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2020 (5) TMI 534
Smuggling - contraband item kept in safe custody by income tax officers - Interpretation of statute - true import and construction of the provisions contained in sections 41 and 42 of the NDPS Act - whether the act of the Income Tax Officers of collecting and keeping the contraband in the safe custody on 7th January 2014 constitutes a seizure?
HELD THAT:- The phraseology of sections 41 and 42 of NDPS Act, indicates that the powers under those sections cannot be exercised by an officer who is not either empowered or authorized. A search and seizure operation by an officer not empowered or authorized would be without mandate of law. Such search and seizure cannot be banked upon to visit a person with the consequences envisaged by the provisions of the Act. Can this prescription be applied with equal vigour when the contraband is found per chance by the officers who are neither empowered nor authorized under the NDPS Act, is the real question. Here the context provides a legitimate answer.
If the search and seizure operation is carried out by the officers who are neither empowered nor authorized with the purpose or under a belief that the suspect possesses the contraband substance, then the provisions of the Act would apply with full force and the prosecution would not be permitted to rely upon such search and the trial on the strength of such seizure would stand vitiated. However, when the officers stumbled upon the contraband substance in possession of a person in a totally different proceedings, like the income tax search at hand, different considerations ought to come into play lest the ground of non-compliance of the provisions contained in sections 41 and 42 of the NDPS Act, even in case of an accidental recovery of contraband substance, would cause serious prejudice to the cause of administration of criminal justice.
A profitable reference in this context can be made to the judgment of the Supreme Court in the case of STATE OF HIMACHAL PRADESH VERSUS SUNIL KUMAR [2014 (3) TMI 1164 - SUPREME COURT], wherein, in the context of compliance of the provisions contained in section 50 of the Act, the Supreme Court considered the question : whether the accidental or chance recovery of narcotic drugs during a personal or body search would attract the provisions of section 50 of the NDPS Act?. Placing reliance upon the earlier judgment in the case of STATE OF PUNJAB VERSUS BALBIR SINGH [1994 (3) TMI 173 - SUPREME COURT] and the Constitution Bench judgment in the case of State of Punjab Vs. Baldev Singh [1999 (7) TMI 630 - SUPREME COURT], the Supreme Court held that the question posed in that case was no longer res-integra and answered the same in the negative.
In the case at hand, there is material to indicate that the Income Tax search was underway from 7th January 2014 to 10th January 2014. The panchanama drawn by the Income Tax Authorities evidences the said fact. At this juncture, it would be rather hazardous to draw an inference that the said income tax search was a subterfuge. The statements of the Income Tax Officers find requisite support in the statements of the applicant recorded under section 67 of the NDPS Act - The action of the officers of the Income Tax department in apprising the said matter of finding the suspicious substance during the course of Income Tax search, in the given circumstances, cannot be said to be inconceivable and unjustifiable.
The learned Special Judge was within his rights in recording a finding that there was adequate material which justified a strong suspicion of accused No.1-applicant having committed the offence punishable under section 8(c) read with section 21(b) of the NDPS Act. Thus, no interference is warranted in exercise of revisional jurisdiction - Revision dismissed.
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2020 (5) TMI 533
Deemed dividend u/s 2(22)(e) - Business transaction - amount being advanced and received back - HELD THAT:- Tribunal with regard to related concerns, wherein it was noted that though advances were made but on the same date, there were transaction of receipt and payments itself by both the parties. Tribunal thus addressed itself as to whether such transaction is covered in the definition of deemed dividend in the hands of the assessee u/s 2(22)(e) or not.
Tribunal held the issue to be covered by the decision of Praveen Bhimsi Chheda Shivsadan vs DCIT OFFICER [2011 (5) TMI 857 - ITAT MUMBAI] against which the Hon’ble Bombay High Court in the case of CIT vs Pravin Bhimsi Chheda [2014 (7) TMI 141 - BOMBAY HIGH COURT] has dismissed the appeal of the Revenue holding that when the company got back its funds on the same day, it cannot fall into the definition of the deemed dividend.
Same parity of reasoning and decision of Hon’ble Bombay High Court, the issue was decided in favour of the assessee holding that where the transaction entered into by two companies were business transactions; where both the parties were engaged in similar trade and activities; then it was not hit by the provisions of section 2(22)(e).
The issue is similar wherein the business transaction was between two parties and the assessee had produced the bank statements during the course of hearing before us evidencing the amount being advanced and received back on the same date. Accordingly, we find no merit in the addition in the hands of the assessee u/s 2(22)(e) of the Act and the same is deleted. - Decided in favour of assessee.
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2020 (5) TMI 532
Exemption u/s 10(23C)(vi) denied - assessee trust is running two educational institutions namely, Umalok Paramedical College and Umalok Nursing School and trust has not been granted registration u/s 12AA - HELD THAT:- Expenditure involved in conduct of the camps and distribution of medicines, food and cloth forms and an integral part of conducting of field camps by the assessee trust in imparting the education. They are directly and also integrally connected with the type of education imparted by the assessee trust. We are unable to accept with the finding of the ld. CIT (A). We have also gone through the observation of the ld. CIT (A) that the assessee trust has given various interest free advances to the trustees and find that the assessee has given only an indemnity bond but not any loans to the trustees as per the record before us. Hence, it can be held that the assessee is found to be solely in the activity of education and no other activities have been undertaken by the assessee during the year.
The prescribed limit for Section 10(23)(iiiad) is less than ₹ 1 crore.
Hence, keeping in view that the annual receipt of the education institute is less than ₹ 1 crore, the education institute is solely involved in the educational activity and since the objects clause of the trust during the year under consideration is to carry the educational activities and keeping in view that no other material contra has been brought by the revenue. We hereby hold that the assessee is eligible for deduction u/s 10(23C) of the Act. - Decided in favour of assessee.
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2020 (5) TMI 531
TP Adjustment - determining ALP of royalty paid - HELD THAT:- Following the order passed by the coordinate Bench of the Tribunal in taxpayer’s own case for AY 2007-08 [2018 (3) TMI 423 - ITAT DELHI] we are of the considered view that CIT (A) has rightly deleted the adjustment made by the ld. TPO while determining the ALP and royalty paymen for its Tajola plant as nil because when it is not in dispute that the expenditure or payment of royalty has been paid / incurred for the purpose of business, it cannot be disallowed on the ground that it has failed to generate any economic value for the taxpayer’s business - it is not the duty of the ld. TPO to advise the taxpayer company as to how the business affairs are to be run. So, when the taxpayer has successfully proved that it has received patented technology and support for the manufacturing of float glass from AGC Japan in lieu of royalty payment, the same cannot be disallowed on the basis of conjectures and surmises. So, ld. CIT (A) has rightly deleted the addition.
MAT Computation - Addition on account of provision for gratuity to book profit u/s 115JB - HELD THAT:- Following the order passed by the coordinate Bench of the Tribunal in taxpayer’s own case [2018 (3) TMI 423 - ITAT DELHI] we are of the considered view that by now, it is settled proposition of law that when provision for gratuity is being made on the basis of actuarial valuation, it cannot be said to be an unascertained liability and added in terms of clause (c) of section 115JB of the Act and as such, the said amount would not be added to the net profit. So, we find no illegality or perversity in the deletion made by the ld. CIT (A), hence ground no.2 of Revenue’s appeal is deleted.
Addition u/s 14A read with Rule 8D - disallowance under the normal provisions of the Act as well as u/s 115JB - CIT (A) contended that since the taxpayer has suo motu disallowed u/s 14A of the Act on account of expenses incurred to earn the dividend income of ₹ 7,47,820/-, no further disallowance can be made as the AO has not recorded any satisfaction if the working given by the taxpayer is not correct - HELD THAT:- This issue is also required to be restored to AO to decide afresh in view of the decision relied upon by the ld. AR for the taxpayer referred in the preceding paras. So, this ground is allowed for statistical purposes.
Disallowance of gross MTM loss - addition relying upon Instruction No.3/2010 dated 23.03.2010 by treating MTM loss as a notional loss being contingent in nature - HELD THAT:- As relying on BANK OF BAHRAIN & KUWAIT [2010 (8) TMI 578 - ITAT, MUMBAI] when MTM gain is being taxed by the department in respect of such unmatured forward foreign exchange contracts then there was no ground to disallow the loss as claimed by the taxpayer in respect of the same contracts on the same footing. The entire detail is there on record. Even otherwise, the obligation accrued against the taxpayer the minute it entered into forward foreign exchange contracts. So, the forward foreign exchange contracts debited to the profit & loss account are allowable one being the liability having been crystallized when a pending obligation on the date of balance sheet is determinable with reasonable certainty.
Foreign currency gain - disallowance on the ground that taxpayer did not furnish any supporting document in respect of its claim to prove that the gain of reinstatement of liability of Foreign Currency Loan – External Commercial Borrowing taken for acquiring capital goods by applying the provisions contained u/s 43A - HELD THAT:- The coordinate Bench of the Tribunal in the case of Vodafone East Ltd. & Ors. vs. ACIT . [2009 (4) TMI 4 - SUPREME COURT] by relying upon the decision rendered by Hon’ble Supreme Court in case of CIT vs. Woodward Governor of India Pvt. Ltd.. [2009 (4) TMI 4 - SUPREME COURT]decided the identical issue in favour of the taxpayer.
Disallowance on account of provision for gratuity under the normal provisions - gratuity has been added to the taxable income under the normal provisions of the Act - HELD THAT:- When provisions of gratuity has been made on accrual basis it is not an unascertained liability rather an ascertained liability which aspect has not been examined by the ld. CIT (A), so the issue is remanded back to the ld. CIT (A) to decide afresh accordingly after providing an opportunity of being heard to the taxpayer, in view of the order passed by the Tribunal in taxpayer’s own case for AY 2007-08 [2018 (3) TMI 423 - ITAT DELHI]. So, ground no.4 is determined in favour of the taxpayer for statistical purposes.
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2020 (5) TMI 530
Revision of order - change of opinion - Notification No.A-5-1-94/ST-V (55) dated 30.03.1994 - section 9 (2) of Central Tax Act, 1956 read with section 19 (1) of the M.P. General Sales Tax Act, 1958 - exemption from payment of tax granted on “all kinds of footwear made of PVC and chappals made of rubber and straps there of the sale price of which did not exceed ₹ 50/- per pair”.
Whether proper interpretation has been done by the Madhya Pradesh Commercial Tax Appellate Board by holding that the notification was not general to class of goods, and therefore, the assessee was not entitled for the benefit of exemption from payment of tax under Section 8 (2A) of the Central Sales Tax Act, 1956?
HELD THAT:- The notification in the present case exempting all kind of footwear made of PVC, chappals made of rubber and straps there of the sale price of which does not exceed ₹ 50/- per pair, can never said to be a general exemption, as it is conditioned by specified circumstances - the Madhya Pradesh Commercial Tax Appellate Board was justified in holding that the exemption granted from payment of tax is not a general exemption and the assessee is not entitled to the benefit of exemption from payment of tax under Section 8 (2A) of the Central Sales Tax Act, 1956.
The questions of law are accordingly, answered in affirmative.
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2020 (5) TMI 529
Dishonor of Cheque - legally recoverable debt or not - rebuttal of presumption - whether the cheque was given in security or not and its effect? - HELD THAT:- If any cheque is given in security, then presumption of legally enforceable debt or liability exists which has to be rebutted by the accused to the extent that full amount due and payable to the complainant has been paid or otherwise - in the case in hand, accused did not discharge the onus lying over him and he could not rebut the presumption as per Section 118 and Section 139 of the Act. Here, the complainant/ appellant on the request of respondent/accused, borrowed ₹ 1,00,000/- on 29-03-2007 and in lieu thereof accused/respondent issued a cheque in favour of the appellant bearing No.531001. Thus there is legally recoverable debt or liability on the accused/respondent.
It is established that trial Court erred in passing the impugned judgment recording acquittal in favour of the accused i.e. respondent - Therefore, impugned judgment dated 18-08-2009 is hereby set aside and appeal stands allowed.
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2020 (5) TMI 528
Validity of Proceeding u/s 158BC - satisfaction was not recorded before completion of assessment proceeding - Tribunal held that assessment order passed u/s 158BD read with Section 158BC is not valid and is void ab initio - HELD THAT:- Satisfaction can even be recorded immediately after completion of the assessment proceedings u/s 158BC - In the instant case, admittedly, the satisfaction has been recorded after completion of the proceedings u/s 158BC - the order passed by the AO as well as the CIT (Appeals) has been set aside by the Tribunal merely on the ground that the satisfaction has not been recorded before completion of the assessment proceedings. The aforesaid finding is contrary to law laid down in the case of CALCUTTA KNITWEARS [2014 (4) TMI 33 - SUPREME COURT]. Therefore, the same cannot be sustained in the eye of law.
Substantial question of law framed by this Court is answered in the negative. In the result, the impugned order passed by the Tribunal is hereby quashed and the matter is remitted to the Tribunal to deal with the appeal on merits expeditiously in accordance with law.
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2020 (5) TMI 527
Stay petition - stay would be conditional on payment of 20% of the disputed demand - HELD THAT:- The question of intervening as regards to the assessment order at this stage is not appropriate. However, as regards the contention that the consideration of application for stay and further exercise of power of the PCIT keeping in mind the circular bearing No.1914 as amended on 21.5.2017, 29.2.2016 and 31.7.2017, the request of the petitioner is to be considered in a meaningful manner.
In fact, the power of granting stay has been considered by the High Court of Judicature at Madras in the case of M/s. Shriram Finance [2019 (3) TMI 1478 - MADRAS HIGH COURT] wherein, certain guidelines have been referred which may be taken note of. So also the manner of exercise of power of the Principal Commissioner of Income Tax is detailed in Flipkart’s case [2017 (3) TMI 802 - KARNATAKA HIGH COURT] which needs to be kept in mind. This Court refrains from expressing any opinion on the merits of contentions raised, but reiterates that the PCIT is to exercise power conferred upon him as per the circulars in a meaningful manner.
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2020 (5) TMI 526
Assessment u/s 153A - Disallowance u/s 14A - Addition based on incriminating materials or not? - HELD THAT:- We note that both AYs i.e. AYs. 2013-14 and 2014-15 were not pending before the AO on the date of search on 01.12.2015 and, therefore, both assessment years are unabated assessment and, therefore, as per the settled position of law, no addition/disallowance is permissible in AYs. 2013-14 and 2014-15 without the aid of incriminating materials unearthed qua the issue, and the year under consideration u/s. 153A - Since there is no whisper by the AO/Ld. CIT(A) about any incriminating material to show that assessee had in fact had incurred expenditure for earning the exempt income in these two assessment years, no disallowance could have been resorted to by the AO u/s. 153A - We find merit in the contention of the Ld. AR for assessee and allow the appeal by directing deletion of addition made u/s. 14A read with Rule 8D of the Rules.
AY 2016-17 - limited prayer of the Ld. AR of the assessee is that the disallowance made u/s.14A read with Rule 8D(2)(iii) may be restricted to 0.5% of the investment made in the dividend yielding scrips - HELD THAT:- We find force in the contention of the Ld. AR and this Tribunal have been consistently taking such a view after the decision in REI Agro Ltd. vs. DCIT [2013 (9) TMI 156 - ITAT KOLKATA] - So, we direct the AO to restrict the disallowance under Rule 8D2(iii) at .5% of the investment in dividend yielding scrips. With this direction, we dispose of this appeal of the assessee for AY 2016-17.
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2020 (5) TMI 525
Reopening of assessment u/s 147 - income on account of capital gain arising from transfer of the immovable properties has escaped assessment - deduction u/s 54F claimed - HELD THAT:- AO issued notice u/s 133(6) to the assessee for ascertaining the facts about the taxability of capital gain. In reply, the assessee has claimed that he has filed the return of income and shown this transaction but claimed deduction u/s 54F as well as Indexed Cost. The reply of the assessee is very brief and not with the details of the deduction u/s 54F. Further the assessee has not furnished any evidence during the said enquiry conducted by the AO prior to recording the reasons. Therefore, the assessee, despite the enquiry conducted by the AO, has not disclosed the facts regarding the investment made by him for purchase or construction of the new residential house. This fact indicates that the assessee has made this claim without any supporting evidence and even during reassessment proceedings the assessee could not produce the documentary evidence to the satisfaction of the AO and the claim of the assessee u/s 54F of the Act was rejected.
Once the AO has brought on record the facts and reasons to form the belief that income is assessable to tax on account of capital gain then the quantum of the income finally computed is not a material aspect at the stage of initiation of proceedings u/s 147/148 of the Act. Therefore, the objection raised by the assessee regarding the correct amount of capital gain as recorded in the reasons cannot be a ground for quashing the proceedings u/s 147/148 of the Act when the AO has shown the relevance between the reasons recorded and the formation of belief on the subject matter and the source of income which has escaped assessment. Therefore, the decisions relied by the ld.AR of the assessee are not applicable in the facts of the present case. When the reasons are itself self-explanatory and speaking the link between the material and the formation of belief then the approving authority i.e. Pr. CIT is not required further to supplement the reasons to believe as recorded by the AO. Hence, in view of the facts and circumstances of the case, we do not find any error or illegality in the impugned order of the ld. CIT(A). - Decided against assessee.
Disallowance of deduction u/s 54F - property which was claimed to be reconstructed/ renovated was not owned by the assessee - HELD THAT:- additional evidences which were sought to be filed by the ld.AR of the assessee, there is nothing to show that the assessee has invested the money in the construction of the house. Further, when the assessee has no right in the house then even if it is financed by the assessee the ownership of the property would not change. Accordingly, the additional evidences produced by the are not going to support the claim but only support the claim of ownership of the father of the assessee. The affidavit which has been sought to be filed by the assessee, could have been filed before the lower authorities. After a gap of about 12 years, the affidavit filed by the assessee cannot be accepted, being after though and self serving. Hence, in view of the facts and circumstances of the case, we do not find any error or illegality in the impugned order of the ld. CIT(A). Thus Ground of the assessee is dismissed.
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2020 (5) TMI 524
SEZ unit - Purchase of High-Speed Diesel (HSD) without payment of excise duty from a local refinery - validity of Guideline dated 6.4.2015 bearing Reference No. P.613/2006-SEZ - period in dispute between 1.4.2015 and 15.02.2016 - HELD THAT:- The liability to pay excise duty is on the manufacturer and not the buyer though burden of such duty is passed on the to the buyer. There is no provision under the Central Excise Act,1944 by virtue of which excise duty is payable on reverse charge basis by the buyer. Therefore, interpretation of the provision of Special Economic Zones Act, 2005 cannot be in direct violation of the provisions of the Central Excise Act, 1944. Duty if any, is payable only by the manufacturer - Further, the exemption under Section 26(1) is subject to the restriction in section 26(2) of the Act. The phrase used in section 26(2), is “the Central Government may prescribe the manner in which, and the terms and conditions subject to which, the exemptions, concessions, drawback or other benefits shall be granted to the Developer or entrepreneur under sub-section (1)”.
Further, Supplies from the Domestic Tariff Area to a Unit or Developer for their authorized operations are eligible for export benefits as admissible under the Foreign Trade Policy - thus, the DTA supplier is not only entitled to the exports benefits under the Foreign Trade Policy in terms of Rule 23 of Special Economic Zone Rules, 2006 but was also entitled to clear the goods under bond or claim rebate of tax/duty paid by it in terms of Rule 30 of the aforesaid Rules.
That apart procurement of HSD by the petitioner from IOCL did not qualify as an import within the meaning of Section 2(o) of the Special Economic Zones Act, 2006. Therefore, there cannot be a demand for customs duty and interest thereon on the excise duty foregone by IOCL at the time of clearance of HSD from its factory/refinery to the petitioner under section 28 or 28AA of the Customs Act, 1962.
Further, Rule 47(5) of the Special Economic Zones Rules, 2006 has been inserted vide GSR 772 (E) dated 5.8.2016 with effect from 8.8.2016. As per the above provision, “Refund, Demand, Adjudication, Review and Appeal with Regard to Matters Relating to Authorised Operations under the Special Economic Zones Act, 2005, transactions, and goods and services related thereto, shall be made only by the jurisdictional Customs and Central Excise Authorities in accordance with the relevant provisions contained in the Customs Act, 1962, the Central Excise Act, 1944 and the Finance Act, 1994 and the rules made the render or notification issued under”.
The impugned show cause notice is also liable to be declared as without jurisdiction. Even if, it is assumed that the clearance of HSD Oil was without the authority of law by the DTA supplier (IOCL). Only the jurisdictional officer concerned under the Central Excise Act, 1944 within whose jurisdiction IOCL is registered is competent to issue a show cause notice to recover the excise duty under section 11A of the Central Excise Act, 1944 - the impugned show cause notice issued by the 2nd respondent is unsustainable and the demand proposed is liable to be quashed.
Petition allowed.
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2020 (5) TMI 523
Recovery of service tax along with interest and penalty - service tax on commission received on the distributors in multi level marketing system - HELD THAT:- The liability of service tax in multi level marketing system has been considered by this Tribunal in SHRI SURENDRA SINGH RATHORE AND SMT. CHANDA BOHRA VERSUS CCE, JAIPUR [2013 (8) TMI 149 - CESTAT NEW DELHI] where it was held that commission/consideration is provided according to the terms and conditions, for marketing/promotion efforts by the appellants. The receipt of commission by the appellants clearly makes them providers of “Business Auxiliary Service” as defined under Section 65(19) of the Act.
Appeal dismissed - decided against appellant.
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2020 (5) TMI 522
Classification of services - Intellectual Property Rights or not - payments towards the transfer of technology, design, drawing, technical know-how, intangible assets etc. to the overseas company - period 2004-05 to 2008-09 - Circular 80/2004-ST dated 17/09/2004 - HELD THAT:- On going through the agreement and Board’s circular issued in this regard, it is clear that there is a certain transfer of know-how involved it is not coming from the records of the case that such technical know-how, design, copy right etc have been patented in India in view of the clarification given by the Board unless such technical know-how etc are listed under the law for time being in force in the country and the services cannot be held to be a taxable service.
The services received by the appellants from Rolls Royce Turbomeca Limited, U.K. are not in the nature of Intellectual Property Services as defined under Finance Act, 1994 - appeal allowed - decided against Revenue.
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2020 (5) TMI 521
CENVAT Credit - capital goods or not - structural items used for supporting the capital goods - HELD THAT:- From the definition of capital goods, it is clear that anything which can be called as component spare and accessory of the goods falling under Chapters 82, 84, 85 and 90 of the Excise Tariff Act shall also be called as capital goods - In the present case, it is the submission of the appellant that the MS Structure is neither fabricated nor has been erected post fabrication by the appellant, but it has been purchased from the manufacturer of the boiler, the capital good itself. The said broilers are used in manufacture of appellant's final product. It is emphasized that the boiler manufacturer himself is selling the structure, it being utmost necessary for the said boiler to be put to use.
The invoices as emphasized by the appellant (as placed on record) sufficiently supports the contention of the appellant. What stands excluded to be called as input is the structure which is fabricated out of the objects like MS Angles/Sheets/ Joints Fights, etc. The same is not true for the structure in the present case. Mere nomenclature of a part of the boiler as MS Structure is not sufficient to falsify the ‘User Test’ principle as was laid down by Hon'ble Apex Court in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS LTD. [2010 (7) TMI 12 - SUPREME COURT].
The issue involved herein is no more res integra. It rather stands decided in favour of appellant itself in another appeal. The appellant has otherwise proved the MS Structure to not to be fabricated by the appellant but to have been purchased as an integral part of his capital goods i.e. biomass boiler, required by appellant to manufacture its final product i. e. Soap - appeal allowed - decided in favor of appellant.
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2020 (5) TMI 520
Validity of Tamil Nadu General Sales Tax (Fourth Amendment) Act, 1959 (Act 18 of 2002) dated 26.05.2002, w.e.f. 01.04.2002 - ilevy of tax on imported goods at 20 % vide Tamil Nadu General Sales Tax (Fourth Amendment) Act, 1959 (Act 18 of 2002) dated 26.05.2002, w.e.f. 01.04.2002 as substituted by Tamil Nadu General Sales Tax (Seventh Amendment) Act, 1959 (Act 22 of 2002) inserting Section 3(2-C) and Eleventh Schedule (Item 9) to the Tamil Nadu General Sales Tax Act, 1959 dated 26.05.2002, w.e.f. 01.07.2002 - Agreement dated 28.02.1995 on Trade and Commerce between the Government of Kindom of Bhutan and the 3rd respondent Union of India.
HELD THAT:- The decision cited by the petitioner in the context of anti-dumping duty in the case of COMMISSIONER OF CUSTOMS, BANGALORE VERSUS M/S. G.M. EXPORTS & OTHERS [2015 (9) TMI 1162 - SUPREME COURT] is of no relevance. There the Supreme Court was concerned as to whether anti- dumping duty imposed with respect to imports made during the period between the expiry of the provisional anti-dumping duty and the imposition of the final anti-dumping duty is legal and valid? - In the said decision there is no reference to the decision of the Division Bench of this court in SONY INDIA LTD. VERSUS COMMERCIAL TAX OFFICER, CHENNAI [2007 (9) TMI 530 - MADRAS HIGH COURT] though it was stated by the learned counsel for the petitioner. The decision of the Honourable Supreme Court in JINDAL STAINLESS LTD. AND ANR. VERSUS STATE OF HARYANA AND ORS. [2016 (11) TMI 545 - SUPREME COURT] is also of no relevance to the facts of the present case as it was concerned with entry tax.
The issue canvased by the petitioner here has already been negatived by the Division Bench of this Court in the above case. The issue having attained finality in Sony India Ltd and others Vs. CTO, it is no longer open for this court to either refer the issue to a Division Bench of this Court or take a contra view - learned counsel for the petitioner has also neither produced any other decisions of the Hon'ble Supreme Court which has taken a contrary view nor has produced any order of the Hon'ble Supreme Court staying operation of the decision of the Division Bench of this court in Sony India Ltd and others Vs. CTO.
Petition dismissed.
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2020 (5) TMI 519
Benami Property Transaction - petitioner Mallika Chamua in respect of 3(three) apartment properties and some other landed properties considered to be a benamidar of Dr. Durlav Chamua being the beneficial owner of the properties within the meaning of Section 2(10) and 2 (12) of the Benami Act of 1988 - petitioner Mallika Chamua and Bisakha Chamua are the daughters of Dr. Durlav Chamua while Smti. Dipika Chamua is his wife and the properties are being held by them as family members of Dr. Durlav Chamua - HELD THAT:- Section 2(9) of the Benami Act of 1988 as amended in 2016 does not include a property held by an individual in the name of spouse or in the name of any children of such individual where a consideration thereof had been paid out of the known source of income of the individual concerned. From the meaning of the expression of benami transaction under Section 2(9) of the Benami Act of 1988 also, we have noticed that there is no conclusion arrived at by Income Tax authorities in the notice dated 06.03.2020 that the properties in question were procured by Dr. Durlav Chamua were not from his known source of income.
A prima facie case has been made out against the notice dated 06.03.2020 under Section 24(1) of the Benami Act of 1988 as amended in 2016. Further considering the balance of convenience and irreparable loss that the petitioner may suffer, the notice dated 06.03.2020 under Section 24(1) of the Benami Act of 1988 in respect of the petitioner Mallika Chamua and all other related subsequent notices be stayed until further order(s). List on 19.06.2020.
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2020 (5) TMI 518
Admitted liability in terms of Section 245D (2A) - large-scale suppression resorted by the petitioner - HELD THAT:- The 1st respondent has accepted that the statement of 2nd respondent that it retained only 5% of the amount paid to it by BSAL as commission. Since the 2nd respondent agreed to add another amount of ₹ 1.5 crores to the aforesaid sum as undisclosed income the 1st respondent has accepted the case of the 2nd respondent.
Arithmetic of the transactions disclosed before the 1st respondent Settlement Commission do not add up and clearly shows that there were large-scale suppression resorted by the petitioner not only before the assessing officer but also before the 1st respondent settlement commission.
The 1st respondent Settlement Commission has accepted the case of the 2nd respondent that a sum of ₹ 20.14 crores was directly paid by BSAL by opening a LC directly in favour of the German company and that the amount was not received by the petitioner.
There are several discrepancies in the manner in which the case has been allowed to be settled by the 1st respondent settlement commission. The calculations has been accepted without any deliberations do not inspire confidence.
There are several disputed questions of fact which have been glossed over by the 1st respondent Settlement Commission while settling be case of the 2nd respondent vide impugned order.
This court is not sitting in appeal against the impugned order of the 1st respondent Settlement Commission, find sufficient reasons to interfere with the impugned order as there are several contradictions and the 2nd respondent appears to have not disclosed truly all facts that are required for settling the case. The impugned order has accepted cases without any discussions, therefore of the view that the impugned order is not sustainable.
The impugned order passed by the 1st respondent is quashed and the case is remanded back to the 1st respondent Settlement Commission to pass a fresh order after considering the objections of the petitioner filed under rule 9 of the Settlement Commission (Procedure) Rules 1997.
Since the dispute pertains to the assessment years 1997-98 and 1999-2000 and the application filed by the 2nd respondent was of the year 2005, the 1st respondent Settlement Commission is requested to pass a fresh order within a period of 6 months from the date of receipt of this order after considering the report of the petitioner filed under Section 9 of the Settlement Commission (Procedure) Rules 1997 through videoconferencing, if situations so warrants on account of continuance of Covid19 pandemic.
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2020 (5) TMI 517
Reopening of assessment u/s 147 - Whether the notice that has been issued to the petitioner was on account of change of opinion or on account of failure on the part of the petitioner to fully and truly disclose all material required for the assessment? - whether there was full and true disclosure by the petitioner as is contemplated under proviso to Section 147? - HELD THAT:- In this case, mere filing to the annexure by the petitioner in response to notice during scrutiny assessment by itself may or may not have been sufficient to come to the conclusion that there was full and true disclosure by the petitioner if the information furnished was neither complete nor true. Question is whether the information furnished were complete in all respect is to be decided only in a adjudicator mechanism.
It is therefore best left open for the petitioner to demonstrate before the respondent that the details furnished by the petitioner meets the requirements of full and true disclosure for the Assessing Officer to drop the proceedings in terms of 1st proviso to Section 147 of the Income Tax Act, 1961.
In case there is a change of opinion, the respondent cannot proceed in the light of the decision of the Hon’ble Supreme Court in CIT Vs. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT]
In case indeed there is a mere change in opinion, the respondent will be obliged to drop the proceeding. To ascertain whether is a mere change of opinion or not first it has to be established that there was true and full disclosure by the petitioner.
As mentioned above, this can be demonstrated by the petitioner only before the respondent and not in a proceeding under Art.226 of the Constitution of India as scope of judicial review is very limited and it is not possible to conduct a roving enquiry on facts and accounts.
Under these circumstances, find no merits in quashing the impugned notice and the communication overruling the objection of the petitioner. Relegate the petitioner to participate in the proceedings before the respondent by filing appropriate representations/objections within a period of thirty days from the date of receipt of a copy of this order. If the circumstance do not justify invocation of proviso to Section 147, the respondent shall drop the proceedings.
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2020 (5) TMI 516
Exemption u/s 10(23C)(iiiab) - denial of exemption as assessee is neither a University nor educational institution existing solely for educational purposes - Addition deleted by ITAT - HELD THAT:- The Supreme Court in ASSAM TEXT BOOK PRODUCTION AND PUBLICATION CORPORATION LTD. [2009 (10) TMI 60 - SUPREME COURT] has interpreted the definition of an educational institution and it is evident that all State controlled educational committees / boards that have been constituted to implement the educational policy of the States have to be treated as educational institutions.
From enunciation of law by the Supreme Court, the assessee, which has been constituted to implement the educational policy of the State has to be treated as an educational institution and is consequently entitled to the benefit of exemption under Section 10(22) of the Act. In view of preceding analysis, the substantial questions of law framed by this court are answered against revenue.
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2020 (5) TMI 515
Rectification u/s 154 - deduction u/s 80-HH - assessee argued that the issue with regard to deduction under Section 80-HH was specifically decided by CIT (A) hence the AO could not have passed order under Section 154 for rectifying the mistake - HELD THAT:- The contention raised is not well-founded. CIT (A) allowed the appeal holding that deduction under Section 80-HH should have been allowed @ 20% of the profit for the year without considering the actual amount allowable.
Re-compute the deduction in respect of unit 'A' and unit 'B'@ 20% of the profit ultimately determined for the year, the matter was remitted back to the AO. While re-computing the deduction, the Assessing Officer considered the profit earned from non-industrial activities and also did not deducted unabsorbed brought forward losses. It was to correct this mistake apparent on the record that Section 154 was invoked. Suffice to say that the issue dealt with by the 1st Appellate Authority was not subject-matter of proceedings under Section 154 of the Act, rather 20% of the profit earned from industrial activities was considered and deduction was allowed. There is no perversity in the order passed. Question No. 1 is answered against the assessee.
Deduction under Section 80-HH - Tribunal relying upon the decision of the Supreme Court in Distributors (Baroda) Pvt. Ltd. v. Union of India and others [1985 (7) TMI 1 - SUPREME COURT] upheld the order of the AO reducing the unabsorbed brought forward loss from the profit of the current year for the purpose of computing deduction under Section 80-HH - Assessee has not been able to show that the decision of the Supreme Court is not applicable in the facts of the present case, hence the question is answered against the assessee.
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