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Showing 221 to 240 of 1464 Records
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2021 (10) TMI 1245
Addition on account of lower yield of production compared to industrial average - estimation of income based on average yield across the business @ 89% - HELD THAT:- Whole basis for addition on account of alleged suppression of production in SMS/Furnace division is merely relying upon the conclusion drawn by the predecessor AO in the search assessment of the assessee, which was found to be unsustainable both by the CIT(A) as well as the ITAT in earlier years. We simultaneously note of the fact that the yield percentage of 97% referred by the AO in the assessment year with which comparison has been made does not relate to SMS division as the billets have been mentioned in the table as raw material whereas billets are finished products of SMS division. It appears that AO has proceeded on misconception of facts. Thus, on this point too, the action of the AO is not justifiable.
In the light of the view taken by the co-ordinate bench in the case of assessee [2019 (11) TMI 922 - ITAT RAIPUR], the issue is no longer res integra. It is evident that issue is squarely covered by the decision of the co-ordinate bench in assessee's own case for AYs. 2009-10 to 2012-13 wherein also the appeal of the Revenue was dismissed after elaborate discussion on factual and legal matrix.Revenue's appeal towards alleged lower yield of production is dismissed.
Addition u/s 14A r.w.r. 8D - CIT-A deleted the addition - HELD THAT:- As the assessee has not derived any exempt income per se. It is well settled that in the absence of any exempt income, no disallowance under s. 14A of the Act is permissible in view of the decision of the Hon'ble Gujarat High Court in the case of CIT vs. Corrtech Energy P. Ltd. [2014 (3) TMI 856 - GUJARAT HIGH COURT].
Alo the assessee has demonstrated sufficient net worth from which a presumption would naturally arise that investment for the purposes of earning exempt income is out of such own interest free funds available at the disposal of the assessee. A reference in this regard has been made on behalf of the assessee to the several judicial precedents including CIT vs. HDFC Bank Ltd. . [2014 (8) TMI 119 - BOMBAY HIGH COURT] and SUZLON ENERGY LTD. [2013 (7) TMI 697 - GUJARAT HIGH COURT] - Decided in favour of assessee.
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2021 (10) TMI 1244
TP Adjustment - ALP determination at entity level - authorities have computed entity level margin while determining the impugned Arm's Length Price (ALP) adjustment pertaining to software development services resulting in addition - HELD THAT:- We note in this factual backdrop that instant issue of Chapter X computation to be restricted to the assessee's international transactions only is no more res integra in light of decision in CIT Vs. Firestone International (P) Ltd. [2015 (6) TMI 1123 - BOMBAY HIGH COURT]. We thus decline Revenue's vehement arguments supporting the learned lower authorities' action computing the assessee's impugned ALP at entity level than only pertaining to its international transactions with the AEs involving an amount in issue. We accordingly find prima facie merit in the assessee's instant foregoing argument and restore the instant former issue back to Transfer Pricing Officer (TPO) for his afresh adjudication as per law within three effective opportunities of hearing.
Interest on receivables at ALP adjustment computed as per the SBI short term deposit rate - We find from a perusal of the TPO's order dt. 29.10.2019 page 61 that he appears to have gone by earlier estimation only whilst determining a credit period of 30 days only. As in Technimont ICB Limited [2013 (1) TMI 948 - ITAT MUMBAI] that an AE itself does not form a comparable since the corresponding transactions would be rendered as controlled ones only. We thus delete the impugned ALP adjustment on receivables in principle and leave it open for the TPO to verify necessary facts as per law.
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2021 (10) TMI 1243
Assessment u/s 144A - Ex-parte order - non providing proper opportunity - HELD THAT:- On perusal of assessment order, it is revealed that the assessee did not appear but filed some documents/explanation. However, the assessment was completed vide an ex-parte order dated 31.3.2015 passed u/s. 153A/144 of the I.T. Act, 1961, assessing the total income at ₹ 58,11,170/- as against the returned income of ₹ 2691/-, without providing sufficient opportunity to the assessee. Against the assessment order, the assessee appealed before the Ld. CIT(A) who during the appellate proceedings has considered the written submission of the assessee but the main contention that due to some unavoidable circumstances, voluminous documents and paper book were not filed before the AO, was not considered.
Keeping in view of the facts and circumstances of the case as explained above, we are of the considered opinion that the orders passed by the Revenue Authorities are against the principle of natural justice and, therefore, the issues involved in the Appeal filed by the assessee deserve to be set aside to the file of the AO to decide the same afresh, under the law, after detailed enquiry/investigation/verification of the each and every evidence. The AO is directed to pass denovo assessment order after allowing proper opportunity to the assessee.
AO is also directed to call all relevant documents/evidences including copy of bank statement, copies of cheques/drafts, from the recipient of Odisha Cricket Association through which amounts were received by the Association and collect the entire correspondence and details of the persons/entity/company, who gave the impugned amount to the Orisha Cricket Association. The assessee is also directed to fully cooperate with the AO in the proceedings and did not take any unnecessary adjournment and also produce all the documentary evidences before him to substantiate its case.
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2021 (10) TMI 1242
Assessment u/s 153A - Absence of satisfaction as needed foregoing alleged section 153C - HELD THAT:- As in the 2nd proviso to sub-section (1) of section 153A that all assessments pending on the "date of initiation of search" shall abate. We hold in view of the foregoing statutory provisions that the AO's foregoing alleged section 153C satisfaction only incorporated the expression; whilst dealing with the alleged seized material, it only "relates to" than "belongs to" as on the date of search and therefore also, section 153C satisfaction are found not same is not sustainable qua the instant latter aspect as well.
We wish to make it clear that we are dealing with a "search" wherein the corresponding statutory provisions have to be given stricter interpretation only in light only in light of Commissioner of Customs Vs. Dilip Kumar & Co. [2018 (7) TMI 1826 - SUPREME COURT] - We accordingly affirm the CIT(A)'s action under challenge holding the impugned 143(3) r.w.s. 153C assessment as lacking proper satisfaction. - Decided in favour of assessee.
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2021 (10) TMI 1241
Validity of Reopening of assessment u/s 147 - Addition of commission income for providing accommodation entries through unsecured loans - HELD THAT:- Admittedly, the return of income filed by the assessee was not subjected to scrutiny and was simply processed under section 143(1) of the Act. Subsequently, the assessing officer received specific information from the Investigation Wing indicating that certain unsecured loans advanced by the assessee during the year are non genuine. Based on such opinion, the assessing officer reopened the assessment. Thus, it is very much clear since the return of income filed by the assessee was simply processed under section 143(1) of the Act, the assessing officer had no occasion to verify the genuineness of the loan transaction.
When the assessing officer received specific information concerning the genuineness of the loan transaction, he had tangible material available before him to reopen the assessment. While recording the reasons for reopening the assessment, the assessing officer has to prima facie form a belief that the material on record indicate escapement of income. At the stage of reopening, the assessing officer is not required to record any conclusive finding regarding the escapement of income, as, that is a matter which can be ascertained in course of assessment proceedings. Thus, in the facts of the present case, the assessing officer had tangible material to form a belief that income has escaped assessment. That being the case, in our considered view, the assessing officer has validly initiated proceedings under section 147.
Genuineness of unsecured loan - The source from which the assessee had received such funds has not been properly explained either before the departmental authorities or even before us. Therefore, this aspect needs to be factually verified as it raises doubt regarding the loan transaction. However, merely based on such doubt and suspicion, no addition can be made as the issue requires further enquiry and investigation. At this stage, it is necessary to observe, in assessee’s own case in assessment year 2010-11, learned Commissioner (Appeals) has accepted similar loan transaction entered by the assessee with two parties, including, a common party as genuine and the addition of commission income has been deleted. Thus, these aspects will also have some bearing on the issue. Considering the fact that proper enquiry has not been made with regard to the source of funds available in assessee’s bank account, we are inclined to restore the issue to the assessing officer for fresh adjudication after proper enquiry and only after due opportunity of being heard to the assessee. Ground 2 is allowed for statistical purposes.
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2021 (10) TMI 1240
Assessment u/s 153A - Challenging addition contending that the year under appeal is non-abated assessment year and no incriminating material was referred while making addition - HELD THAT:- We find that the year under appeal is A.Y. 2006-07. Time limit of issuance of notice u/s 143(2) of the Act for selecting assessee’s case for scrutiny expires on 30th September 2007. Search was conducted on 13.11.2007. Except registered sale deed no other incriminating material was found. Consideration mentioned in the registered sale deed is duly accounted for. Other evidences are gathered by the Ld. AO by issuing notice u/s 131 of the Act and statement of the sellers were recorded during the course of assessment proceedings. The year under appeal is a non-abated assessment year. Addition in such non-abated assessment years can be made only on the basis of incriminating material found during the course of search.
Our this proposition is supported by the judgment of Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] and in the case of Pr. CIT vs. Meeta Gutgutia [2017 (5) TMI 1224 - DELHI HIGH COURT]
Unaccounted receipts - As purchase consideration paid by the assessee is not below the guideline rate applicable for calculating stamp duty. Both the sellers namely Mr. Arvind Kumar and Mr. Laxmi Narayan have signed the registered deed in the presence of the Sub-Registrar for registering the documents. Further, the assessee has not been provided any opportunity to cross examine alleged sellers nor the Ld. AO has initiated any proceedings against the sellers for making additions in their hands for unaccounted receipts.
Under the given facts and circumstances of the case, are of the considered view that Ld. AO was not justified in making the addition - Decided in favour of assessee.
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2021 (10) TMI 1239
Addition u/s 68 - Unexplained cash credit - HELD THAT:- Assessee has furnished the VAT audit report and Sales-tax return of M/s Khushal Trading Corporation, wherein, the transaction with the assessee has been reflected. It is also evident, the assessee has made payment for purchase to M/s Khushal Trading Corporation through banking channel - it can be said that not only the identity of M/s Khushal Trading Corporation is established but the assessee had purchased goods from the said party is also proved, as the concerned selling dealer has also furnished confirmation of account. Thus, in such circumstances, the amount cannot be treated as unexplained cash credit as the identity, genuineness and creditworthiness have been established.
Bogus purchases - The purchases made from M/s Khushal Trading Corporation cannot be held as non genuine merely because ledger account copy of assessee for couple of years could not be furnished due to certain exigencies. In any case of the matter, once the selling dealer confirms the sales made to the assessee and when such sales have been reflected in its accounts and returns filed, both, before the Income-tax department as well as Sales-tax department and there is no adverse information from the Sales-tax department, the purchases made from M/s Khushal Trading Corporation cannot be doubted, merely on the basis of presumption and surmises, unless, the revenue brings evidence on record to factually establish that the purchases are non genuine or M/s Khushal Trading Corporation is a non genuine entity.
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2021 (10) TMI 1238
Bogus LTCG - Unaccounted share transaction - exemption u/s 10(38) denied - addition primarily on the ground that M/s Alliance Intermediaries and Network Pvt. Ltd. through whom the assessee has carried out transaction of purchase and sale of shares belongs to Mukesh Chokshi group - HELD THAT:- Once, the assessee has discharged his onus to substantiate that the shares were purchased against payment and the shares were duly received/credited to the DMAT account; on sale, shares were debited from DMAT account of the assessee and the payment was credited to the bank account of the assessee and that the shares were transacted at floor of BSE, the transaction cannot be held to be non genuine merely on the basis of statement made by third part, more so, when no opportunity to cross examine the person making the statement is afforded to the assessee.
Revenue has not been able to controvert above findings of the CIT(A). We find no reason to interfere with the well reasoned order of the CIT(A) in deleting the addition. Therefore, the appeal of the Revenue lacks merit - Decided in favour of assessee.
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2021 (10) TMI 1237
Smuggling - Gold - Absolute confiscation - option was not given to the appellant for redemption as per Section 125 of the Customs Act, 1962 - levy of penalty u/s 112(a) & (b) of the Customs Act, 1962 - HELD THAT:- The Commissioner (Appeals) in the impugned order, has referred to a decision of Hon’ble Kerala High Court in the case of COMMISSIONER OF CUSTOMS, KERALA VERSUS OM PRAKASH KHATRI, DHIRAJ KUMAR DEVASI, SURENDRA SINGH RAO AND PANNA GOLD IMPEX LTD [2019 (3) TMI 457 - KERALA HIGH COURT] which thereafter was upheld by the Hon’ble Apex Court in OM PRAKASH KHATRI VERSUS COMMISSIONER [2019 (11) TMI 796 - SC ORDER] - it was held in the case that The appellant was unable to explain the source of the gold which was confiscated. In the circumstances, we find no merit in the civil appeals, which are accordingly dismissed.
The above decision may not come in the way of a legitimate owner if the source of gold is established.
The Order-in-Original does not record as to any such queries or any answer thereto from the appellant, and hence it is necessary in the first place to ascertain if the appellant can explain the sources before the adjudicating authority and if not, then the ratio of the Supreme Court judgment in OM PRAKASH KHATRI VERSUS COMMISSIONER [2019 (11) TMI 796 - SC ORDER] would apply. An attempt was made before this forum by the appellant by filing a copy of the tax invoice, to which learned DR objected to seriously, contending that firstly the same was not furnished before the lower authorities and secondly, the said document is clearly an afterthought, with no signature of the buyer.
Case remitted back to the file of adjudicating authority who having failed in the first instance to offer redemption option, shall now offer the same to the appellant, and then it is for the appellant to clear the test prescribed by the Apex court - the matter is restored to the file of adjudicating authority who shall pass a fresh order - appeal allowed by way of remand.
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2021 (10) TMI 1236
Seeking amendment in the bills of entry - excess duty payment by mistake - Section 154 of Customs Act - HELD THAT:- In the present case there is no dispute that excess duty was paid mistakenly on account of certain error and the said mistake was rectifiable under Section 154. Further, the appellant was not at fault at all but it was directed to file refund application at the first instance.
Had the Department considered the appellant’s request for amendment of its Bill of Entry then, perhaps, the alleged delay, etc. would not have arisen at all. The appellant had correctly and in line with the dictum of the Hon’ble Apex Court in the case of ITC Ltd. (Supra) requested for amendment and it was at the instance of the Department that a refund application was also filed.
The appellant’s request for amendment/rectification being as per the Hon’ble Apex Court’s judgment in ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT], is therefore in order - Appeal allowed by way of remand.
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2021 (10) TMI 1235
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Applicant i.e. the Operational Creditor as per Purchase Order supplied material and stand taken by the Corporate debtor that there was understanding that material should be supplied only 100% advanced payment, but the Corporate Debtor has never raised any dispute in respect of supplied of excess quantity material until the demand for payment raised by the Operational Creditor after a year - The Corporate Debtor contended that as per section 9(3)(b) of the I & B Code, there is dispute among parties, but that contention is after thought as until demand for payment raised by the Operational Creditor, the Corporate debtor accepted material supplied and enjoyed the same.
The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor.
Petition admitted - moratorium declared.
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2021 (10) TMI 1234
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - existence of debt and dispute or not - service of demand notice - HELD THAT:- There is a business relationship between Operational Creditor and Corporate Debtor, and medicines were supplied to the Corporate Debtor as per mutual understanding and on the basis of purchase order raised by Corporate Debtor from time to time. There exists no written agreement. Though it was claimed by the Corporate Debtor in his reply that there were delays in delivery, however, no evidence for such claim has been submitted by the Corporate Debtor. Further Corporate Debtor has not returned the medicines to Operational Creditor which were delivered to it - no evidence in support of claim of losses suffered by Corporate Debtor has been brought on record. Thus, it is frivolous or spurious defence which has been made to avoid initiation of CIRP. Hence, there is no merit in such claims made by the Corporate Debtor.
It is also noticed that there is no pre existing dispute between Operational Creditor and Corporate Debtor, and no reply was sent by Corporate Debtor against the demand notice under section 8 of IBC, 2016 which was served on Corporate Debtor by hand delivery.
It is clear that Corporate Debtor has defaulted in the payment of its debts. On the basis of the facts the application is otherwise defect free on record. However as far as amount of debt is concerned, the same would be determined by IP/IRP in the course of CIRP of the Corporate Debtor - Application admitted - moratorium declared.
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2021 (10) TMI 1233
Jurisdiction - competence of suspended management of the CD to file Composite Resolution Plan - HELD THAT:- The CD is an MSME Unit and the Hon'ble NCLAT has passed an order in this regard holding that there is no harm in giving an opportunity to the MSME in accordance with the provisions of the Code for keeping the promotion of entrepreneurship alive.
Section 29 A of IBC provides for the eligibility of Resolution Applicant and Section 240 A explains how IBC code is applicable to MSMEs - One Resolution plan has been approved by the COC and placed before this bench and the Applicant has filed this Petition as a matter of abundant caution.
There are no merits in the petition - petition dismissed.
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2021 (10) TMI 1232
Refund of unutilised Cenvat Credit - input or not - nexus of input with the output service - Education and Training Expenses - Subscription Fee - Subscription Fee paid to Export Promotion Council for EOU, SEZ, and M/s. Nasscom - Rejection of refund for mismatch of description in the Invoices issued by M/s. Beyond Square Solutions (P) Ltd. - rejection of refund for invoices do not indicate the Service Tax Registration No. of the service provider.
Education and Training Expenses - denial on the ground of nexus - HELD THAT:- In the invoices, the services are described as Event Management Services. The invoice does not show that the services are provided for Education and Training Services or as Subscription Fee. As per invoice, the consideration is paid for Event Management Services - The Tribunal in the case of DBOI GLOBAL SERVICES PVT LTD VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI [2016 (11) TMI 521 - CESTAT MUMBAI] has held that Event Management Services are eligible for credit. The said decision has been upheld by the Bombay High Court in THE COMMISSIONER OF SERVICE TAX – VI, MUMBAI VERSUS M/S. DBOI GLOBAL SERVICES P. LTD. [2018 (12) TMI 171 - BOMBAY HIGH COURT] - the disallowance of credit/refund on these invoices issued by M/s. Host India Events & Marketing is unjustified. The appellant is eligible for credit/refund.
Refund claim - Subscription Fee paid to Export Promotion Council for EOU, SEZ, and M/s. Nasscom - HELD THAT:- The Tribunal in the case of M/s. Alliance Global Services IT India (P) Ltd., (supra) has analysed the very same issue and held that the credit is eligible. It also needs to be pointed out that in para 7.4 of the impugned order, the Commissioner (Appeals) has relied upon the decision in the case ofM/S. MARUTI SUZUKI LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III [2009 (8) TMI 14 - SUPREME COURT] to hold that the credit is not eligible - credit availed in respect of Subscription Fee paid on Export Promotion Council for EOU, SEZ and M/s. Nasscom are eligible for refund.
Refund claim - Invoices issued by M/s. Beyond Square Solutions (P) Ltd. - Learned counsel has argued that though the nature of expenses is described in the invoices dated 15.05.2015 and 07.03.2015 by M/s. Beyond Square Solutions (P) Ltd., as Subscription Fee, these invoices are actually issued for providing software solutions and not expenses towards Subscription Fee - HELD THAT:- On perusal of two invoices, the description of services unambiguously shows that the amount is paid for monthly Subscription Fee. The amount in both these invoices are constant, which is ₹ 15,000/-. There are no reason to assume that these expenses were for Software Services rendered by M/s. BSSPL to appellants.. It has also to be mentioned that the amount paid being constant for every month, it can only be that the amount is paid towards subscription. The appellants have not produced any evidence to support their arguments that M/s. BSSPL assisted them for providing software solutions and the expenses are incurred for such services and not Subscription Fee. For this reason, the rejection of credit on the invoices by M/s.BSSPL is upheld.
Refund claim - Invoices issued by two Consultancy Services, namely, M/s. Crave Infotech and Consultancy Services and M/s. Dayadimensi India (P) Ltd. - reason for rejection of refund in respect of these invoices is that the invoices do not indicate the Service Tax Registration No. of the service provider - HELD THAT:- It is an omission on the part of service provider, which is beyond the control of the appellants, who is the service recipient. In the case of MAFATLAL INDUSTRIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, AHMEDABAD [2020 (6) TMI 61 - CESTAT AHMEDABAD], it was held that this issue is only a technical infraction and the error not being on the assessee’s part, the benefit of credit/refund cannot be rejected - the credit/refund on these invoices is eligible.
Appeal allowed in part.
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2021 (10) TMI 1231
Refund of unutilized/accumulated CENVAT credit on input services - N/N. 27/2012 ibid - HELD THAT:- The Orders-in-Originals are speaking orders, inasmuch as the adjudicating authority has considered the conditions laid down under the governing Notification No. 27/2012 ibid and has also analysed the applicability of para 2(h) of said Notification ibid has also noted the change in law with the introduction of GST Act, 2017 whereby, the filing of ER-3 return was done away with. I find that the reasonings given by the adjudicating authority are quite logical and well-founded. It is also well settled that the introduction of a new law cannot be held to deprive the rights of a Taxpayer, especially when the tax payers’ money lies with the Revenue.
In the impugned order, the Commissioner (Appeals) has only upheld the Department’s contention that the refund sanctioned was not legal and proper, but has not whispered any reasons to arrive at such a conclusion. The Commissioner (Appeals) has only extracted the findings of the adjudicating authority to hold that the sanctioning order was not legal and proper, which is nothing but baseless, arbitrary & hence, the same cannot be sustained in the eye of law.
The appellant is entitled for the refunds - Appeal allowed - decided in favor of appellant.
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2021 (10) TMI 1230
Refund of excess service tax paid - time limitation - refund claim rejected holding that the tax payment having been made vide challan dated 20.7.2017 and 1.6.2017, the refund claim filed on 29.11.2018 is beyond one year period as prescribed under section 11B of the Central Excise Act, 1944 - HELD THAT:- It is not disputed that the appellant has made excess payment of ₹ 3,05,175/-. Returns were belatedly filed only on 23.10.2018. However, tax was paid by cash in advance vide challans dated 20.7.2017 and 1.6.2017. The department has computed the period of one year from these dates of the challan to hold that the refund claim is barred by limitation. It has to be mentioned that the appellant has come to know about the excess payment only after the filing of the returns on 23.10.2018. The refund claim having been filed on 29.11.2018 when computed from the date of filing of the ST-3 returns, it cannot be said that there is a delay in filing the refund claim. Section 11B of Central Excise Act, 1944 does not talk about the relevant date for computing the period of limitation in the case of payment of service tax.
In the present case, the refund arises out of excess payment. The excess payment can be ascertained only when the appellant files the ST-3 returns. When such facts are put into consideration, in strict sense, it cannot be said that there is a delay in filing the refund claim. It is an excess payment made by the appellant. Needless to say that the department cannot retain any amount which is not collected / paid under authority of law.
The jurisdictional High Court in the case of M/S. 3E INFOTECH VERSUS CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, COMMISSIONER OF CENTRAL EXCISE (APPEALS-I) [2018 (7) TMI 276 - MADRAS HIGH COURT] has categorically held that section 11B cannot be applied when the tax has been paid under mistake and when not required to be paid.
The rejection of refund claim as time-barred in terms of section 11B of Central Excise Act, 1944 r/w section 83 of the Finance Act, 1994 cannot sustain - Appeal allowed - decided in favor of appellant.
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2021 (10) TMI 1229
Classification of services - Right to use of car parking space or not - car parking charges collected by the appellant from its customers - levy of tax on Club Membership Services - Demand of Service Tax on amounts received after 01/07/2010 for ‘Construction Services’ rendered upto 30/06/2010 - time limitation.
Car parking charges collected by the appellant from its customers - Right to use of car parking space or not - time limitation - HELD THAT:- The general terms and conditions sheet as well as the sale deed mentions the said amounts against the Right to use car parking space and not as sale of car parking space. The department has not brought any contrary submission to challenge the above finding that the Appellant has provided right to use towards car parking space and not ‘Construction Service’ towards the same Right to use - the Appellant has made out a case on limitation ground as the said service was introduced w.e.f. 01/07/2010 and there was no clarity as to the taxability of such amounts as received by the Appellant. Hence the Appellant was under a bona fide belief that since it was giving Right to use of car parking space, no tax is payable under the category ‘Construction Services’ - in the instant case of the Appellant, since the entire demand has been raised by invoking extended period of limitation, the same is set aside.
Club Membership Services - HELD THAT:- Since there was no club in existence during the period of dispute, there cannot be any demand raised on the said ground. The Architect’s Certificate dated 16/08/2016 is testimony to the stated fact and there is no contrary evidence produced by the department to dispute the same - there are merit in the submission of the Appellant and accordingly the demand under the ‘Membership of Club or Association Services’ also needs to be set aside.
Demand of Service Tax on amounts received after 01/07/2010 for ‘Construction Services’ rendered upto 30/06/2010 - HELD THAT:- The essential condition for determining the taxability is (i) whether payment made by the buyer to the builder on or after 01/07/2010 and (ii) whether payment made before or after issuance of completion certificate by the competent authority and since in the case of the Appellant the completion certificate was not issued when the amounts were received, the same is taxable under the Service Tax net - there is no ambiguity in the condition as the same only extends the tax net of the ‘Construction Services’ to any amounts received prior to obtaining completion certificate - the demand on the ‘Construction of Residential Complex Services’ as confirmed by the learned Adjudicating authority is set aside in entirety.
Time Limitation - HELD THAT:- The department has failed to produce sufficient evidence to satisfy the ingredients for invocation of extended period of limitation and hence, the invocation of extended period of limitation to demand duty cannot be sustained in the case at hand.
The entire demand cannot be confirmed both on merits and on limitation - Appeal allowed - decided in favor of appellant.
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2021 (10) TMI 1228
CENVAT Credit - removal of goods after use - denial of credit on the ground that transaction value against stock transfer is not a sale - availed in terms of proviso to Rule (5A)(a) of CENVAT Credit Rules, 2004 - Revenue neutrality - HELD THAT:- A close reading of Rule 5 and sub-Rule 5A would clearly reveal that ‘removal after being used’ is the requirement for availment of CENVAT credit and whether it is a sale transaction/not a sale transaction is not a criteria that would determine the eligibility of availment of such credit and therefore it would be erroneous to say that transaction value of the invoice would have no basis unless it is a sale transaction because CENVAT credit was taken at the time of purchase of capital goods that has already determined the transaction value and it is that value which is noted in the transfer challan.
Revenue neutrality - HELD THAT:- The appellant had clearly mentioned in the documents evidencing transfer that the valuation was done as per the Circular No. 643/34/2002-CX dated 01/07/2002 and the same is held to be proper calculation by the Jurisdictional Range Offer of the supplier of capital goods, besides the facts that it is now a settled position of law that legality of such availment of credit cannot be questioned at the receiver’s end let alone a revenue neutral situation.
Appeal allowed - decided in favor of appellant.
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2021 (10) TMI 1227
Dishonor of Cheque - existence of recoverable debt or not - NEFT transfer was made towards the outstanding cheque amount or not - HELD THAT:- The issue as to whether this Court can enter into disputed questions of facts, while exercising powers under Section 482 Cr.P.C., is no longer res integra. The Supreme Court in STATE FARM CORPN. OF INDIA LTD. VERSUS NIJJER AGRO FOODS LTD. AND ORS. [2005 (7) TMI 726 - SUPREME COURT] has taken the following view in respect of exercise of power under Section 482 Cr.P.C. by High Courts where it was held that Whether the said payment has been made or it is towards some of the amounts covered by the cheques are all the questions which can be decided only at the trial of the complaint cases under Section 138 of the Negotiable Instruments Act and could not have been made the basis of allowing the revision petition.
Similar view has been taken in S. KRISHNAMOORTHY VERSUS CHELLAMMAL [2015 (3) TMI 1386 - SUPREME COURT], where the Supreme Court held that when there are disputed questions of facts involved, the same would be a matter of trial and cannot be decided in the proceedings under Section 482 Cr.P.C.
This Court is of the view that while exercising its power under Section 482 Cr.P.C., it would be expedient for the Court to not go into the disputed questions of fact, the same being a matter of trial - Petition dismissed.
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2021 (10) TMI 1226
Levy of tax and penalty as well as the proceedings under Section 129(1)(b) of the CGST Act - unilateral enhancement of the amount of the invoices - driver produced the invoices - drivers are owners of goods or not - notification dated 31.12.2018 - HELD THAT:- The matter requires consideration.
Learned Standing Counsel prays for and is granted three weeks time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter - List thereafter.
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9911796707
