 12A(1)(ac)(iii) - time limit for applying for final registration - CIT(Exemptions) observed that the assessee earlier was granted provisional registration in Form 10AC which was valid till A.Y 2026-27. He, therefore, held that the application of the assessee being premature was not maintainable - HELD THAT:- The assessee-institution has been granted registration u/s 12AB(1)(a) of the Act for five years vide order dated 28.05.2021 which is valid from A.Y 2022-23 to A.Y 2026-27. As per the provisions of section 12A(1)(ac)(iii), the assessee-institution is supposed to apply for final registration after grant of provisional registration u/s 12AB of the Act.
A persual of provisions of section 12A(1)(ac)(iii) of the Act would reveal that where the trust or the institution was provisionally registered u/s 12AB of the act, the application for final registration can be made at least six months prior to the expiry of the period of provisional registration or within six months of the commencement of its activity, whichever is earlier, which means that the application for final registration has to be made at the earliest possible event i.e. either within six months of the commencement of the activities or at least six months prior to the expiry of the provisional registration.
The aforesaid provision does not mean that there is any bar on the applicant to move an application before the period of six months from the expiry of the provisional registration. What has been provided is that the application must be made before the expiry of six months from the date of expiry of final registration. There is no bar in moving the application at the earliest possible event, rather, i.e. it is expected from the assessee-trust to do so. In view of this, the impugned order of the ld. CIT(Exemptions) is set aside and the matter is restored to the ld. CIT(Exemptions) to consider the application of the assessee for final registration and grant the same if the same is otherwise so admissible to the assessee.
Appeal of the assessee is treated as allowed for statistical purposes.
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2024 (2) TMI 1394
100% EOU - Clandestine Removal - Physical Exports - Deemed exports against advance licenses - DTA sale to another 100% EOU - ex-parte order passed - violation of principles of natural justice - HELD THAT:- There is a force in the submission of the Learned Counsel made on behalf of the appellant in his synopsis dated 22.11.2023 that there is gross violation of principles of natural justice, in as much as the appellant has not been granted the effective hearing in the matter particularly, when the order was passed after almost two years from the date of hearing. It is also admitted that no examination-in-chief and subsequent cross-examination has been conducted by the learned Adjudicating authority, which is mandatory under section 9D of Central Excise Act, 1944. The issue of lack of jurisdiction also needs to be considered.
The matter needs to be re-considered. Therefore, the impugned order is set aside - Appeal is allowed by way of remand to the Adjudicating authority for passing de-novo order within a period of three months from the date of this order.
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2024 (2) TMI 1393
CENVAT Credit - input service - place of removal - outward GTA service which is used for transportation of goods from job worker premise to the depot of Principal when the valuation was adopted under section 4A by applying the N/N. 36/2001-CE (NT) - HELD THAT:- The ‘place of removal’, as defined in rule 2(qa) of the 2004 Rules, would, therefore, be the depot or any other place or premises from where the excisable goods are to be sold after the clearance from the factory. The goods are clearly not sold from the factory gate of the appellant as only stock transfer takes place. The appellant cannot be considered to be the owner of the goods as the ownership vests with Parle and it is Parle which ultimately sells the goods from its depot or from the premises of the clearing and forwarding agents.
Consequently, the appellant would be entitled to claim credit of the service tax on freight paid to goods transport agency on transportation of biscuits from the factory of the appellant to the depot or premises of the clearing and forwarding agents of Parle.
The Rajasthan High Court in Mound Trading Company Pvt. Ltd. vs. Commissioner Central Excise Jaipur-I [2019 (7) TMI 1175 - RAJASTHAN HIGH COURT], in the matter of the appellant itself, held that the appellant could avail CENVAT credit under rule 2(l) of the 2004 Rules on the service tax paid for transportation of the manufactured products from the place of manufacture upto the depot of Parle.
In the present case, in view of the authorisation dated 23.11.2009 and the terms and conditions submitted at the time of authorisation as also the Agreement dated 07.08.2009, it is clear that no sale took place at the factory gate of the appellant since the goods belonged to Parle and were merely stock transferred to Parle from the factory gate of the appellant. The Excise Invoices issued for removal of goods contained the name of the appellant A/c Parle. The Stock Transfer Notes were issued against Form-F with similar details as the Excise Invoice - Whatever sale to buyers took place was either from the depots of Parle or from the premises of the clearing and forwarding agents of Parle. It appears that these facts were not brought to the notice of the Tribunal or the High Court and that is why a finding was recorded that the goods were not cleared on ‘FOR Destination’.
The appellant would be entitled to avail CENVAT credit of the service tax paid on outward GTA service for transportation of the goods from the factory of the appellant to the depots of Parle or to the premises of the clearing and forwarding agents of Parle in terms of the authorisation and the Agreement executed between the parties when the valuation is determined under section 4A of the Central Excise Act.
The papers may now be placed before the Division Bench of the Tribunal for deciding the appeal on merits.
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2024 (2) TMI 1392
Revision u/s 263 - as per CIT expenses made by M/s AD Enterprises for job work remained unverified and AO could have referred matter to the Verification Unit for physical verification but it was not done - HELD THAT:- AO has considered the replies/submissions and thereafter taken a plausible view. The action of AO in accepting the replies/ submissions of assessee cannot not lack bona fides and cannot be said to be faulty specially when the assessment of assessee has been made by National e-assessment Centre, Delhi. With regard to various objections raised by PCIT in revision-order and also contended by Ld. DR qua M/s AD Enterprises, we find that the Ld. AR for assessee is very much correct in arguing that the assessee filed complete point-wise replies to AO; that all payments were made through banking channel and bank statements were duly filed; that the assessee deducted TDS and filed copies of TDS returns/ challans; that the assessee filed PAN, current address and phone number of Smt. Nilima, proprietor of M/s AD Enterprises.
Assessee has also filed details of payments made to M/s AD Enterprises not only in current year but also the payments made in preceding year and subsequent year. Ld. AR is also justified in submitting that non-filing of income-tax return and no response of the notice u/s 133(6) by Smt. Nilima is not under the control of assessee and the assessee cannot be punished for this.
The submission of Ld. AR that the assessee is engaged in the business of real estate and the services taken from M/s AD Enterprises in the nature of various job works like moram filling, chambers, road, boundary wall, drainage line, etc. were very much required by assessee to build the structures, is also meritorious. We may mention here that the assessee has deducted substantial amount of TDS from payments made to M/s AD Enterprises, remitted the proceeds of TDS to income-tax department and also filed statutory returns of TDS giving each item of payment, TDS etc. against the payee M/s AD Enterprises.
TDS returns also contain PAN of Smt. Nilima proprietor of M/s AD Enterprises. The PAN so mentioned is verified and accepted as valid and correct by TDS Wing of Income-tax Department and that is why they have not created demand of higher amount of TDS u/s 206AA of the Act.
Therefore, just by saying that the payee has not filed income-tax return, the authorities cannot punish the assessee.
Non-response of notice u/s 133(6) - Assessee has very much discharged his duty by providing current address and current phone number of M/s AD Enterprises which has enabled the AO to issue notice u/s 133(6). But thereafter, non-response by the payee to the statutory notice directly issued by AO, is not within the reach and control of assessee. Hence, we are unable to understand as to how the assessment-order of assessee can be considered as erroneous for no fault of assessee.
Thus, we are persuaded to hold that the facts of the present case do not warrant application of section 263. Assessee appeal allowed.
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