|
Advanced Search Options
Case Laws
Showing 141 to 160 of 1183 Records
-
2021 (6) TMI 1043
Valuation - Tax levied on entire amount - reimbursement was not considered - break up of service charge received by the petitioner (reimbursable) not produced - HELD THAT:- Admittedly, the issue involved is factual and there is a clear finding in the impugned order to the effect that break up of service charge received by the petitioner during the period in question have not been produced by them - The reply filed also does not contain the bifurcation of the amounts liable to service tax and the reimbursable expenses, which are excludible. In the absence of such details, the Assessing Officer cannot be faulted in having brought to tax the entire amount. It is thus appropriate that the petitioner file statutory appeals in order that these factual aspects may be looked into.
In line with the decision of the Supreme Court in a series of judgments, viz., IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (3) TMI 497 - SC ORDER], IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION [2020 (5) TMI 418 - SC ORDER] and M/S. SS GROUP PVT. LTD. VERSUS AADITIYA J. GARG & ANR. [2021 (1) TMI 804 - SUPREME COURT] extending the limitation for filing of appeals, petitioner is granted 30 days time from today to file appeals. This is for the reason that the present Writ Petitions have been pending on the file of this Court since 11.01.2021.
Such appeals, if filed within the period as aforesaid, will be taken on file by the Appellate authority without reference to limitation, but ensuring all other statutory conditions and considered on merits and in accordance with law - petition disposed off.
-
2021 (6) TMI 1042
Principles of Natural Justice - fruit pulp industries - classified under Entry No.102(2) of the IV Schedule to the A.P. VAT Act, 2005 or not - validity of assessment order and penalty order - HELD THAT:- The admitted facts in these cases are that aggrieved by the initial Assessment Order No.29664, dated 30.07.2016 imposing tax on the sale of goods @ 14.5% for the tax period April, 2013 to January, 2016 and also against imposing of penalty vide Assessment Order No.48458, dated 31.12.2016, the petitioner filed appeals Nos.83/2017-18 (CTR) and 84/2017- 18 (CTR).
The Appellate Deputy Commissioner passed order dated 08.11.2017, a perusal of which shows that the Appellate Authority was convinced that the disputed goods sold by the appellant (writ petitioner) were used exclusively by the fruit pulp industries for the treatment of material i.e., fruits and food etc., and it cannot be considered as unclassified item, as they fall under Entry No.102 vide Sl.No.2 of the IV Schedule of the A.P. VAT Act, 2005 - the Appellate Deputy Commissioner remitted the appeal back to the Assessing Authority with a direction to verify the veracity of the documents that will be produced by the appellant before him and then pass fresh orders as per the provisions of APVAT Act, 2005 and the appellant shall produce the documentary evidence before the Assessing Authority covering the disputed turnover for verification as and when called for by him.
It is clear from the appellate order that the Appellate Deputy Commissioner has fixed the rate of tax at 5% and remanded the matter only to verify the records to be produced by the appellant and to come to a conclusion with regard to actual turnover.
Post remand scenario - HELD THAT:- Admittedly the 1st respondent issued notice dated 12.12.2017 calling the petitioner to produce relevant documents/information in support of their contentions within seven days from the date of receipt of the said notice. Having received the notice on 15.12.2017, the petitioner filed some record relating to purchases and trading account for the years 2013-14, 2014-15 and 2015-16 vide covering letter dated 27.12.2017 and has not filed further information.
The impugned Assessment Order and Penalty Order is set aside with a direction to the 1st respondent to issue a fresh show cause notice to the petitioner to his principal business address by giving reasonable time therein for filing records and there upon - petition allowed.
-
2021 (6) TMI 1041
Validity of attachment notice - recovery of arrears of sales tax - Deputy Tahsildar - proper authority to have issued the impugned notices or not - ownership of the properties - registration of the firm with the Registrar Firms has taken place post purchase of the property - Puducherry Revenue Recovery Act, 1970 - HELD THAT:- The provisions of Section 25 onwards deal with the service of demand prior to effecting recovery of arrears from sale/disposal of immovable property. Section 25 deals with service of demand prior to attachment of land and mode of service thereof. Section 26 stipulates the procedure when a defaulter neglects to pay despite service of demand, Section 27, with the mode of attachment of immovable property, Section 28 with the management of the property which is under attachment, Section 29 with notice to be given on the assumption of management and so on and so forth, the succeeding provisions not being relevant for the purpose of this writ petition - All powers from Section 25 onwards, which are to be exercised by a Collector or other officer empowered by the Collector would, by application of Section 42 of the PVAT Act, be carried out by the designated officers of the Commercial Taxes Department.
Mr.Kumaran would attempt to state that the procedure under the PVAT Act is two pronged and Section 37(3), which refers to recovery of arrears as though it were an arrear of land revenue would permit officials of the PRR Department also to take action for recovery. This submission is misconceived in light of the specific mandate under Section 42, which states that for the purpose of recovery of any amount due under this Act, it is only the specified officers of the Commercial Taxes Department who have the requisite powers. As a consequence, the issuance of the present impugned notices by the Deputy Tahsildar is contrary to the provisions of the Act.
Petition allowed - decided in favor of petitioner.
-
2021 (6) TMI 1040
Validity of order passed u/s 74(1) - Maintainability of petition - availability of alternative remedy of appeal - opportunity of hearing provided or not - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, it is opined that the order is bad in law. This is for two reasons-(a) violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order of assessment passed ex parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences.
Impugned order set aside - petition allowed.
-
2021 (6) TMI 1039
Seeking pre-arrest bail - scheduled offences - first contention of respondent is that the offences under PML Act cause a serious threat not only to the financial system of the country but also integrity and sovereignty and for the offences under the PML Act, pre-arrest bail should not be granted - HELD THAT:- There cannot be any straitjacket formula for exercising jurisdiction under Section 438 Cr.P.C. and it all depends on the facts and circumstances of the case and where the fundamental right to personal liberty of accused is involved Courts cannot exercise jurisdiction mechanically - In the case on hand admittedly summons were issued to the petitioner in the year 2017 directing him to appear before the officials whereas the case of the petitioner is that he received summons in the year 2020 only and he mentioned reasons why he was not present before the officials and in support of the same the petitioner filed certain documents.
Basing on the statement of one Ayush Goyal, who is nephew of the petitioner herein the petitioner was summoned and search was also conducted in the house of the petitioner during which certain articles were also seized and the petitioner's statement was recorded. Generally the Courts would hesitate to. grant anticipatory bail in case where there is reasonable apprehension that securing presence of the accused is difficult and there is every likelihood that he may influence witnesses and tamper the evidence - The respondents have not proceeded further against the petitioner and they have not taken any steps since 2017. It is stated by the learned counsel for the petitioner that the enquiry as far as nephew of the petitioner is concerned basing on whose statement the petitioner was summoned is also completed.
Taking into consideration the allegations against the petitioner, where only summons were issued under Section 50 of PML Act in the year 2017, as the petitioner is not arrayed as an accused, the bail granted by learned I Additional Metropolitan Sessions Judge-Cum-II Additional District Judge, Visakhapatnam, and the health condition of the petitioner and his wife this Court is of the view that this is a fit case for grant of pre-arrest bail - petitioner shall be released on bail in the event of his arrest in connection with Enforcement Case Information Report vide No. ECIR/VKSZO/03/2017 on the file of Directorate of Enforcement, Sub-Zonal Office, Visakhapatnam on condition of executing self bond for ₹ 50,000/- with two sureties for a likesum each to the satisfaction of Directorate of Enforcement, Sub-Zonal Office, Visakhapatnam.
Petition allowed.
-
2021 (6) TMI 1038
Maintainability of appeal - refund of Education Cess and Higher Education Cess - covered under Section 35L or under Section 35G of the Central Excise Act, 1944? - HELD THAT:- At present learned counsel representing the Appellant-Revenue facing difficulty regarding agreed proposal made before the CESTAT of applicability of the judgment of the M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT] and relying on the same the order was passed. Later the said judgment has been modified by the Hon’ble Apex Court in the case of M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA & OTHERS [2019 (12) TMI 286 - SUPREME COURT]. However, the counsel for the Appellant-Revenue requests for filing a petition for rectification before the CESTAT, the said prayer appears to be justifiable.
This appeal, as requested by the counsel representing the Appellant-Revenue, is disposed of, with a liberty to take appropriate recourse of law for rectification of the order of the CESTAT.
-
2021 (6) TMI 1037
Penalty u/s 271(1)(c) - search u/s 132 - additions on account of assessment u/s 153A - HELD THAT:- This sub-clause contemplates that the assessee would be directed to pay a sum in addition to taxes, if any, payable by him, which shall not be less than , but which shall not exceed three times the amount of tax sought to be evaded by reason of concealment of income and furnishing of inaccurate particulars of income. The quantification of the penalty is depended upon the addition made to the income of the assessee.
The assessee has filed appeals before the Tribunal against these quantum additions in all these three years under consideration. The Tribunal vide order dated 27.12.2017 has remitted the issue of additions to the file of the ld.CIT(A) for de novo proceedings, therefore, no penalty at this stage is quantifiable or imposable. Since the issue of quantum addition has been remitted to the file of the CIT(A), we remit the issue regarding levy of penalty in these years as well to the file of CIT(A).
CIT(A) after adjudication of the quantum additions, shall take a call as to whether penalty is to be imposed upon the assessee or not. In other words, the ld.CIT(A) shall decide the issue regarding levy of penalty after determination of the income in pursuance of Tribunal’s order in the above three years. Appeals of the assessee are allowed for statistical purpose
-
2021 (6) TMI 1036
Refund of service tax or GST - seeking for a remand for the reason that the disputes relating to the tax paid on the very same service are pending before different jurisdictional authorities - HELD THAT:- It is seen that though tax paid is in the nature of service tax and GST, it is paid on the very same service. If the matter is adjudicated by a common authority, such authority would be able to look into all aspects and give a correct decision in the matter. Further, though they had sent a representation dt. 19.11.2019 to the Principal Chief Commissioner to provide clarity as to which jurisdiction would apply for refund in their case, they have not received any response till date - it is seen that appellant had paid both service tax as well as GST. This has occurred during the transition period to new tax regime of GST. As abundant caution they have made such claim of refund as paid by the earlier company as well as the Merged/new Company of TVS Logistics Services. The Commissioner (Appeals) in the impugned order OIA No.103/2020 dt. 15.12.2020 has also been at confusion to resolve the issue and has remanded the matter to be kept pending till the appeals pending before CESTAT are decided.
In the present case, without appointing a common authority for adjudication of these refund claims, the matter cannot be resolved since tax is paid under two different tax laws, i.e. Finance Act, 1994 and G.S.T. Act, 2017. Taking note of this fact, in the interest of justice, the Principal Chief Commissioner of GST and Central Excise of Tamil Nadu is directed to nominate a common adjudicating authority for denovo-processing of all these three refund claims.
Appeal allowed by way of remand.
-
2021 (6) TMI 1035
Unverifiable purchases - assessee was asked to reconcile the difference in respect of receipts by the AO during the assessment proceeding - HELD THAT:- Merely maintaining the books of accounts and not giving a plausible explanation regarding the purchases, the same cannot be stated that it is identical to the earlier Assessment Year 2011-12. This issues are a factual centric and purchases may be different in each year. The matter is not identical to that of Assessment Year 2011-12 in context of each Assessment Year is a different Assessment Year and to prove that these are estimated additions has to be determined after the proper perusal of the evidence before the AO.
Before the CIT(A), the assessee has submitted that books of account, purchase bills, wages/salary registers were produced but was not examined properly by the AO as per the contention of the Ld. AR. The assessee has not filed any paper book before us as to show which documents were before the Assessing Officer. Therefore, it will be appropriate to remand back the issue to the file of the Assessing Officer for taking proper cognizance of all the records related to books of accounts, purchase bills, wages/salary registers etc. Appeal of the assessee is partly allowed for statistical purpose.
-
2021 (6) TMI 1034
SSI Exemption - benefit of N/N. 8/2003-CE dated 1.3.2003 - power driven submersible pumps and motors thereof falling under Chapter Heading 8413 and 8501 of the Central Excise Tariff - appellant did not have the BIS certification - Suppression of facts - extended period of limitation - HELD THAT:- It is undisputed that the appellant manufactured products which were not eligible for exemption Notification No. 8/2003-CE dated 1.3.2003, as amended, unless their products met the BIS standards. For the relevant period, the appellant had no certification from BIS and no such certificate has been produced till date. It has also not been established that an application for certification was pending before the BIS authorities and it has been issued subsequently. Therefore, it is not possible to agree with the contention of the learned Chartered Accountant for the appellant that the appellant was eligible for the benefit of exemption notification even though it had no BIS certificate, because the certificate was issued much later in 2014 which means that their products met the standards of BIS all through.
Extended period of limitation - HELD THAT:- In this case, the demand was raised after the normal period of limitation. In order to invoke the extended period of limitation either fraud or collusion or wilful mis-statement or suppression of facts or violation of Act or Rules with an intent to evade payment of duty must be established - The fact that the goods were not certified by BIS was in the exclusive knowledge of the appellant and they have not disclosed it to the Revenue. This shows that the appellant had an intention to evade payment of duty. It also establishes that the appellant has suppressed the information from the Department. It is only an audit and verification of records which got these facts to light.
It has been recorded by the Commissioner (Appeals) in the impugned order the transactions were recorded in the books of account of the assessee and all goods were cleared under an invoice. This also establishes that the appellant had no intention to evade payment of duty - the intent to evade payment of duty is missing and has not been established by the Revenue.
Appeal allowed - decided in favor of appellant.
-
2021 (6) TMI 1033
Deduction u/s 11(1) denied - amount of unutilized grant in aid treated as income - HELD THAT:- The source of funding for the various projects run by the society is from government grants, state government grants, FCRA Funds/contributions from various countries and donations etc. The accounts of the assessee are subject to statutory audit and also audit by the Government Agencies like AGCR and by the auditors appointed by the funding agencies. These facts were not disputed by the AO. The grant/funds received from Government, various Ministries and grants from foreign contributions/funds are in pursuance to agreements/contracts and in terms thereof the amount of unutilized grants is liable to be refunded.
AO while passing an order u/s 143(3) has wrongly considered the amount of unutilized grant in aid as income and disallowed on ad-hoc basis from the expenses incurred or funds applied for charitable purposes. AO has also wrongly denied deductions u/s 11(1) to the society which is not just and proper once, the assessee society has given the details of the unutilized grant in aid and expenses and fulfills the criteria prescribed under Section 11(1) - CIT(A) has taken a proper cognizance of all the relevant facts thereby calling remand report from the AO. The Assessing Officer has not given any adverse comment in respect of the remand report regarding the assessee’s contentions before the CIT(A). Therefore, there is no need to interfere with the findings of the CIT(A). The appeal of the Revenue is dismissed.
-
2021 (6) TMI 1032
Revision u/s 263 - Valuation of fair market value of the unquoted per equity share - HELD THAT:- AO at the time of assessment order / proceedings has specifically raised queries relating to the fair market value of the unquoted per equity share and the related document were present before the AO while passing the final assessment order. After perusal of the document which were presented before the AO, we have noticed that the reasoning given by the Pr. CIT that the total share of 39,510 at ₹ 220/- per share against the face value of ₹ 10/- each and the received share premium to the tune of ₹ 82,97,100/-, has totally ignored the explanation given by the Assessee before the Assessing Officer as well as before the Pr. CIT. The assessee has properly demonstrated through bank statement, the valuation under Rule 11UA along with audit report and audit trading account as relates to the FMV of the share premium.
There is no prejudice to the revenue and Section 263 of the Act cannot be invoked in the present case. After going through the evidences and submissions the Assessing Officer passed the Assessment Order. While invoking Section 263 (1) of the Income Tax Act, 1961, the Pr. CIT has not made out the case that the Assessment Order is passed without making inquiries or verification which should have been made. There was no material brought by the Pr. CIT stating therein that the Assessment Order is passed allowing any relief without inquiring into the claim of the assessee. - Decided in favour of assessee.
In the present case the Assessing Officer has made all the inquiries and after verifying the documents/ material on record passed a reasoned Assessment Order. Therefore, the Commissioner does not have any locus standi to make further inquiry. - Decided in favour of assessee.
-
2021 (6) TMI 1031
Scheme of Amalgamation - seeking dispensation of the meeting of the Equity Shareholders, Secured Creditors and Unsecured Creditors in respect of the scheme of Amalgamation - Sections 230 to 232 and other relevant provisions of the Companies Act, 2013 - HELD THAT:- The material on record establishes that the ‘Transferee Company’ is a Wholly Owned Subsidiary of the ‘Transferor Company’ and there is no issuance of any new shares and therefore there is no reorganization of share capital and consequently no arrangement wherein Shareholders have to compromise with Creditors of the ‘Transferor Company’. The documentary evidence substantiates that the net worth of the ‘Transferee Company’ is definitely positive - there are force in the contention of the Learned Counsel appearing for the Appellants that there are no Creditors in the subsidiary Companies and that the ‘Transferee Company’ is the only Shareholder of the ‘Transferor Company’.
This Tribunal has placed reliance in IN RE : DLF PHASE – IV COMMERCIAL DEVELOPERS LIMITED, DLF REAL ESTATE BUILDERS LIMITED, DLF RESIDENTIAL BUILDERS LIMITED, DLF UTILITIES LIMITED AND DLF LIMITED [2019 (8) TMI 829 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI] and observed that the scheme would not prejudicially affect the Creditors or Shareholders of the Appellant Company when an Application is filed by the ‘Transferor Company’ or ‘Transferee Company’, a separate Application is not necessary and dispensed with the meeting of the equity Shareholders and Creditors of the Appellant Company. At the cost of repetition, keeping in view that the financial position of the ‘Transferee Company’ is highly positive, the merger does not involve any compromise/arrangement with any Creditor of the Company, that there would be a positive net worth and Creditors would not be compromised, the Tribunal ought to have exercised the discretion in dispensing with the requirement of convening the meeting which would facilitate ease of doing business and save time and resources.
When the ‘Transferor and Transferee Company’ involve a parent Company and a Wholly Owned Subsidiary the meeting of Equity Shareholders, Secured Creditors and Unsecured Creditors can be dispensed with as the facts of this case substantiate that the rights of the Equity Shareholders of the ‘Transferee Company’ are not being affected - the direction in respect of the Transferee Company issued by the NCLT, to convene the meetings of the Equity Shareholders, Secured Creditors and Unsecured Creditors on 22.04.2021 is set aside - application allowed.
-
2021 (6) TMI 1030
Assessment u/s 153A - Disallowance of section 80IAB - whether there was any incriminating material found during the course of the search qua the part disallowance of deduction under section 80 IAB? - HELD THAT:- There is no question of considering the same as part of the incriminating material found during the course of the search. DR has further referred to the remand report of the AO, wherein it is mentioned that disallowance in question was based on documents and statement recorded both during and post search proceeding. DR was given opportunity to produce any such search material related to part disallowance u/s 80IAB, which is in the nature of the incriminating, but he failed to produce any such incriminating material.
CIT(A) has already rejected the contention of the AO in remand proceeding which were based on the appraisal report. Merely, if it is mentioned in the appraisal report that certain documents are found during the course of the search, which are incriminating in nature, it cannot be presumed that such material was found. The onus is on the Revenue to substantiate their claim with the help of producing relevant incriminating material either before the Ld. CIT(A) or before the Tribunal. The Revenue cannot take shelter of the appraisal report, which is a confidential document between the Investigating Wing and the Assessing Officer and not a documentary evidence to be relied upon by the Appellate Authority.
The second condition of the ratio of the decision in the case of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] is not satisfied in the facts of the instant case. The finding of the Ld. CIT(A) on the issue in dispute is well reasoned and accordingly, we uphold the same. The grounds raised by the Revenue are accordingly dismissed.
-
2021 (6) TMI 1029
Bogus LTCG - Addition u/s 68 - No satisfactory explanation of identifying the scrip for investment - HELD THAT:- Where the purchase has not been done through open platform of recognized stock exchange and the SEBI has also noticed abnormal activities of artificial price rigging in the shares of M/s Cressand Solutions Ltd., the assessee has failed in discharging his onus of substantiating the transaction of long-term capital gain as a real transaction. The order of the Learned CIT(A) on the issue in dispute is well reasoned and we do not find any infirmity the same. Accordingly, we uphold the same. The grounds raised by the assessee are dismissed.
-
2021 (6) TMI 1028
Challenge to Approval of Resolution Plan - HELD THAT:- Without rights claimed by Appellant being adjudicated before Adjudicating Authority, Appellant cannot maintain challenge to approval of Resolution Plan by way of Appeal. No comments are made on the merits of rival claims. Suffice it to state that the Appellant – third party is trying to maintain this appeal challenging the Resolution Plan approved, without getting decided I.A. No. 929 of 2021, one way or other.
The appeal is disposed of as premature with liberty to the Appellant to raise admissible issues.
-
2021 (6) TMI 1027
Addition u/s 68 - unexplained cash credit - Can the amount of share money be regarded as undisclosed income under section 68 ? - CIT-A deleted the addition - assessee has issued share warrants to M/s BDPL during the year - HELD THAT:- The transactions were duly reflected in the financial statements of the investor entity. The transactions have taken place through banking channels. After going through all these facts and evidences, we find that the onus casted upon assessee in terms of requirement of Sec.68 to prove the identity of the investor, their respective creditworthiness and the genuineness of the transactions, was duly discharged by the assessee. The onus, had thus shifted on Ld. AO, to disprove the assessee’s documents and to bring on record any material to prove that assessee’s own money flew back to it in the shape of share warrant application money. However, noting of that sort is available in the assessment order.
The documents, which in the opinion of Ld. AO could not be furnished, include correspondence with M/s BDPL prior to issue of warrants, details of introducers of directors of M/s BDPL, details of services taken from investment banker, proof of receipt of share warrant application form, proof of dispatch of notice of AGM along with postal records, proof of dispatch of share warrants and shares. However, all these documents, as rightly noted by Ld. CIT(A), were not of much relevance since the transactions were duly confirmed by the investor entity as supported by other vital documentary evidences. So far as the applicability of the provisions of Sec.56(2)(viia) is concerned, the same do not apply to the assessee since the assessee is not the recipient of any property rather it is only an issuer of share warrants only and therefore, these provisions do not apply to the assessee.
As settled position of law that to avoid the rigors of Section 68, the assessee must prove the identity, creditworthiness of the lenders / investors to advance such monies and genuineness of the transactions. Once these three ingredients are shown to be fulfilled by the assessee, the primary onus casted upon him, in this regard, could be said to have been discharged and accordingly, the onus would shift upon revenue to dislodge the assessee’s claim by bringing on record material evidences and unless this onus is discharged by the revenue, no addition could be sustained u/s 68.
The assessee had discharged the onus of proving the fulfillment of primary requirements of Section 68 and the onus was on Ld. AO to disprove the same. In the absence of any such facts on record, the impugned additions could not be sustained in the eyes of law and therefore, Ld. CIT(A) has rightly deleted the same. - Decided against revenue.
-
2021 (6) TMI 1026
Classification of goods - ayurvedic medicaments - classified under Chapter 30 of the Central Excise Tariff Act 1985 or as cosmetics under Chapter 33 of the Tariff Act? - amendments made in the provisions of the Tariff Act w.e.f. 28.02.2005 - Effect on change in the classification of the products in dispute - discharge of burden to prove that the products are classifiable under Chapter 33 of the Tariff Act - applicability of Clause 3(c) of the General Rules.
Whether the amendments made in the provisions of the Tariff Act w.e.f. 28.02.2005 have effected any change in the classification of the products in dispute as claimed by the department? - HELD THAT:- A perusal of Chapter Note 1(d) of Chapter 30 prior to 28.02.2005 shows that the said Chapter would not cover preparations of Chapter 33 even if they have therapeutic or prophylactic properties. Even after amendment, Chapter Note 1(d) shows that Chapter 30 would not cover preparations of Headings 3303 to 3307 even if they have therapeutic or prophylactic properties. Thus, even before the amendment or after the amendment Chapter 30 would not cover preparation of Chapter 33 or preparation of Headings 3303 to 3307 of Chapter 33. It has, therefore, to be first established that the preparations fall in Chapter 33 or Headings 3303 to 3307 of Chapter 33. The Heading of Chapter 33 both before the amendment and after the amendment is “essential oils and resinoids oils; perfumery, cosmetic or toilet preparations.” The Headings 3303 to 3307 or 33.03 to 33.07 of Chapter 33 deal with cosmetic products. It would, therefore, have to be first established by the department that the products of the appellant fall under Chapter 33 as cosmetics. The requirement prior to 28.02.2005 was that the products should be suitable for use as goods of these Headings and put up in “packings with labels, literature or other indications that they are for use as cosmetics” - the requirement of a product to be suitable for use as cosmetics or toilets preparation continues. Much emphasis has been placed by the Learned Authorised Representative of the Department that for a product to be cosmetics the requirement that the packing should have a label mentioning that the product is for use as cosmetics or toilet preparation is no longer the requirement after the amendment. This may be so but the department has still to prove that the product is either cosmetic or toilet preparation.
Whether the department has discharged its burden to prove that the products are classifiable under Chapter 33 of the Tariff Act? - HELD THAT:- It is seen that the Adjudicating Authority had noted that the products of the appellant contained ingredients which were ayurvedic in as much as they were mentioned in ayurvedic texts. The Department, however, failed to establish conclusively that the products manufactured by the appellant were cosmetics and only an inference that the products were cosmetics has been drawn because of the amendments made on 28.02.2005.
Whether the products of the appellant are classifiable as medicament under Chapter 30 or as cosmetics under Chapter 33 of the Tariff Act? - HELD THAT:- Its need to be noted that the Commissioner while adjudicating on the seventh show cause notice examined in detail whether the products manufactured and cleared by the appellant were medicaments. The Commissioner after noticing that medicaments were substances having therapeutic or prophylactic uses, held that the preparations of the products manufactured and cleared by the appellant meet the requirements of medicaments prescribed under chapter 30 of the Tariff Act - The Commissioner thereafter examined whether the products were used for therapeutic/prophylactic purposes or beauty enhancement and on examination of the documents and submissions advanced on behalf of the appellant concluded that the products manufactured and cleared by the appellant were not meant for daily use or as a substitute for regular cosmetic products. The contention on behalf of the appellant that they were meant for therapeutic/prophylactic purposes was, therefore, accepted.
The aforesaid findings of the Commissioner are based on appreciation of the legal and factual position emerging from examination of the products manufactured and cleared by the appellant. The Commissioner also observed that the products were neither meant for daily use nor they were cosmetics and were ayurvedic medicines classifiable under Chapter 30 of the Tariff Act.
Whether Clause 3(c) of the General Rules can be applied in this case as held by the Adjudicating Authority? - HELD THAT:- Clause 3 (c) of the General Rules would apply only when the goods cannot be classified by the reference to (a) or (b). So far as appellant is concerned there is no doubt that the products would be classifiable under (b). Thus, clause (c) of the General Rules would have no application in the facts and circumstances of the present case - there is no manner of doubt that the products manufactured and cleared by the appellant are not cosmetics under Chapter 33 or 34 of the Tariff Act and are medicaments falling under Chapter 30 of the Tariff Act.
Appeal allowed - decided in favor of appellant.
-
2021 (6) TMI 1025
Approval for exemption u/s.80G - applicant is registered under section 12AA - HELD THAT:- In order to grant exemption u/s.80G of the Act, it is very essential for the Ld. CIT(Exemption) to satisfy himself as per Section 80G(5) r.w.r.11AA of the Income Tax Rules, 1962. That the genuineness of the charitable activities undertaken by the assessee trust/institution should has to be ascertained. The assessee in this case was unable to furnish credible evidences specifically the bills/vouchers in respect of the expenditure claimed with regard to activities performed as per Object Clause of the assessee trust/institution.
We are of the considered view, one more opportunity should be granted to the assessee for the very fact that Income Tax Legislations are welfare legislation and not penal legislation and therefore, adjudication on merits before the Ld. CIT(Exemption) is required. DR did not raise any objection. We set aside the order of the CIT(Exemption) and remand the matter back to his file to re-adjudicate the issue as per law and at the same time, we direct the assessee/ applicant to file necessary evidences/documents before the Ld. CIT(Exemption) as would be called for so that the requirements of Section 80G(5) r.w.r.11AA of the Rules would be satisfied. Appeal of the assessee is allowed for statistical purposes.
-
2021 (6) TMI 1024
Disallowance of interest expenses - assessee did not collect any interest from the advances made - addition of interest on the interest free advances computed @ 14.5%, being the rate charged by SBI - HELD THAT:- Admittedly, the own funds available with the assessee as at the beginning and end of the year worth ₹ 367.92 crores and ₹ 416.53 crores respectively. The interest free advances given by the assessee is ₹ 87.30 crores as on 31.3.2013. It has been held by Hon'ble Bombay High Court in Reliance Utilities & Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] that where the interest free funds far exceed the value of investments, it should be considered that investments have been made out of interest free funds. Accordingly, the interest disallowance is not called for in the present case.. Even though the A.O. has observed that the Ld. A.R. has accepted for the addition of interest expenditure, the said observation is being disputed now before us. In any case, the decision rendered by Hon'ble Bombay High Court supports the case of the assessee. - Decided in favour of assessee.
Ad hoc disallowance of other expenses - AO made ad hoc disallowance of 25% of the aggregate amount of expenses - HELD THAT:- Admittedly, the assessee did not furnish evidences in support of the claim of various expenses before the A.O. As pointed out by Ld. D.R., we also notice that the additional evidences furnished by the assessee are mainly in the form of ledger account copies, self-made vouchers, etc. Hence, we are of the view that no useful purpose would be served in admitting these additional evidences and in remitting the matter to the file of the A.O. Accordingly, we decline to admit the additional evidences. However, we are of the view that the disallowance @ 25% made by the A.O. is on the higher side, since the assessee is a limited company and its accounts are being audited - the non-production of details and vouchers was also not appropriate. It is settled proposition that the onus to prove the claim would lie upon the shoulders of the assessee - disallowance of expenses may be reduced to 12.5% and the same would meet the ends of justice. Accordingly, we modify the order passed by Ld. CIT(A) on this issue and direct the A.O. to restrict the disallowance to 12.5% of the other expenses claimed by the assessee - Appeal filed by the assessee is partly allowed.
............
|
9911796707
