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Showing 141 to 160 of 1740 Records
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2019 (9) TMI 1606
Permission for withdrawal of petition - HELD THAT:- Referring to clause 9 of the Minutes, learned counsel appearing for the petitioner would submit that he has withdrawn this writ petition.
In view of the submission made by the learned counsel appearing for the petitioner, the Writ Petition stands dismissed as withdrawn.
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2019 (9) TMI 1605
Omission and commission on the part of the officials of the MHADA - wrongful loss to the State and wrongful gain to the developers - compulsory acquisition of part of property constructed by the petitioners on their own lands - exhaustion of statutory remedies - HELD THAT:- The material placed on record by the respondents themselves, clearly shows, that for years together and atleast since 1991 neither officials of MHADA nor of the Board, have taken any steps to recover the penalty as levied (as referred to here-in-above) or to recover constructed area from such developers to whom permissions were granted for re-developing cess buildings.
The two high rank officers of the State were of the opinion that complaint of the petitioner prima-facie discloses cognizable offence committed by the officials of the MHADA/ Board. However, in spite of this fact, officers of the EOW and officers of the ACB declined to entertain the complaint either by disputing facts and figures disclosed in the petition and/or by saying that initiating proceedings against the officials of the MHADA may amount to double jeopardy. It is nothing but shirking the responsibility and acting in defiance of provision of Penal Laws.
Material on record equally indicates that the component of constructed area, which is to be surrendered to the MHADA, has been sold by the developers in the open market. Though this fact was within knowledge of the officers of the MHADA/Board, they turned nelsons eye, obviously for the reasons known to all. Thus, we are of the considered opinion that the complaint and material on record constitutes credible information, which prima-facie discloses commission of cognizable offences punishable under the Indian Penal Code and other penal laws - The P.C. Act is amended by Amendment Act 16 of 2018 so as to fill in the gaps in description and coverage of the offence of bribery so as to bring it in line with the current international practice and also to meet more effectively India's obligation under the U.N. Convention. The provision for previous approval is aimed at providing a safeguard to a public servant from vexatious prosecution for any bonafide omission or commission in the discharge of official duties. It is not a shield to protect officials who do not act bonafide but with ulterior motives.
This is not the case of rejection only on the ground of alternate remedy since rule of exclusion of alternate remedy is satisfied here. In the case in hand two high rank officers after examining material on record held opinion that such material disclosed cognizable offence, however, they sought permission of the State to hold enquiry may be in the light of provisions of Section 17A of the Prevention of Corruption Act (Amendment) Act, 2018. The fact remains that the concerned authority has not granted permission within the required period but that itself will not absolve respondents from registering the FIR - taking into consideration material on record, for the reasons stated constitutes credible information and/or material shows prima-facie positive or tacit acquiescence of officials with defaulting developers and discloses commission of cognizable offence by the officers of the MHADA/Board punishable under the Indian Penal Code and other penal laws and, therefore, Economic Offences Wing are directed to register the FIR within five days from today.
Petition allowed in part.
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2019 (9) TMI 1604
Permission to travel foreign country - restriction by Immigration Officer ostensibly on the ground of lookout circular by the Immigration Department, Ministry of Home - HELD THAT:- The petitioner is aged 65 years and is senior citizen, who desires to travel to USA in his capacity as a Consultant to one Next-Decade, a USA based company with business transactions in the field of Liquefied Natural Gas, the petitioner being Chemical Engineer is Consultant for such product. The petitioner was to travel to Singapore for which the petitioner had booked tickets and was to travel on 05.09.2019 from International Terminal at Ahmedabad. However, the Immigration Officer had restricted the petitioner from travelling and upon inquiry, the petitioner was informed that on account of instructions issued by respondent No.4-Bank, the petitioner is not permitted to travel abroad.
From the affidavit filed by respondent No.4- Bank it appears that on 26.08.2019 General Manager & Head (Legal & RTI) has issued communication to the Deputy Director, Bureau of Immigration with a request to opening lookout circular against the petitioner in the prescribed form. Till date, it appears, no decision has been taken on such request for lookout circular. The Court, therefore, proceeds on the presumption that no lookout circular exists as on date and therefore, passes an order permitting the petitioner to travel abroad as per his travel plans between the period 15.09.2019 to 04.10.2019 on conditions imposed.
The petitioner is accordingly permitted to travel abroad and the Immigration Authorities of the Union of India will permit the petitioner to travel in accordance with the order of this Court - S.O. to 09.10.2019.
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2019 (9) TMI 1603
Validity of assessment - notice u/s 142(1) came to be issued in the name of deceased person - HELD THAT:- This Court is convinced that the impugned order requires to be set aside since the notice itself was issued against a dead person. In that view of the matter, the appeal is allowed and the impugned order confirming the order of the Appellate Commissioner is hereby set aside. Consequently, the order passed by the Income Tax Officer, Ward 3(2)(2), Bangalore is also set aside. The matter is remanded back to the Assessing Officer to redo the entire procedure bearing in mind that the assessee is no more.
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2019 (9) TMI 1602
Maintainability of application - initiation of CIRP - Corporate Debtor defaulted to make repayments of the loan in accordance with the terms of the Loan Agreement - Financial creditors - existence of debt and dispute or not - HELD THAT:- On due perusal of the documents annexed, the Debt is to be qualified as “Financial Debt” as defined under section 5(8) of Insolvency & Bankruptcy Code, 2016. As a result, the Financial Creditor has filed this Application for initiating Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. Facts and circumstances have also established the “Default” on the part of the Debtor Company.
Since this is a Petition of “Financial Creditor”, therefore, the Insolvency Process shall commence as prescribed under Section 7 of I&BC, 2016.
Application admitted - moratorium declared.
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2019 (9) TMI 1601
Right to life with dignity Under Article 21 - Seeking to direct the Central Government to enact a suitable stand-alone, comprehensive legislation against custodial torture as it has directed in the case of mob violence/lynching - whether within the constitutional scheme, this Court can and should issue any direction to the Parliament to enact a new law based on the UN Convention?
HELD THAT:- Having elucidated the doctrinal basis of separation of powers and mutual interaction between the three organs of the State in the democratic set-up, it would be important to draw clear distinction between interpretation and adjudication by the courts on one hand and the power to enact legislation by the legislature on the other. Adjudication results in what is often described as judge made law, but the interpretation of the statutes and the rights in accordance with the provisions of Articles 14, 19 and 21 in the course of adjudication is not an attempt or an act of legislation by the judges - the legislature itself entrusts the judiciary to lay down parameters in the form of precedents which is oft-spoken as judge made law. This is true of many a legislations. Such law, even if made by the judiciary, would not infringe the doctrine of separation of powers and is in conformity with the constitutional functions.
It is apparent that law-making within certain limits is a legitimate element of a judge's role, if not inevitable. A judge has to adjudicate and decide on the basis of legal provisions, which when indeterminate on a particular issue require elucidation and explanation. This requires a judge to interpret the provisions to decide the case and, in this process, he may take recourse and rely upon fundamental rights, including the right to life, but even then he does not legislate a law while interpreting such provisions. Such interpretation is called 'judge made law' but not legislation.
When the matter is already pending consideration and is being examined for the purpose of legislation, it would not be appropriate for this Court to enforce its opinion, be it in the form of a direction or even a request, for it would clearly undermine and conflict with the role assigned to the judiciary under the Constitution - For the grant of compensation, therefore, proceedings Under Article 32 or 226 of the Constitution are entertained when violation of the fundamental rights granted Under Article 21 is established. In such cases, claims of a citizen are tried on the principle of strict liability where defence of sovereignty may not be available.
The contention of the Applicant is that this Court must direct the legislature, that is, Parliament, to enact a suitable standalone comprehensive legislation based on the UN Convention and this direction, if issued, would be in consonance with the Constitution of India. This prayer must be rejected - Application disposed off.
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2019 (9) TMI 1600
Unexplained cash credits - Assessee explained it to be refund in cash of advance paid by cheques to two farmers for purchase of agricultural land on non-materialization of purchase deal - HELD THAT:- The case of the Revenue is based upon the fact that the assessee has paid advance for the purchase of land, which beard the same survey number from two parties from whom advances were received. The case of the Revenue is simply on the basis that refund of advance was made in cash on various date and deposited by the parties in the bank account of the assessee.
As perused the balance sheet of the assessee as on 31.03.2008 and observe that the advances given to Shri Mehmudbeg Umergeb Mirza and Shri Amirbeg Umergeb Mirza were outstanding as on 31.03.2007 and were nil on the corresponding date in the current previous year i.e. 31.03.2008. We also observe from the ledger account of these two parties as appearing in the books of the assessee that the advances were refunded on various dates due to cancellation of the purchase agreements. Thus, the case of the Revenue is totally based upon suspicion and presumptions whereas the assessee has proved by way of evidence in the form of copy of balance sheet, ledger account, confirmations/affidavits from the parties who made the refunds. - Decided in favour of assessee.
Allowability of Staff Welfare Expenses - addition as made by the AO for providing food to the employees during the office hours in the Ramzan month as not been incurred for the business of the appellant - HELD THAT:- Assessee being a follower of Muslim religion has to incur these expenses in order to motivate the work force - assessment order and the appellate order were passed in a cryptic manner without bringing any facts on record to prove that these were personal expenses of the Directors. The addition was made purely on the basis of grey work of the AO - CIT(A) also upheld the same observing that expenses were incurred in a disproportionate ration and not reasonable. Even if for a moment, if we go by the theory of the Revenue authorities that the expenses are not reasonable, even then the total disallowance is not justified - addition made by the AO is not correct and needs to be reversed.- Decided in favour of assessee.
Addition towards excess physical stock over the book stock of the assessee - GP margin on excess of book stocks over physical stocks - HELD THAT:- We find that the assessee is operating from four locations as mentioned hereinabove and has the system of Management Information System in place for accounting of its inventories. The assessee has filed reconciliation explaining the discrepancies in the stocks as noted by the search party. The assessee has also filed before us the various documents and reconciliation explaining the said discrepancies. Moreover, the assessee has explained why the said discrepancies have arisen which are very minor and within norms - As in Balaji Wire Pvt. Ltd. [2007 (8) TMI 7 - HIGH COURT, NEW DELHI] the Hon’ble Delhi High Court has affirmed the order of the Tribunal deleting the addition on account of excess stock calculated by the Revenue - assessee can not be made to suffer from the lethargy of the officers of the revenue when the search party did not find any incriminating evidences - we direct AO to delete the additions on account of excess stock and on account of GP margin on excess of book stocks over physical stocks. - Decided in favour of assessee.
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2019 (9) TMI 1599
TP Adjustment - comparable selection - adjustment on provision for Research and Information Transaction is exclusion of the company M/s Aditya Birla Capital Advisor P. Ltd from set of comparables - HELD THAT:- It is undisputed that the company M/s Aditya Birla Capital Advisors Pvt. Ltd. has earned revenue from providing management services. Further, from the annual report of the company, it is also evident that the company has been engaged in advising and managing venture capital funds. The activity of advising investment management is quite distinct from the services provided by the assessee under the transaction of research and information services. We hold that the company is functionally dissimilar to the assessee and direct the learned AO/TPO to exclude the company from the final set of the comparables.
TP adjustment - interest on outstanding receivables arising from International transactions of research and information and IT support services - HELD THAT:- Tribunal in the case of Pegasystems Worldwide India (P) Ltd [2015 (10) TMI 2495 - ITAT HYDERABAD] has held as in case of a debt free company, there is no requirement for making transfer pricing adjustment on account of the interest on outstanding receivables.
We have verified the balance sheet of the assessee and find that the assessee has not borrowed any fund for its business activity and, thus, it being a debt free company, the ratio of the decision of the Tribunal in the case of Pegasystems Worldwide India (P) Ltd Vs ACIT (supra) is squarely applicable on the facts of the case. Accordingly, we delete the transfer pricing adjustment made on account of interest on receivables - Decided in favour of assessee.
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2019 (9) TMI 1598
Exemption u/s 11 - imparting of Yoga training through well-structured yoga camps - activity of the assessee falls under the clause 'education' and 'medical relief OR the last limb of 'advancement of general public utility' - Proof of charitable activity - charitable objects defined u/s 2(15) - Whether providing training of Sudarshan Kriya as per the syllabus of Shri Pandit Ravi Shanker, a famous meditation Guru through his sponsored charitable trusts cannot be termed at per with “Relief to the Poor”, “Education” and “Medical Relied”, rather the same would fall under the last limb of the proviso of Section 2(15) of the Act i.e. “the advancement of any other object of general utility”? - HELD THAT:- A bear perusal of section 11(2) would indicate that if a charitable trust fails to apply income referred to in clause (a) or clause (b) of subsection 1 towards its object during the previous year but has accumulated or set apart either in whole or in part, for application of the object of the trust in future years then such accumulation is to be regulated under the mechanism provided in clause(a),(b) and (c); the accumulation or setting apart would be required to be invested or deposited in the form or mode specified in sub clause 5.
As far as scope and interpretation of sub-clause 5 is concerned both the parties are not disputing to the same. This clause provides a mechanism as to how the accumulated fund would be required to be invested - while construing the meaning and scope of section 13(1) (d) we have to bear in mind the complete scheme of the section.
As per Circular No. 387, dt. 6th July, 1984 the relevant income is only required to be disallowed and not in respect of the income of the appellant trust. However, the exemption under section 11 or 12 of the Act is not permissible to be denied. In this aspect we have also carefully considered the judgement passed by the Learned Tribunal in the case of Gurdayal Berlia Charitable Trust [1990 (6) TMI 92 - ITAT BOMBAY-B] where similar issue was discussed taking into considering that particular circular being No.387 containing explanatory notes on the Finance Act, 1994 wherein as pleased to hold that the breach of section 13(1)(d) and 13(2)(h) would lead to forfeiture of exemption of income derived from such investment and not the entire income would be subjected to the maximum marginal rate of tax under section 164(2) of the Act. Ultimately it was held that exemption under section 11 is available to the assessee only on the income to the extent the same is derived in conformity of section 11 and applied during the year for such purpose of charitable trust.
Donation as application of funds - Whether assesses activities are not in the nature of charity as hit by section 2(15)? - HELD THAT:- If the donations have been made from the income of the previous year and not out of the accumulation under section 11(2) then the same be eligible to be considered as application of income as long as the recipients are charitable organizations. Having regard this particular aspect of the matter the AO has been further directed by the Learned CIT-A to verify as to whether these trust have the status of exemption under the Income Tax Act and also whether they are charitable organisation. Subject to such verification of the objects of the recipients the AO was directed to treat the application of income of the assessee, which in our considered view is just and proper and without any ambiguity so as to warrant interference. The order passed by the Learned CIT(A) is,thus,, conformed. Resultantly the appeal preferred by the revenue is dismissed.
Corpus donation addition since the assessee’s activities is not in the nature of charity as hit by section 2(15) as alleged - CIT(A) observed that Section 2(15) r.w.r. 13(8) of the Act is not applicable to the case of the appellant and further that the appellant would eligible to claim benefit u/s 11 and 12 of the Act including the deduction u/s 11(1)(d) of the Act which has been confirmed by us in this appeal. The Learned CIT(A) has, therefore, directed the Learned Assessing Officer to verify whether the corpus donation were received or the voluntary donations have been received by the appellant with a specific direction taking into consideration the entire aspect of the matter, which in our considered opinion is just and proper without any infirmity so as to warrant interference. Thus the appeal preferred by the revenue is found to be devoid of any merit and hence dismissed.
Loss of sale of assets - AO considered the appellant as an AOP and assessed the income of the assessee under section 28 to 44 and denied to claim of separate loss on account of sale of assets and thus it should have been considered in the block of assets as observed by the AO - HELD THAT:- Since the assessee has already been declared as an eligible exempt entity by the CIT(A), the assessee has further been declared to be eligible to claim the loss or profit on account of sale of assets in its income and expenditure account and in that view of the matter the relief towards such claim as loss on the sale of assets has been allowed by the CIT(A) - we do not find any infirmity in the impugned order passed by the CIT(A) so as to warrant interference - the question is accordingly answered in the affirmative, i.e. in favour of the assessee and against the revenue. Consequently the appeal fails and is accordingly, dismissed.
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2019 (9) TMI 1597
Levy of VAT - sale of the hypothecated Motor vehicles - liability on the sale of hypothecated Motor vehicles could be fastened on the Petitioner when the principal on whose behalf the sale was effected i.e. the borrower was not a dealer - Non-Banking Finance Company - Applicability of case of HDFC BANK LIMITED VERSUS THE STATE OF TAMILNADU [2015 (10) TMI 854 - MADRAS HIGH COURT].
HELD THAT:- In the case of HDFC Bank Ltd., the revision petition was filed before this Court questioning the correctness of the order of the Sales Tax Appellate Tribunal, which held that the Bank is liable to pay sales tax. The assessment under the TNVAT Act was revised by the Assessing Officer on the ground that the bank had not reported the sale of repossessed vehicle from defaulting customers in their return and not paid taxes thereon. As in the case on hand, the appeals filed before the first appellate authority as well as the Tribunal were dismissed. The question, which was framed for consideration by the Division Bench was whether the bank, which holds the hypothecation of vehicles in their favour would be a 'dealer' within the definition under Section 2(15) of the TNVAT Act, merely because, the bank seized and repossessed the hypothecated vehicle and brings it to sale.
If Explanation III to Section 2(15) of the Act covers the sale of even unclaimed goods, the contention of the seller (bank) must be in a position to pass on title, may not stand - In the event, there is a resistance by the borrower, the situation is taken care by appropriate amendments to Motor Vehicles Act, which empowers the lender to approach the appropriate authority and execute the transfer of ownership without consent of the borrower. Therefore, the right exercisable by the assessee is under a contract.
In INDIAN OIL CORPORATION VERSUS NEPC INDIA LTD & ORS [2006 (7) TMI 575 - SUPREME COURT], it was pointed out that the deed of hypothecation created a charge over the hypothecated asset with right to take possession in the event of default. Thus, on a conjoint reading of the above decisions and the modus operandi of the assessee, which in our considered view, is no different from that of the modus operandi adopted in the case of HDFC. Therefore, we are necessarily conclude that the decision in HDFC, would squarely apply to the case of the assessee.
A reading of clause 11(c)(ii) makes abundantly clear that the sale by the assessee of the hypothecated asset is without the consent of the borrower. The borrower has no right to question the value at which the asset was sold and sale will be done by the assessee without accountability to the borrower and the guarantor and the assessee will not be liable for loss or damage or diminution in value of asset/ security on account of exercise or non exercise of rights by the assessee and the borrower/guarantor will not be entitled to raise any claim against the assessee on the ground that a large sum of amount might have been received or dispute their liability for the remaining dues under this agreement - There are many such clauses in the agreement, which clearly elucidate that theory as propounded by the assessee that the sale is effected by them as an agent of the borrower has to necessarily fall.
No ground is is made for interference of the order of the Tribunal - the Tax Cases (Revision) are dismissed and the substantial questions of law framed for consideration are decided against the assessee.
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2019 (9) TMI 1596
Constitution of Committee of Creditors - admission of application u/s 9 of the 'I&B' Code - HELD THAT:- Working for 42 days, we accept the fee of Mr. Anurag Nirbhaya, IRP at ₹ 1,50,000/- for the total period. Therefore, Mr. Anurag Nirbhaya will be entitled to receive a sum of ₹ 2,82,000/- which is to be paid by the Appellant/'Corporate Debtor' within three weeks failing which, it will be open to the IRP to bring the fact to the notice of this Appellate Tribunal for appropriate orders.
In view of the settlement reached between the parties in exercise of power conferred under Rule 11 of NCLAT Rules, 2016, the impugned order dated 30th July, 2019 is set aside whereby the 'Corporate Insolvency Resolution Process' was initiated against 'M/s. Nikunj Woods Pvt. Ltd.' ('Corporate Debtor'). The application u/s. 9 of the 'I&B' Code filed by 'M/s. Lavis Signature Panel Pvt. Ltd.' stands disposed of as withdrawn.
The application preferred by the Respondent under Section 9 of the ''I&B Code' is dismissed - appeal allowed.
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2019 (9) TMI 1595
TP Adjustment - Determination of Arms Length Price (ALP) of the international transaction for rendering software development services (SWD) by the assessee to its Associated Enterprises (AE) under the provisions of section 92 - Comparable selection - exclude is L & T Infotech Ltd - HELD THAT:- As relying on the light of the decision pointed out by the learned DR, the issue of comparability of this company should be sent back to the AO / TPO for fresh examination as was directed by the Tribunal in the case of CGI Information Systems and Management Consultants Pvt. Ltd.,[2018 (10) TMI 1797 - ITAT BANGALORE]. We hold and direct accordingly.
Exclusion of provision of bad and doubtful debts from the operating cost of the comparable companies - While considering the international transaction in the distribution segment, the TPO has himself considered provision for bad and doubtful debts as part of the operating expenditure and by the same logic he should have treated provision for bad and doubtful debts as part of the operating cost in the hands of the comparable companies also. As far as the software development segment of the assessee is concerned, there is no provision for bad and doubtful debts.
As in the case of Principal CIT Vs. Business Process Outsourcing India Pvt. Ltd., [2018 (7) TMI 380 - KARNATAKA HIGH COURT] wherein in an appeal against the order of the Tribunal holding that provision for bad and doubtful debts should be considered as part of the operating expenditure, the Hon’ble High Court confirmed the order of the Tribunal and dismissed the appeal of the Revenue as one not giving rise to any substantial question of law - we are of the view that provision for bad and doubtful debts should be treated as operating expense while computing the PLI OP/OC of the comparable companies which ultimately remains for comparison.
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2019 (9) TMI 1594
Guidelines to determine Critical Wildlife Habitats within National Park or Sanctuary - public notices issued concerning Melghat Wildlife Sanctuary - HELD THAT:- The consultative papers notified to the inhabitants of the area, crystallized the scientific material gathered and the criteria proposed to be adopted to notify the Critical Wildlife Sanctuary in the State of Karnataka.
The Committee constituted in the State of Maharashtra as per Clause 5 of the Guidelines issued by MoEF are directed to notify the scientific data and the objective criteria which it proposes to adopt before Critical Wildlife Habitats are notified in the State of Maharashtra. The names of the members of the Expert Committee constituted in the State of Maharashtra would also be notified.
List the matter on 09th December, 2019.
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2019 (9) TMI 1593
Bar on utilization of CENVAT Credit on payment of excise duty - vires of Rule 8(3) of CER - Whether the Tribunal was justified in holding that the respondent during the default period can pay its excise duty liability on its final products through its Cenvat account and not only through its PLA in the face of Rule 8(3) of the said Rules? - HELD THAT:- Leave granted.
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2019 (9) TMI 1592
Refund of accumulated credit - refund sought on the ground that the credit stands not utilised by the appellant for export of services - denial of refund on the ground that the input services has no nexus with the output services or the credit stands availed on the basis of the irrelevant invoices etc. - HELD THAT:- It is seen that no objection was raised by the revenue at the time of availing of credit. Rule 5 allows refund of accumulated credit and at the time of grant of refund, the Revenue is not permitted to examine the availability of the CENVAT credit. Such an exercise was required to be adopted by the Revenue at the time of availment of credit, by way of initiation of separate proceedings. Having not done that, it is not permissible to raise the objection at the time of grant of refund in terms of the said rule - The reliance by the Learned Advocate to the Circular no. 120/01/2010-ST dated 19.01.2010 clarifying the issue that by observing that there cannot be different yardstick for establishing nexus for taking of credit and for refund of credit, is appropriate.
The issue stands decided by the many decisions of the Tribunal. One such reference can be made to the Tribunal decision in the case of M/S BARCLAYS GLOBAL SERVICE CENTRE PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX (VICE-VERSA) [2019 (6) TMI 902 - CESTAT ALLAHABAD]. It stands held in the said decision that as no objection was raised by the Revenue at the time of availing the credit, such objection cannot be raised at the time of deciding the refund claim in terms of provision of Rule 5.
There are no merits in the stand of the Revenue - appeal allowed - decided in favor of appellant.
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2019 (9) TMI 1591
Valuation - inclusion of amount of the VAT/Sales Tax retained by the appellant should have been included in the assessable value of the excisable goods - Section 4 (3) (d) of the Central Excise Act, 1944 - short payment of service tax under the Goods Transport Agency Service - HELD THAT:- The issue pertaining to inclusion of VAT/sales tax in the assessable value is concerned same has already been decided in cases of M/S SHREE CEMENT LIMITED VERSUS COMMISSIONER (APPEALS) , CENTRAL EXCISE, SERVICE TAX & CENTRAL GOODS & SERVICE TAX, JAIPUR-I [2019 (7) TMI 1862 - CESTAT NEW DELHI] where it was held that there is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans.
Non-availment of Cenvat credit - GTA service provider - HELD THAT:- This Tribunal’s decision in case of M/S PRAKASH INDUSTRIES LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2015 (7) TMI 430 - CESTAT NEW DELHI] where it was held that no consignment note as generally understood or delineated in Rule 4B was issued by the transporter to the appellant in the transaction the tax liability under GTA does not arise.
Since the issues involved in the present appeal is similar to the one decided by decisions of coordinate benches of this Tribunal, the same is followed - appeal allowed - decided in favor of appellant.
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2019 (9) TMI 1590
Grant of regular bail - fraudulent availment of irregular credit - fake invoices raising without making actual movement of goods - HELD THAT:- Prima facie it appears that the accused had floated some firms with the purpose to evade GST. Considering the totality of the facts, the accused does not deserve the concession of bail. Thus, the application filed by the accused for regular bail is hereby dismissed.
Application dismissed.
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2019 (9) TMI 1589
Bogus LTCG - Addition u/s 68 - Denial of deduction u/s 10(38) - company in which the assessee invested is a penny stock company - HELD THAT:- It is not brought on record how the assessee is involved in promoting the penny stock company and how the assessee involved in inflating the shares of the company. Moreover, the copy of the investigation report said to be received from the Investigation Wing of the Department at Kolkata was not furnished to the assessee. On identical circumstances, this Tribunal in the case of Kanhaiyalal & Sons (HUF) v. ITO [2019 (2) TMI 1640 - ITAT CHENNAI] has remitted back the matter to the file of the Assessing Officer for reconsideration.
This Tribunal is of the considered opinion that the matter needs to be re-examined by the Assessing Officer. Accordingly, orders of both the authorities below are set aside and the issue raised by the assessee with regard to deduction under Section 10(38) of the Act is remitted back to the file of the Assessing Officer - Appeal filed by the assessee is allowed for statistical purposes.
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2019 (9) TMI 1588
CENVAT Credit - duty paying invoices - invoices of dealer for inputs - allegation is that the cenvatable invoices of non-ferrous metals issued to the manufacturers of excisable goods without physical delivery of the goods - HELD THAT:- The facts herein are squarely covered by the precedent decision of this Tribunal in the case of Multimetals Ltd. & Others vs. CCE &ST, Udaipur [2018 (5) TMI 818 - CESTAT NEW DELHI], where it was held that In the instant case, it appears that the appellant has availed the cenvat credit on the basis of such duty paying documents and cleared the goods manufactured on payment of duty, which was accepted by the department without any objection.
In the facts of the present case also, it is found that the appellant Shri Shiv Kumar Garg whose statement was recorded by Revenue on 25.04.2016 has categorically stated that they have received the goods alongwith cenvatable invoices. Even on being confronted with the statement of Shri Amit Gupta and of the transport company, Shri Shiv Kumar Garg maintained the stand as they have physically received the goods that the same were entered in RG-23A Part –I and II register, and the payments for inputs were made through letter of credit, a copy of which is provided to the department - the appellant has sufficiently established that they have received the inputs alongwith duty paying documents, thus, taking of credit is under the scheme of the Act and as per the Rules.
Appeal allowed - decided in favor of appellant.
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2019 (9) TMI 1587
CENVAT Credit - duty paying documents - case of Revenue is that the impugned availment of cenvat credit the Notification introducing third proviso of Rule 4 (1) of Cenvat Credit Rules, 2004 was not in existence - HELD THAT:- The period of six months with respect to both the impugned Bills of Entry expires before the incorporation of proviso 3 in Rule 4 (1) of CCR, Rules, which waives the limitation of six months from the date of Bill of Entry.
It is apparent from the Notification dated 1st September, 2014 that there is no stipulation in the amending Notification for same to be applicable retrospectively. Rules of interpretation provide that whenever any statute is newly added, the same has prospective effect only, unless and until it is specifically provided in the amending statute or the amendment is by way of substitution of an existing provision, mainly by way of clarification or removal of defects. The same is not true for the impugned notification. Rule 9 of Cenvat Credit Rules, 2004 otherwise mandates the period of six months from the date of issue of relevant document for the purpose of raising respective claim.
The Commissioner (Appeals) has committed no error in holding that Cenvat Credit has been availed beyond six months of the impugned Bills of Entry - appeal dismissed.
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9911796707
