|
Advanced Search Options
Case Laws
Showing 201 to 220 of 2015 Records
-
2018 (12) TMI 1817
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and debt and dispute or not - HELD THAT:- The Corporate Debtor has taken time for reconciliation and signing the reconciliation statement but not having completed it the demand notice was issued by the Operational Creditor under section 8(1), which was not denied by the Corporate debtor.
In VALLIAMMA CHAMPAKA PILLAI VERSUS. SIVATHANU PILLAI AND ORS. [1979 (8) TMI 210 - SUPREME COURT], the Hon’ble Supreme Court held that under section 18 of Limitation Act, one of the essential requirements for a valid ‘acknowledgement’ under Section 18, is that the writing concerned must contain an admission of a subsisting liability. A mere admission of past liability is not sufficient to constitute such an ‘acknowledgement’.
In the present case, the ‘Fernas Construction India Pvt. Ltd.’ (Corporate Debtor) in its job completion certificate has shown the actual value of work executed by the Operational Creditor. In reply to the demand the Corporate debtor intimated the Operational creditor that all the bills along with supporting documents are in process. It has not disputed the claim - Corporate Debtor also requested the Operational creditor to depute personnel for reconcile purpose and to sign jointly reconcile statement.
Till date the ‘Fernas Construction India Pvt. Ltd.’ (Corporate debtor) has not completed reconciliation of all the bills and not signed reconcile statement and kept matter pending. The matter having kept open by the Corporate Debtor, there is a continuous cause of action in absence of completion of reconcile statement jointly signed by the parties. Substantial liability having been already accepted by the Corporate Debtor in writing and intention of continuing with relationship in the record, it is held that the Corporate Debtor has treated and acknowledged the liability consciously and admitted liability to pay on reconciliation.
The claim of the Operational Creditor is not barred by limitation, there being continuous cause of action and the Corporate Debtor cannot take plea that there is no debt payable to Operational Creditor in law - Appeal dismissed.
-
2018 (12) TMI 1816
Oppression and Mismanagement - Maintainability of petition - appellate remedy available to the petitioners - section 61 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- This Bench has considered a similar question arising under the Companies Act, 1956, proceedings arising out of an application under Section 241 and 244 of the Companies Act dealing with oppression and mis-management in CRP.No.3739 of 2016 [2019 (9) TMI 535 - MADRAS HIGH COURT]. In that case against an interim order passed by the National Company Law Tribunal, Revision Petition under Article 227 of the Constitution of India was filed in this Court. In that case, like in the present case a preliminary objection was taken regarding the maintainability of the Revision Petition because of the Appellate remedy provided under Section 421 of the Companies Act.
Petition dismissed as not maintainable.
-
2018 (12) TMI 1815
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make payment of dues - amount due and outstanding or not - HELD THAT:- In the present case the consortium banks had sanctioned and disbursed the loan amount recoverable with applicable interest by entering into loan agreements with the corporate debtor. The corporate debtor had borrowed the credit facility against payment of interest as agreed between the parties. The loan was disbursed against the consideration for time value of money with a clear commercial effect of borrowing. Moreover the debt claimed in the present application includes both the component of outstanding principal and interest. In that view of the matter not only the present claim comes within the purview of 'Financial Debt' but also the applicant can clearly be termed as 'Financial Creditor' so as to prefer the present application under Section 7 of the Code.
An application of financial creditor under Section 7 of the Code is acceptable so long as the debt is proved to be due and there has been occurrence of existence of default. It is reiterated that the material on record clearly goes to show that respondent had availed the loan facilities and has committed default in repayment of the huge outstanding loan amount - the present application is complete in all respect and the applicant financial creditors are entitled to claim their outstanding financial debts from the corporate debtor and that there has been default in payment of the financial debt.
In terms of Section 7 (5) (a) of the Code, the present application is admitted - Application admitted - moratorium declared.
-
2018 (12) TMI 1814
Condonation of delay in filing written statement - Principles of natural justice - HELD THAT:- The learned Tribunal has not considered various aspects of the matter and has rejected the application for taking on record the written statement without appreciating the facts in its right perspective. That being so, it is a fit case where the matter should be remanded back to the respondent Tribunal to decide the application for taking the written statement on record afresh in accordance with law.
Petition allowed by way of remand.
-
2018 (12) TMI 1813
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- The corporate debtor in the instant case did not turn up to contest the petition. The applicant has produced all the required documents. The existence of default also stands proved. The applicant here, in this case, succeeds in proving that it has complied with all the requirements to be meted out under section 7(3) of the I & B Code, 2016. Therefore, the application is liable to be allowed.
Application admitted - moratorium declared.
-
2018 (12) TMI 1812
Penalty u/s 271(1)(c) - defective notice - non specification of charge - vague notice and vague findings giving in the penalty order - claiming wrong exemption u/s 54 - HELD THAT:- In the instant case, we find that the notice initiating the penalty proceedings is uncertain where the AO uses the expression “concealment particulars of income or furnished inaccurate particulars of income”. During the penalty proceedings, he has given a decisive and clear finding as reflected in the penalty order that the assessee is guilty of furnishing inaccurate of particulars of income' as the assessee, in its original computation has deliberately avoided disclosing true particulars and furnished inaccurate particulars by claiming wrong exemption u/s 54 which was as such not available to the assessee. Therefore, following the legal proposition as discussed above, we are unable to accede to the aforesaid contention of the ld AR.
Regarding the contentions of the ld AR on merits, we have gone through the computation of income so filed by the assessee along with the original return of income wherein the assessee has shown long term capital gains of ₹ 9,01,537 and has claimed exemption under section 54. The computation so filed is silent on the nature and specifics of the property so purchased by the assessee. There is thus clearly lack of disclosure as far as nature of property so purchased by the assessee. On examination thereof, the AO has found that the assessee has sold an immoveable property in form of a shop and has purchased another shop and which is not eligible for exemption under section 54 of the Act. It is thus not a case where there is adequate disclosure of nature of property in the return of income and it is only the legal claim so made by the assessee u/s 54 on appreciation of such facts which has been denied by the AO. Therefore, it is clear case of furnishing inaccurate particulars of income and we see no infirmity in the findings of the AO in this regard.
Regarding the contention of the ld AR that the assessee has suomoto revised the computation of income and even paid the taxes during the course of assessment proceedings, we are unable to accede to the said contentions of the ld AR - Appeal of the assessee is dismissed.
-
2018 (12) TMI 1811
Book profit computation u/s 115JB - Entitlement to reduce net profit by the provision for NPA/doubtful debts written back while computing book profit - HELD THAT:- We note that the summary of the provisions made by the assessee and the provision written back in the profit and loss account abundantly explains that assessee is entitled to reduce the profit by the bad debt . It is not a provision, but it is a bad debts actually incurred by the assessee.
Assessee made provision for NPA/doubtful debts in the Assessment Years 2003-04& 2004-05. These provisions were added back to the total income of the assessee in normal computation as well as computation u/s 115JB of the Act in the respective years. During the Assessment Year 2008-09, the assessee has actually written back bad debts which he has debited to the profit and loss account as an expenditure and excluded from the computation of the income. Based on the factual position we note that assessee had offered these provisions for taxation in earlier years, hence in the A.Y.2008-09 the assessee is entitled to claim the bad debts written off .Therefore, we direct the Assessing Officer to allow the claim of the assessee in normal computation as well as computation u/s 115JB of the Act.
Disallowance of proportionate interest on borrowed loans, given as interest free loans to other parties - A.O noted that the assessee company borrowed funds by way of unsecured loan on which interest was claimed - HELD THAT:- As held in the case of CIT v. Hotel Savera [1997 (11) TMI 37 - MADRAS HIGH COURT] that for making the disallowance of interest or part of it, a finding that the borrowed fund was used for non-business purpose is essential. Since in the case of the assessee, the Assessing Officer has not given such finding and it is also not his case that the borrowed fund has been given to the parties named in the assessment order.
AO was not justified in disputing the business necessity of the loan without bringing on record any material to support his bald statement. It is not the case of the Assessing Officer that the funds borrowed on which interest was paid was utilized for non business purpose or for giving the loan to the parties mentioned in the assessment order.That being so, we decline to interfere with the order of Id. C.I T.(A) deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed.
Disallowance of bad debt - assessee company has partly written off bad debt in the accounting year ending on 31.03.2006. No write off was made in preceding previous year ending on 31.03.2007 and again in instalments, the assessee wrote off a huge amount of ₹ 3,80,00,000/- during the year ended 31.03.2008 - HELD THAT:- We note that the A.O. in the assessment order has observed that the assessee has written off friendly loan advanced to Elbee Services Ltd. The A.O further observed that no interest was charged on this advance from 01.04.2004 onwards and the assessee has written off ₹ 1,97,12,371/- out of this loan in the F.Y 2005-06 and has written off amount of ₹ 3,80,00,000/- in this year. As per the A.O. since the assessee has not brought any evidence to substantiate its claim that the loan has become irrecoverable in this year or the assessee has taken legal action for the recovery of the loan hence this bad debt which is the part of the tax planning and is not allowable.
This loan was given during the course of assessee’s money lending business and interest has been charged for the year ending 31.03.1998 to 31.03.2003. The interest charged on the loan was offered as business income in earlier years by the assessee. Since the assessee has written off loan in its books of accounts hence the write off of ₹ 3,80,00,000/- is allowable as bad debt in view of provision of section 36(1)(viii) of the Income Tax Act. We note that the provisions of section 36(1)(vii) has been amended w.e.f. 1.4.1989 and as per the amended section, as held by Hon’ble Supreme Court in the case of T.R.F Ltd. v CIT [2010 (2) TMI 211 - SUPREME COURT] that the assessee need not to establish that the debt has become irrecoverable in the year in which it is written off. The only condition is that the debt should be written off in the books of accounts. Since in the case of the assessee it is not in dispute that the assessee has written off the debt of ₹ 3,80,00,000/- which relates to its money lending business, in its books of accounts therefore, we are of the view that this write off of bad debt of ₹ 3,80,00,000/- is an allowable deduction. That being so, we decline to interfere in the order passed by the ld. CIT(A), his order on this issue is hereby upheld and grounds of appeal raised by the Revenue is dismissed.
Long term capital loss and short term capital computation - admission of additional evidence - HELD THAT:- We note that before the ld CIT(A), the assessee had filed copy of purchase note and sale bill etc. of shares of M/s Galaxy Entertainment Corp. Ltd. These documents were sent by the ld CIT(A), to the AO, during the appellate proceedings. The AO in his remand report had objected to the admission of these documents. The ld CIT(A) admitted these documents stating that purpose of assessment proceedings is to assess the correct tax liability of the assessee in accordance with law.[ National Thermal Power Corporation Vs.CIT [1996 (12) TMI 7 - SUPREME COURT]. The ld CIT(A), considering the facts of the assessee`s case, directed the assessing officer to work out the long term capital loss and short term capital loss. We are of the view that there is no infirmity in the order of ld CIT(A) in directing the AO to compute the long term/short term capital loss. That being so, we decline to interfere in the order passed by the ld. CIT(A), his order on this issue is hereby upheld and grounds of appeal raised by the Revenue is dismissed.
-
2018 (12) TMI 1810
Penalty proceedings u/s 271(1)(c) - addition u/s 56(vi) - gift received on marriage anniversary - HELD THAT:- AO has not recorded valid satisfaction in order to initiate the penalty proceedings u/s 271(1)(c).
Perusal of assessment order shows that the Assessing Officer has merely recorded that “action u/s 271(1)(c) is initiated on this score”. From the entire assessment order it is not discernible as to under which of the limb of Section 271(1)(c) the penalty is being initiated. Even in the penalty order the Assessing Officer has failed to point out “as to whether the penalty has been levied for concealment of particular of income or for furnishing inaccurate particulars of income” by the assessee.
It is settled principle of law that in order to initiate the penalty proceedings the Assessing Officer is required to make the assessee aware as to whether there is a concealment of income or furnishing of inaccurate particulars of income on her part, which is entirely missing in this case.
In a case cited as CIT vs. Manjunatha Cotton and Ginning Factory & Ors. [2013 (7) TMI 620 - KARNATAKA HIGH COURT] confirmed by the Hon’ble Supreme Court, held that when the assessee has not been specifically charged as to whether there is concealment of income or furnishing inaccurate particulars of income on her part, the penalty u/s 271(1)(c) is not sustainable.
Merely making inaccurate claim does not amount to furnishing of inaccurate particulars. When the assessee has categorically claimed that the amount of ₹ 2,12,000/- has been received by her as a gift on her marriage anniversary, which has been disallowed by the AO but subsequently partly accepted by Ld. CIT(A) who has given relief to the extent of ₹ 1,38,000/-, it cannot be said that it is furnishing of inaccurate particulars of income. Reliance in this regard is placed on decision rendered by Hon’ble Apex Court cited as Reliance Petro Pvt. Ltd. [2010 (3) TMI 80 - SUPREME COURT]
Following the law laid down by Hon'ble High Court, we are of the considered view that when the assessee has not been specifically made aware of the charges leveled against her as to whether there is a concealment of income or furnishing of inaccurate particulars of income on her part, the penalty u/s 271(1)(c) of the Act is not sustainable. - Decided in favour of assessee.
-
2018 (12) TMI 1809
Maintainability of application - initiation of CIRP - Whether there are sufficient ground to set aside ex-parte order passed against the Corporate Debtor? - HELD THAT:- To admit any corporate person into Corporate Insolvency Resolution Process is somewhat harsh order. By virtue of such order, the business of Corporate Debtor is to be taken away from his possession and to be handed over to Resolution Professional and thereafter to propose Resolution Applicant. As far as possible, this Adjudicating Authority does not like to pass such order ex-parte. But if inspite of proper notice, the Corporate Debtor choose to remain absent then this Adjudicating Authority leaves with no option but to pass CIRP order ex-parte. This has exactly happened in this case.
The order of admission of Corporate Debtor in CIRP has serious consequences. In this case, Advocate of Corporate Debtor did not appear in the matter and hence, this Adjudicating Authority passed order ex-parte. In fact it was duty of the Advocate of Corporate Debtor to inform this Adjudicating Authority that she has not been instructed by the Corporate Debtor to appear on their behalf. In such a situation, this Adjudicating Authority would have issued notice afresh to the Corporate Debtor - for the fault of Advocate, the Corporate Debtor should not suffer and hence,the exparte passed against the Corporate Debtor is set aside on some terms.
The Corporate Debtor directed to deposit sum of ₹ 1,00,000/- in account of Deputy Registrar of NCLT, Kolkata Bench within 7 days and produce receipt thereof because it was also duty of director/ officer of corporate debtor to keep the track of the matter but they appeared to have ignored duty - application disposed off.
-
2018 (12) TMI 1808
Conversion of arrest warrants into bailable warrants - Offences punishable under Sections 3 and 4 of Prevention of Money Laundering Act, 2002 - It is urged that in a complaint case petitioner at first instance should not have been summoned through arrest warrant.
HELD THAT:- The arrest warrants issued against the petitioner is converted as bailable warrants - Petition disposed off.
-
2018 (12) TMI 1807
Approval of Resolution plan - CIRP Process - time limitation to complete the entire process - HELD THAT:- The only one Resolution Plan submitted before the consideration of the committee of Creditors has not been seriously dealt with in the time frame. If the COC and RP would have taken adequate care to have negotiation with the resolution applicant day by day, bearing in mind the very object of the Code which is Resolution and maximisation of value, chances of success in having a resolution in the case in hand was not too remote. The laxity in dealing with negotiation with the resolution applicant for having a resolution is visible from the mode of discussion process entertained by the COC in the case in hand. Thereby, the chance of revival has been blocked.
The period of CIRP cannot be extended for any reasons advanced on the side of the Ld. RP as well as on the side of the Resolution Applicant, as Section 12 mandates, no further extension beyond 270 days is to be granted in the like case - Having failed in obtaining the Resolution Plan within the mandatory period of 270 days and since the Committee of Creditors has decided to have liquidation of the Corporate debtor, I have no other alternative than to pass an order requiring the Corporate Debtor to be liquidated in the manner as laid down in the Chapter Ill read with Section 33 of the I&B code, 2016.
Application dismissed.
-
2018 (12) TMI 1806
Exemption u/s 10A - other income as eligible for exemption u/s 10A - HELD THAT:- As decided in Hewlett Packard Global Soft Ltd. [2017 (11) TMI 205 - KARNATAKA HIGH COURT] assessee was entitled to 100% exemption or deduction under Section 10-A of the Act in respect of the interest income earned by it on the deposits made by it with the Banks in the ordinary course of its business and also interest earned by it from the staff loans and such interest income would not be taxable as 'Income from other Sources' under Section 56 of the Act. The incidental activity of parking of Surplus Funds with the Banks or advancing of staff loans by such special category of assessee covered under Section 10-A or 10-B of the Act is integral part of their export business activity and a business decision taken in view of the commercial expediency and the interest income earned incidentally cannot be de-linked from its profits and gains derived by the Undertaking engaged in the export of Articles as envisaged under Section 10-A or Section 10-B of the Act and cannot be taxed separately under Section 56 of the Act.
Treating export sale proceeds realized subsequently as part of current year export turnover by CIT-A - HELD THAT:- The finding of the ld. CIT(A) is in accordance with law laid down by the jurisdictional High Court in the case of Wipro Ltd. vs. DCIT [2015 (10) TMI 826 - KARNATAKA HIGH COURT] and nothing was brought to our notice that the judgment of the Hon’ble High Court in the case of Wipro Ltd. (supra) was reversed by the Hon’ble Supreme Court. Accordingly, we do not find any merit in the grounds of appeal filed by the revenue. This ground of appeal is dismissed.
Not to set off loss of another eligible 10A unit against the profits of eligible 10A unit for the purpose of computing exemption u/s 10A - HELD THAT:- The decision of the ld. CIT(A) is in accordance with decision of the Hon’ble Supreme Court in the case of CIT vs. Yokogawa India Ltd. [2016 (12) TMI 881 - SUPREME COURT] held that from a reading of the relevant provisions of Section 10A it is more than clear to us that the deductions contemplated therein is qua the eligible undertaking of an assessee standing on its own and without reference to the other eligible or non-eligible units or undertakings of the assessee. The benefit of deduction is given by the Act to the individual undertaking and resultantly flows to the assessee.
Though Section 10A, as amended, is a provision for deduction, the stage of deduction would be while computing the gross total income of the eligible undertaking under Chapter IV of the Act and not at the stage of computation of the total income under Chapter VI.
Reduce telecommunication and insurance expenditure incurred in foreign currency for export of software from both export turnover as well as total turnover - HELD THAT:- As decided in HCL TECHNOLOGIES LTD. [2018 (5) TMI 357 - SUPREME COURT] when the object of the formula is to arrive at the profit from export business, expenses excluded from export turnover have to be excluded from total turnover also. Otherwise, any other interpretation makes the formula unworkable and absurd. Hence, we are satisfied that such deduction shall be allowed from the total turnover in same proportion as well.
Write back of advances given to customers constitute business income or not? - HELD THAT:- This issue is covered in favour of the assessee-company by the decision of the Hon’ble High Court of Karnataka in the case of Hewlett Packard Global Soft Ltd. [2017 (11) TMI 205 - KARNATAKA HIGH COURT]. The grounds of appeal are allowed.
-
2018 (12) TMI 1805
Difference in issue price of ESOPs partakes the character of share premium and the shortfall is akin to short receipt of premium and hence not an allowable item of expenditure - HELD THAT:- ESOP are in the nature of business expenditure and it takes the characteristic of staff welfare and the shares are issued to the employees to work in the best interest of the assessee. These shares are allotted through SEBI guidelines and expenditure is in the nature of Revenue expenditure and claimed deduction and ld. Authorised Representative supported his arguments with decision of Jurisdictional High Court in the case of CIT vs. PVP Ventures Ltd [2012 (7) TMI 696 - MADRAS HIGH COURT] wherein it held that staff welfare expenditure incurred by the assessee in respect of Employees Staff Option Plan as per SEBI guidelines is an ascertained liability and is allowable as expenditure in computation of income. Considering the jurisdictional High Court decision, we uphold the order of Commissioner of Income Tax (Appeals) and allow the expenditure. The ground of the Revenue is dismissed.
Unearned income - AR contention that unearned income as per sec. 145(2) in respect of any class of income to be disclosed and notified in the Central Government by Official Gazette - HELD THAT:- Revenue earned by the assessee from software and consultancy services was recognized on delivery of goods / services, that as per the existing scheme, M/s. Satyam Education Services Limited was assigned the responsibility to 'sign off’ on completion of the project in the case of all customers, that the assessee-company was following the AS 9 prescribed by the Institute which was in conformity with the provisions of section 145(2) of the Act. The assessee was regularly following the 'project completion method, which is a recognized method. The completion of each project is determined by 'sign off’. There is nothing on record to show that there was any inconsistency in this regard. The CIT(A) found that the deferred income amounting to ₹ 39,68,208 was carried forward and was duly taken into account in the next assessment year. In the circumstances, therefore, we see no reason to interfere with the conclusions reached by the CIT(A) - CIT(A) has rightly deleted the addition under the head "unearned income”. The mere submission on the part of Revenue that the same has not attained finality is no ground in itself for not placing reliance upon the same.
TDS u/s 195 - disallowance u/s 40(a)(ia) of Networking costs - assessee is in the business of providing digital certificates-based authentication service for website and corporates/individuals and also providing IP / VPN services, for which it has paid the networking costs to the service providers like Bharti Airtel Ltd., BSNL etc. for the usage of internet bandwidth services - HELD THAT:- Transactions in respect of which the impugned payments were made was purely on account of services and there is no transfer of right to use the goods. In the result, it is held that the Assessing Officer was not justified in treating the payment as royalty and invoking the provisions of sec. 195 for both the assessment years. Consequently, the impugned order u/s, 195 r.w.s. 201(1) and 201(1A)
Disallowance u/s 14A - HELD THAT:- Since, the assessee has not earned any exempt income, no disallowance can be made u/s. 14A and hence, we do not find any merit in the grounds of Revenue’s appeal. See M/S. REDINGTON (INDIA) LTD. [2017 (1) TMI 318 - MADRAS HIGH COURT] and M/S. CHETTINAD LOGISTICS PVT. LTD. [2017 (4) TMI 298 - MADRAS HIGH COURT]
Set off of brought forward unabsorbed depreciation for assessment year 2001-02 against the income for assessment year 2010-11 - HELD THAT:- Since the issue is decided by BRITISH MOTOR CAR CO. [2018 (1) TMI 547 - DELHI HIGH COURT] wherein held unabsorbed depreciation that was carried forward up to assessment year 2001-02 would be carried forward to assessment year 2002-03 and become part thereof and it would be governed by provisions of section 32(2) as amended by Finance Act, 2001 and would be available for carry forward and set off against profits and gains of subsequent years without any limit whatsoever - Decided in favour of assessee.
-
2018 (12) TMI 1804
Business Support services or not - certain charges recovered by appellant from customers purportedly for getting the vehicles registered and smart card issued by the statutory authorities as prescribed in the Motor Vehicles Act, 1988 - period between January 2011 to December 2011 - HELD THAT:- Issue decided in the case of WONDER CARS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE I [2016 (1) TMI 738 - CESTAT MUMBAI] where it was held that The findings recorded by the lower authorities are incorrect as the definition of Business Support Services as per section 65(104c) of the Finance Act and Demand is unsustainable and liable to be set aside.
Demand do not sustain - appeal allowed - decided in favor of appellant.
-
2018 (12) TMI 1803
CENVAT Credit - Cenvat credit attributable to the exempted service has been reversed - liability on the part of appellant to pay 6%/8%, in terms of Rule 6(3) of Cenvat Credit Rules, 2004 - HELD THAT:- Considering the submissions of the ld. Counsel that the entire Cenvat credit attributable to the exempted service has been reversed, the demand under Rule 6(3) i.e. 6%/8% of the value of exempted service will prima facie not survive - However, the calculation of Cenvat credit attributable to exempted service has not been verified by the lower authorities.
As per the submission of the ld. Counsel, reversal was shown in the periodical returns filed with the department which has not been seen by the department as the same was not submitted at the time of adjudication.
The matter should go back to the Adjudicating Authority to verify the quantum of Cenvat credit attributable to the exempted service and reversal thereof - appeal allowed by way of remand.
-
2018 (12) TMI 1802
Violation of principles of natural justice - main grievance of petitioner is that the Assessing Officer has concluding the assessment without affording an opportunity of personal hearing - HELD THAT:- Perusal of the materials placed before this court would show that after issuance of the first notice dated 18.01.2016, the petitioner has filed a detailed reply on 14.06.2016, wherein and whereby, they sought for personal hearing. While issuing the second notice styled as final notice dated 17.10.2018, the Assessing Officer has dealt with the reply submitted by the petitioner dated 14.06.2016 and consequently, called upon the petitioner to appear for the personal hearing on 29.10.2018. Therefore, it is evident that the Assessing Officer has given the opportunity of personal hearing to the petitioner only after receipt of the objections raised from them and not before the same.
There is no point in saying that the petitioner should have been given an opportunity of personal hearing in pursuant to the second reply especially, when they have failed to utilise the opportunity given through the notice dated 17.102.018. Therefore, the contention of the petitioner, as if the personal hearing was not given to them, is not sustainable. Since this Court finds that the impugned orders of assessment were passed after following the principles of natural justice, the merits of the assessment touching upon the issues dealt with therein have to be canvassed only before the next fact finding authority.
The writ petitions are disposed of by granting liberty to the petitioner to file the statutory appeal before the concerned appellate authority by complying with all other requirements within a period of two weeks from the date of receipt of a copy of this order.
-
2018 (12) TMI 1801
Levy of ADD - Imports of consignments of “Polished Porcelein Vitrified Floor Tiles” - Department contended that the imported goods cannot be treated as originating from Sri Lanka but rather to be treated to be originating [from] China. Therefore, the benefit of Notification No. 72/2005 is not available to the respondent and that they are however liable to pay anti-dumping duty.
HELD THAT:- The Learned DR for the Department has submitted that there is also an issue of anti-dumping duty in the case as at the relevant time there was anti-dumping duty notification on the Porcelein Tiles imported from China. However, we do not find that issue has neither been discussed in the impugned order which is before us for consideration nor the same is mentioned in the grounds of appeal filed by the Department. The only issue raised in the grounds of appeal by the Department is that the issue clarified that Sri Lankan authorities vide letter dated 22-12-2004 that the supplier do not import raw materials for manufacture of Porcelein Tiles, but they import semi-finished tiles, which has essential character of a finished tile for classification purpose.
In the remand proceedings the Commissioner (Appeals) has observed that the benefit of notification is available to the respondents it appears that, though not explicitly stated the Commissioner (Appeals) held that the Notification No. 72/2005 is very much applicable even if the goods originated in China and that the products did not reach the stage in China whereupon anti-dumping duty could be imposed. As the issue of anti-dumping has not been specifically raised in the grounds of appeal, we are inclined to discuss the issue deeming it to be closed.
Appeal dismissed - decided against Revenue.
-
2018 (12) TMI 1800
Rebate of Service Tax - export of services - case of respondent is that service tax is not leviable on export of services under Section 66B read with Section 66C of the Finance Act, 1994 and any amount collected without authority of law cannot be retained by the Government in terms of Article 265 of the Constitution of India - Section 11B of the Central Excise Act - HELD THAT:- The Commissioner (Appeals) has allowed the respondent’s appeal vide aforesaid OIA by accepting the fact that the respondent was not required to pay any service tax on the exported services and the refund of service tax wrongly paid on the exported services is admissible under Section 11B of the Central Excise Act. This legal postulation that the respondent was not required to pay any service tax on the exported services is not questioned by the applicant also in their revision application. Instead the applicant has only stressed that no rebate of service tax could be granted from 1-7-2012 as no Notification providing for rebate of service tax is available from the said date even when Commissioner (Appeals) has not allowed any rebate of service tax.
The Order-in-Appeal is manifestly relating to refund of service tax and not the rebate of service tax which can be granted only if a Notification issued by Central Government authorizes in respect of export of services. But the applicant has still filed the revision application for the reasons discussed in para (2) by considering the matter relating to rebate of tax and ignoring the truth that the Commissioner has allowed refund of excess service tax paid in this matter under Section 11B of the Central Excise Act. Whereas Section 86(2) of the Finance Act, read with Section 35EE of the Central Excise Act, 1944, unambiguously stipulate that the revision application can be filed before the Central Government against the Order of the Commissioner (Appeals) if the Order relates to grant of rebate of service tax on input or rebate of duty paid on inputs used in providing exported services - But there is no legal provision for filing the revision application against the Order-in-Appeal which is relating to refund of service tax as is in the present case.
The Government does not have any legal authority to deal with the Commissioner (Appeals)’s above referred Order which is clearly relating to refund of service tax and not the rebate of service tax on input services or rebate of duty paid on inputs as is envisaged in aforementioned Section 86(2) of the Finance Act - the Government reject the revision application as non-maintainable due to lack of jurisdiction.
-
2018 (12) TMI 1799
Rebate claim - time limitation - it is contended that Commissioner (Appeals) has erred by holding the rebate claims within limitation period and by not taking into account the Explanations (B) (ec) to Section 11B of the Central Excise Act, 1944 - HELD THAT:- The Government does not have any doubt that respondent had originally filed the rebate claims in time in the months of March & April 2011 and the same were substantially allowed earlier by the Assistant Commissioner and remaining amount was sanctioned subsequently by the Commissioner (Appeals) vide his order dated 24-10-2011. Thus, the net effect of the orders of the Assistant Commissioner dated 29-7-2011 and the Order-in-Appeal dated 24-10-2011 was that all rebate claims filed by the respondent in the months of March & April 2011 were found admissible and accordingly the Assistant Commissioner was bound to sanction the rebate claims of ₹ 6,83,727/- soon after having received the Order-in-Appeal. But he not only failed in complying the Order-in-Appeal but also aggravated the whole matter by issuing the deficiency memo for rejection of their rebate claims on the ground that the respondent had filed rebate claims after more than one year and thereby the rebate claims were hit by time limitation.
The Assistant Commissioner did not have any legal basis for rejection of the respondent’s rebate claims for second time by ignoring the Order-in-Appeal and by invoking above mentioned Explanation in Section 11B which is not relevant in the present context. The rebate claims allowed by the Commissioner (Appeals) clearly related to rebate claims filed by the respondent well in time and the same could not be considered as having arisen out of the Commissioner (Appeals)’s order as is envisaged in Explanation B (ec) in Section 11B. The refund claim covered under the Explanation are apparently those which were not claimed on the basis of existing evidences of excess payment of duty and covers only those claims where excess payment of duty is established subsequently by virtue of the order of the Court or any other appellate authority while settling dispute regarding classification of goods, valuation of the goods or rate of duty etc. for which the refund claim is filed by the claimant later on the basis of such Court’s or appellate authority’s order. But in the instant case the rebate of duty has not arisen due to any such situation and rebate of duties had been claimed on account of export of duty paid goods for which rebate claims had already been filed in time and the Commissioner (Appeals) had restored even the rejected claims. Hence, the respondent was not required to file the rebate claims for ₹ 6,83,627/- again after Commissioner (Appeals) had issued his order in 2011 and the same was sanctionable as per earlier Order-in-Appeal.
The Government does not have any hesitation in saying that the Revision Application is frivolous and not maintainable - revision rejected.
-
2018 (12) TMI 1798
Winding up of respondent company - Sections 433 and 434 of the Companies Act, 1956 - time limitation - It is the case of the petitioner that in course of business transaction, the petitioner company delivered goods as indicated from the invoice cum delivery challan at Annexure B (collectively) to this petition - HELD THAT:- There is no record even remotely suggesting that any complaint as regards quality of the goods was ever raised by the respondent company. The learned counsel for the respondent candidly submitted that the Bank has also taken action under the SARAFAESI Act which is subject matter of appeal before the Debt Recovery Tribunal wherein stay is granted and it was further submitted on behalf of the respondent company that if those proceedings are over, some payment can be made. It was also candidly submitted by the learned counsel for the respondent that on an inquiry made by the Court, temporarily respondent company is not in operation. Even the additional affidavit filed by the petitioner before this Court clearly mentioned that respondent company incurred loss in the year 2012, 2013 and 2014. Considering the date of invoice and the date of filing of this petition and even on the ground of limitation, prima facie present petition is within the time.
Petition admitted.
............
|
9911796707
