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Showing 21 to 40 of 1569 Records
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2023 (7) TMI 1552
Reopening of assessment - Scope of new regime - notice under the old regime - notice issued u/s 148 is invalid under the amended provisions - HELD THAT:- The assessment order which has been passed on 24.03.2022 is in the teeth of the judgment of Hon’ble the Supreme Court in the case of Union of India Vs. Ashish Agarwal [2022 (5) TMI 240 - SUPREME COURT].The order does not survive in the eye of law. Consequently, all subsequently demand notices, which have been issued also are rendered ineffective and inoperative in law.
What survives is an order passed u/s 148A (d) on 26.07.2022 under the new regime of law after amendment in the Income Tax Act with effect from 01.04.2021.
Therefore, in view of the above, the appeal which has been filed by the petitioner assailing legality and validity of scrutiny assessment order dated 24.03.2022 is also rendered infructuous. It goes without saying that the pre deposit amount, if any, made by the petitioner while filing appeal against the order dated 24.03.2022 is required to be refunded forthwith to the petitioner. The impugned demand notice dated 24.03.2022 is also rendered ineffective and inoperative in law.
This petition is accordingly partly allowed declaring the scrutiny assessment order dated 24.03.2022 as also demand notice dated 24.03.2022 ineffective and inoperative in law. The pre-deposit amount, if any, shall be refunded to the petitioner.
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2023 (7) TMI 1551
Exemption u/s 11 - exemption disallowed on the ground that registration u/s 12AA granted to the assessee stood cancelled - what's the charitable nature of activities carried out by assessee in terms of Section 2(15)? - as decided by HC [2022 (8) TMI 1400 - ALLAHABAD HIGH COURT] for the applicability of proviso to Section 2(15), the activities of the trust should be carried out on commercial lines with intention to make profit. Where the trust is carrying out its activities on noncommercial lines with no motive to earn profits, for fulfillment of its aims and objectives, which are charitable in nature and in the process earn some profits, the same would not be hit by proviso to section 2(15). The aims and objects of the assessee-trust are admittedly charitable in nature.
Mere selling some product at a profit will not ipso facto hit assessee by applying proviso to Section 2(15) and deny exemption available under Section 11.
HELD THAT:- In the light of the decision in the case of Ahmedabad Urban Development Authority [2022 (10) TMI 948 - SUPREME COURT] and as corrected by the order [2022 (11) TMI 255 - SUPREME COURT] the present Special Leave Petition stands disposed of in terms of the said decision. Pending application also stands disposed of.
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2023 (7) TMI 1550
Sufficient time to comply with Show cause notice - mandation of minimum seven-day notice period unless curtailed due to an expiring limitation period - HELD THAT:- Whether there is any CBDT provision in Income Tax Act, 1961 or the rules having empowered the CBDT to issue a directive on dispensation of requirement to give show cause notice on earlier omission by assessee in the proceeding. Nothing could be shown.
It transpires that revenue was mandated to give the show cause notice and on having given it was bound by directions made by CBDT on reasonable time for the assessee to answer. The statement in relied on passage in the counter saying that though compliance date was 16th December, 2022, scrutiny order was passed on 23rd December, 2022 after 11 days and assessee did not comply till then, demonstrates that there is no basis for curtailment of the response time.
We set aside and quash impugned assessment order and demand. The show cause notice is restored for being replied to. Assessee is to answer by 20th July, 2023, failing which scrutiny order dated 23rd December, 2022 culminating in impugned assessment order and demand will all stand automatically restored.
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2023 (7) TMI 1549
Maintainability of petition - availability of alternative remedy - non-constitution of Second Appellate Tribunal - HELD THAT:- Since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd appellate tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand within a period of fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition.
Application disposed off.
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2023 (7) TMI 1548
Maintainability of petition - availability of alternative remedy - non-constitution of Second Appellate Tribunal - HELD THAT:- Since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd appellate tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand within a period of fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition.
Application disposed off.
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2023 (7) TMI 1547
Short payment of Excise duty - capital/wage subsidy received under the Rajasthan Investment Promotion Policy is includable in the transaction value in terms of Section 4(3) (d) of the Act or not - reduction in the selling price - additional consideration or not - HELD THAT:- The third Hon’ble Member vide [2023 (3) TMI 1120 - CESTAT NEW DELHI] has decided the issue holding that 'Subsidy under the promotion policy does not reduce the selling price'
Conclusion - Since the subsidy under Promotion Policy is held to not to be an additional consideration, it is held that the impugned demands cannot sustain.
Appeal allowed.
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2023 (7) TMI 1546
Manipulation or structured trade - Fraudulent and Unfair Trade Practices under SEBI Act - trading pattern of the buyers and the sellers was that they traded in close proximity of time inter-se between them
HELD THAT:- No manifest error requiring review. The applications fail and are dismissed.
This order will be digitally signed by the Private Secretary on behalf of the bench and all concerned parties are directed to act on the digitally signed copy of this order. Certified copy of this order is also available from the Registry on payment of usual charges.
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2023 (7) TMI 1545
Direction to second respondent to consider and dispose of Exts.P2 appeal and Ext.P3 stay petition, expeditiously - HELD THAT:- Having considered the pleadings and materials on record and taking note of the fact that Ext.P3 stay petition is pending consideration before the second respondent since 3.6.2023, it is deemed appropriate to dispose of the writ petition - The second respondent is directed to consider and dispose of Ext.P3 stay petition, in accordance with law and as expeditiously as possible, at any rate within a period of three months from the date of receipt of a certified copy of the judgment, after affording the petitioner an opportunity of being heard.
Petition disposed off.
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2023 (7) TMI 1544
Seeking to quash the order passed by the authority under Annexure-7, and to issue direction to the opposite parties to refund of amount paid towards service tax in excess within a stipulated time - HELD THAT:- Having heard learned counsel for the parties and after going through the records, this Court finds that the petitioner is seeking to quash the order dated 21.03.2023 passed by the authority under Annexure-7, which is appealable one and, as such, instead of preferring appeal, the petitioner has approached this Court by filing the present writ petition, which is not maintainable. So far as refund of Rs. 24,32,767/- is concerned, without making appropriate application before the appropriate forum for refund thereof, the petitioner has approached this Court by filing the present writ petition. Thereby, the writ petition is premature one.
Petition disposed off.
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2023 (7) TMI 1543
Seeking issuance of a direction to the respondents to issue “C” form to the petitioner company - HELD THAT:- It is not disputed that the issue involved in the present case is no more res integra and is squarely covered by the ratio of the judgment rendered by this Court in the case of HINDUSTAN ZINC LIMITED, SOUTH WEST MINING LTD., KHETAN BUSINESS CORPORATION PVT. LTD., ARORAS JK NATURAL MARBLES LIMITED VERSUS STATE OF RAJASTHAN THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE, SECRETARIAT, JAIPUR, THE COMMISSIONER, COMMERCIAL TAXES DEPARTMENT, THE COMMERCIAL TAXES OFFICER [2018 (5) TMI 1871 - RAJASTHAN HIGH COURT] where it was held that 'It is held that the respondents are liable to issue `C' Forms in respect of the High Speed Diesel procured for mining purposes through interstate trade. In the event of the petitioners having had to pay any amount on account of the respondents wrongful refusal to issue `C' Forms the petitioners shall be entitled to refund and/or adjustment of the same from the concerned authorities who collected the excess tax.'
It is held that the respondents are liable to issue ‘C’ Forms in respect of the High Speed Diesel procured for mining purposes through interstate trade. In the event of the petitioner having had to pay any amount on account of the respondents wrongful refusal to issue `C' Forms, the petitioner shall be entitled to refund and/or adjustment of the same from the concerned authorities who collected the excess tax - petition allowed.
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2023 (7) TMI 1542
Appeal preferred by the writ petitioner being the consignor was dismissed - HELD THAT:- Having seen the provisions as made under Section 107(1) this Court concurs with the finding of the coordinate Bench as contained in the order dated 3rd November, 2022. Therefore it is found that the finding made by the Appellate Authority as contained in the order dated 3rd January, 2022 is not sustainable in view of Section 107(1) of the said Act of 2017. Accordingly, the order of the Appellate Authority dated 3rd January, 2022 stands set aside.
Petition disposed off.
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2023 (7) TMI 1541
Maintainability of petition - availability of alternative remedy - entitlement to benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the B.G.S.T Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112 - HELD THAT:- The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office.
Subject to deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act. The petitioner cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed.
Petiiton disposed off.
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2023 (7) TMI 1540
Reimbursement of the amount of Goods and Services Tax (GST) leviable upon the petitioner @ 12% after adjusting the tax benefit of pre-GST regime which is already embedded in respect of work awarded to the petitioner - HELD THAT:- In view of the limited prayer made by the petitioner in this writ application, the same stands disposed of with a liberty to the petitioner to file a fresh representation giving in details his claim before the respondent No. 3 within a period of three weeks and if such representation is preferred, the respondent No. 3 shall consider it and pass a reasoned and speaking order within a period of four weeks from the date of submission of the representation.
Application disposed off.
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2023 (7) TMI 1539
Disallowance of expenditure towards employees contribution to ESIC/PF u/s 36(1)(va) -Timing of Salary Disbursement and Due Date Determination - HELD THAT:- The issue towards taxability of belated employees’ contribution to PF/ESIC is no longer res integra in the light of the judgment of Hon’ble Supreme Court in the case of Checkmate Services [2022 (10) TMI 617 - SUPREME COURT] thus no merit in the case of the assessee for impermissibility of such adjustment u/s 143(1) of the Act.
Determination of due date - Month during which the disbursement of salary is actually made would be relevant for the purposes of determination of due date of deposit under the respective statute. The accrual of liability towards payment of salary without actual disbursement would not fasten obligation for deposits of employees contribution in the labour Acts per se. as observed by the co-ordinate bench in Kanoi Paper and Industries Ltd.[2001 (5) TMI 139 - ITAT CALCUTTA-E] - This aspect has not been found to be examined by the AO or CIT(A). Hence without expressing any opinion on merits on this aspect, we deem it expedient to restore the matter to the file of designated AO. It shall be open to the assessee to place factual matrix before the AO and take such plea for evaluation of the AO. The AO shall examine this aspect and fresh order in accordance with law after giving proper opportunity.
AO shall thus recompute the amount of disallowance u/s 36(i)(va) if any, on the above basis, in accordance with law. Assessee shall be entitled to appropriate relevant u/s 36(i)(va) where it is found that deposits have been made towards PF/ESIC within the due date from the close of month of actual disbursement of salary/wages - Appeal of the assessee is allowed ex-parte for statistical purposes.
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2023 (7) TMI 1538
Delayed contributions towards PF & ESI - additions made under the umbrella of S. 143(1) - grant of deduction under general provisions for deduction of expenditure u/s 37 - HELD THAT:- No merit in such plea that the belated deposit of employees contributions to PF/ESIC governed u/s 36(1)(va) is also simultaneously amenable to deduction under Section 37(1) of the Act. In terms of the provision, Section 37(1) permits deduction of expenditure which is not in the nature of expenditure prescribed in Sections 30 to 36 of the Act and also not being in the nature of capital expenditure or personal expenses of the assessee. Thus, in view of such mandate of law, the deduction of expenditure under the general clause of Section 37(1) would not extend to expenditure specially covered within the ambit of Section 36(1)(va) of the Act.
The Hon’ble Supreme Court in the case of Checkmate Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] itself explains this position - Such view also draws support from the observations made in recent judgment in the case of Pr.CIT vs. Khyati Realtors (P) Ltd. [2022 (8) TMI 1141 - SUPREME COURT]. The alternate plea is thus without any merit.
Methodology of calculation of default under the relevant PF/ESIC Act - as contented the month during which the disbursement of salary is actually made would be relevant for the purposes of determination of due date of deposit under the respective statute - The accrual of liability towards payment of salary without actual disbursement would not fasten obligation for deposits of employees contribution in the labour Acts per se. as observed in Kanoi Paper and Industries Ltd. [2001 (5) TMI 139 - ITAT CALCUTTA-E].
This aspect has not been found to be examined by the Assessing Officer or CIT(A). Hence without expressing any opinion on merits on this aspect, we deem it expedient to restore the matter to the file of designated AO.
Therefore in view of foregoing discussion and observations the intimations u/s. 143(1) of the Act for AY 2019-20 is set aside and the issue of allowability of employees contribution to ESIC & PF is restored to the file of Assessing Officer for a fresh adjudication after allowing due opportunity of hearing to the assessee by considering the explanation and factual matrix of the issue and factual contentions of assessee, without being influence with the earlier intimation and first appellate order.
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2023 (7) TMI 1537
Locus standi to challenge the order of the Competition Commission of India (CCI) - SCN to be issued to the parties to combination, i.e., both acquirer and the target entity or word ‘parties’ occurring in Section 29(1) has to be read singularly - non-issuance of Show Cause Notice to HNG vitiates the order of approval granted by the Commission under Section 31, sub-section (1) or not - combination is likely to cause an appreciable adverse effect on competition by the CCI under Section 29, sub-section (1) or not - process as contemplated under Section 29, sub- section (2) having not been completed by the CCI before passing the order, the order passed by the CCI is against the procedure prescribed under Section 29 and deserved to be set aside - obligation to direct the parties to publish details of the combination - modifications suggested by Respondent No.2 in its reply to Show Cause Notice, adequately addressed the AAEC as expressed in the Show Cause Notice under Section 29, sub- section (1) - non-application of mind - violation of principles of natural justice.
Whether the Appellant(s) have locus to challenge the order of the Competition Commission of India dated 15.03.2023 within the meaning of Section 53B of the Competition Act, 2002? - HELD THAT:- In the Judgment of the Hon’ble Supreme Court in Samir Aggarwal [2020 (12) TMI 621 - SUPREME COURT] where Hon’ble Supreme Court was considering the expression ‘person aggrieved’ in context of the Competition Act it was categorically held by Hon’ble Supreme Court that the expression person aggrieved has to be understood widely and not be constructed narrowly.
The present is a case where Appellants are challenging the order passed by the Commission approving the combination of two biggest market players in container glass industry. It is contended in the Appeal that approval of the combination has been done in breach of the procedure prescribed in the Competition Act. We have noticed the pleading in C.A. (AT) No. 7/2023 where it is specifically pleaded that Appellant is also a body of micro and small manufacturers of glass based in UP which represent the interest of MSME Glass Manufacturer. The Appellant in the Appeal pleads and has enumerated various consequences of combination of two largest players in market. The Appellant expresses apprehension and filed objection before the CCI even before the approval of the combination and the Commission vide its letter dated 23.02.2023 has noted the concern raised by the Appellant and Appellant was communicated that their concerns shall be noted at the relevant time - the objection of the Respondents that none of the Appellants have locus to file the Appeal is rejected.
Whether Section 29, sub-section (1) contemplates that a Show Cause Notice to be issued to the parties to combination, i.e., both acquirer and the target entity or word ‘parties’ occurring in Section 29(1) has to be read singularly? - HELD THAT:- There can be no quarrel to the provision of General Clauses Act that words in singular includes plural and vice versa but when we look into the specific purpose and object which is delineated by Section 29(1), in show cause notice to both the parties, we cannot agree with the submission of the CCI that parties in the present case shall only be the AGI who has given notice under Section 6(2). There can be no doubt that Respondent No. 2-AGI who has given notice under Section 6(2) is included within the definition of parties. The show cause notice specifically required to be given to both of them. The statute clearly contemplates issuance of show cause notice to both the parties of the combination - Section 29(1) of the Act, contemplates that show cause notice has to be issued to both parties to the combination i.e. acquirer and target entity.
Whether non-issuance of Show Cause Notice to HNG vitiates the order of approval granted by the Commission under Section 31, sub-section (1)? - HELD THAT:- In the facts of the present case, especially that Respondent No. 3 is in insolvency and the Resolution Professional himself has placed proposal for acquisition of Respondent No. 2 which has been approved by the Committee of Creditors and all details and information have been given by Respondent No. 2 in its notice under Section 6(2) of Competition Act which relate both to Respondent No. 2 and Respondent No. 3, non-issuance of notice to target entity i.e. Respondent No. 3 is not to ipso facto vitiate the order of the Commission when Respondent No. 3 has neither any objection nor grievance regarding non-service of notice to Respondent No. 3 and information regarding Respondent No. 3 are all in public domain which has been used by Respondent No. 2 in submitting the notice. By mere non-issuance of notice to Respondent No. 3, the proceedings before the CCI need not be annulled.
Whether after formation of prima-facie opinion that combination is likely to cause an appreciable adverse effect on competition by the CCI under Section 29, sub-section (1), there was no occasion to form again a prima facie opinion under Section 29(2) after receipt of response to the Show Cause Notice and the CCI was required to complete the further process under Section 29(2) including direction to the parties to the combination to publish details of combination? - Whether the process as contemplated under Section 29, sub- section (2) having not been completed by the CCI before passing the order dated 15.03.2023, the order passed by the CCI is against the procedure prescribed under Section 29 and deserved to be set aside? - Whether inspite of Respondent No.2 along with response to Show Cause Notice having offered modification to address the prima facie concern expressed in the said Show Cause Notice as per Regulation 25 (1) (a) of 2011 Regulations, the CCI was obliged to direct the parties to publish details of the combination? - HELD THAT:- The bone of contention of the parties is as to whether after formation of prima facie opinion under Section 29(1), whether there was any requirement of formation of prima facie opinion at the second time under sub-section (2) of Section 29. Whereas the Appellant(s) pleads that there is no requirement of formation of prima facie opinion at the second time and when notice under Section 29, sub-section (1) has been issued, even after response to the notice, the Commission is required to direct the parties to the combination to publish the details of the combination. The Appellants’ contention is that Section 29, sub-section (2), insofar as it directs for publishing the details of the combination having not been complied, the statutory procedure has not been complied by the Commission, resulting in vitiation of the order approving the combination dated 15.03.2023. The contention of the CCI and other Respondents is that formation of prima facie opinion is required at the second stage as per Section 29 sub-section (2), when response is received to the notice and the requirement of publication of details of the combination comes into play only when prima facie opinion is formed at the second time.
The plain reading of Section 29, sub-section (2) indicates that the Commission, if it is prima facie of the opinion that combination is likely to have an appreciable adverse effect on competition, it shall, within seven working days from the date of receipt of the response of the parties to the combination, or the receipt of the report from Director General called under sub-section (1A), whichever is later, direct the parties to the said combination to publish details of the combination - The legislative intent is clear by sub-section (2) of Section 29 that there may be cases where the Commission is satisfied after response of the notice or the report of the Director General that there is no appreciable adverse effect on competition, it may decide not to proceed further under Section 29, sub-section (2) and approve the combination. The submission of the Appellant(s) that prima facie opinion at the second stage is not required to be formed does not commend.
As per the statutory provisions contained in Section 29 and the Regulations 2011, after receipt of the response to show-cause notice, the Commission has to form prima facie opinion at the second stage as required by Section 29, sub-section (2) and in cases where prima facie opinion at the second stage under Section 29, sub-section (2) has not been formed and the Commission is satisfied that the response received in the modification, if any, submitted by the Party does not meet the requirements of law, the Commission directed publication of details of combination in such cases - the Commission proceeded to approve the combination by following the statutory procedure prescribed under Section 29 as well as Regulations 2011. Further, in the facts of the present case, under sub-section (2) of Section 29, the publication of details of combination was not required to be directed, since at the second stage, the Commission did not form any prima facie opinion of AAEC - the Commission had duly considered the modification submitted by AGI in response to the show-cause notice and after accepting the modification, proceeded to approve the combination under Section 31, sub-section (1).
Whether order of the Commission dated 15.3.2023 can be said to have been passed in violation of principles of natural justice since the objections filed by Appellant the U.P. Glass Manufacturers Syndicate even after the order dated 22.02.2023 were not duly considered? - HELD THAT:- The principles of natural justice are generally to be followed when a decision is taken, which has civil consequence on any person or entity. The Competition Act, 2002 and the Regulations framed thereunder, specially Combination Regulations 2011 provides a detailed procedure and manner in which participation of others including Members of the pubic and other parties have to be allowed - The right of participation of public in general and other entities arises when under Section 29, sub-section (2) of the Act, the Commission directed the parties to the combination to publish the details of the combination within seven days from of such direction, for bringing the combination to the knowledge or information of the public and persons affected or likely to be affected. The stage for filing any objection or giving any information by public in general including the Appellant – UPGMS can arise only when details of the combination are published under Section 29, sub-section (2). In the present case, stage of direction to publish details of combination had not arisen, since there was no prima facie opinion formed at the second stage under Section 29, sub- section (2) - The right to third parties to submit objections arises when the Commission issues direction to the parties to publish the details of the proposed combination, which stage never arose in the present case - in the procedure adopted by the Commission in inquiring the notice under Section 6, sub-section (2), there is no violation of principles of natural justice, which can be attributed to the Commission.
Conclusion - i) The appellants have locus standi to challenge the CCI's order, as the term "aggrieved person" is broadly interpreted in the context of the Competition Act. ii) The CCI should have issued the show-cause notice to both the acquirer and the target entity, as required by Section 29(1). iii) The non-issuance of notice to HNG did not vitiate the CCI's order, given the insolvency context and lack of objection from the Resolution Professional. iv) The CCI's process was compliant with the statutory procedure, and the acceptance of modifications addressed AAEC concerns, negating the need for a second prima facie opinion and publication of details. v) The CCI's process did not violate principles of natural justice, as the procedural framework did not require public participation at the stage reached.
Appeal dismissed.
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2023 (7) TMI 1536
Entertainability of petition - alternative remedy of appeal - Second Appellate Tribunal has not yet been constituted - contravention to sub-sections (1) & (4) of Section 107 of the GST Act - HELD THAT:- Since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd appellate tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand with in a period of fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition.
Application disposed off.
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2023 (7) TMI 1535
Maintainability of petition - Second Appellate Tribunal has not yet been constituted - demand relating to penalty and fine - HELD THAT:- Perusal of order dated 7th June, 2023, it is found that challenge before the first appellate authority against the demand is confined to penalty & fine.
Considering the submissions made by learned counsel for the Petitioner that the Petitioner would prefer appeal before the appellate Tribunal after it is constituted, as an interim measure, it is directed that no coercive action shall be taken against the Petitioner during the pendency of the writ petition so far as the impugned demand is concerned.
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2023 (7) TMI 1534
Levy of service tax - royalty paid by the appellant to the Government of India - whether payment of royalty on mining of minerals i.e., petroleum or natural gas to the GoI-MoP&G can be considered as service or not, and whether it attracts payment of service tax? - HELD THAT:- This issue has arisen initially on the understanding of the Revenue on the basis of Circular No.179/5/2014-ST dated 24.09.2014, issued clarifying about the levy of service tax, inter alia, on taxable services received by a Joint Venture from its members or third party. It was stated therein that 'In the context of a JV project, cash calls are capital contributions made by the members of JV to the JV. If cash calls are merely a transaction in money, they are excluded from the definition of service provided in section 65B(44) of the Finance Act,1994. Whether a 'cash call' is 'merely... a transaction in money' [in terms of section 65B(44) of the Finance Act, 1994] and hence not in the nature of consideration for taxable service, would depend on the terms of the Joint Venture Agreement, which may vary from case to case. Payments made out of cash calls pooled by a JV, towards taxable services received from a member or a third party is in the nature of consideration and hence attracts service tax.'
From the above clarification issued by the Ministry of Finance, CBIC, which equally apply to the service tax in pre-GST regime, it is found that on the basis of this clarification alone the impugned order is not sustainable.
This Tribunal in the case of B.G. EXPLORATION & PRODUCTION INDIA LTD. VERSUS COMMISSIONER OF CGST & CEX., NAVI MUMBAI [2021 (10) TMI 306 - CESTAT MUMBAI] has considered a similar arrangement under another PSC between the Government of India and B.G. Exploration and Production India Ltd., ONGC and the appellant. We find that the this Tribunal had after taking note of the policy underlying the execution of the PSCs as also the terms and conditions of the same, concluded that the Government of India with the Appellant, RIL and ONGC had entered into a joint venture agreement, where under each co-venturer had its own set of obligations and the responsibility discharged by each of the co-venturers towards the venture which was not by way of any service rendered to the joint venture, but in their own interest in furtherance of the common objective of the joint venture. Thus it was held by the Tribunal that service tax liability, could not have been fastened upon the Appellant.
It is also found that in the appellant’s own case in M/S RELIANCE INDUSTRIES LIMITED VERSUS COMMISSIONER OF CGST & CENTRAL EXCISE, BELAPUR [2023 (4) TMI 921 - CESTAT MUMBAI] in respect of demand of service tax towards certain expenditure incurred by the appellants as ‘operator’ under the Joint Operating Agreement under the PSC, the issue had been decided in favour of the appellants.
Conclusion - The demand of service tax on royalty paid by the appellant to the Government of India do not sustain.
There are no merits in the impugned order passed by the learned Commissioner (Appeals) - appeal allowed.
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2023 (7) TMI 1533
Seeking direction to opposite party no.2 to unblock the Electronic Credit Ledger of the petitioner and to withdraw/recall all proceedings thereunder - HELD THAT:- When this Court made a querry as to whether the petitioner has taken any step for revocation of cancellation of its registration or not, no reply was forthcoming from the learned counsel for the petitioner. Therefore, the question of deposit of tax does not arise.
This Court is not inclined to entertain this writ petition and the same is dismissed.
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9911796707
