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Showing 261 to 280 of 2121 Records
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2019 (2) TMI 1869
Refund of CENVAT Credit - refund sought on the grounds that the duty was paid by them on various imported impugned components and indigenously procured goods without excluding the CVD and SAD portion of the duty and also the transportations cost paid on the imported consignments.
Whether the Cenvat Credit availed by the appellant can be considered as the part of assessable value in terms of section 4 (1) (a) of the Central Excise Act read with the Central Excise Valuation Rules?
HELD THAT:- The issue stands decided in favor of appellant in case of COLLECTOR OF CENTRAL EXCISE, PUNE VERSUS DAI ICHI KARKARIA LTD. [1999 (8) TMI 920 - SUPREME COURT], and SURYA CONDUCTORS P. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI [1999 (5) TMI 576 - CEGAT, MUMBAI]. In the case of Surya Conductor has been Affirmed by the Hon’ble Supreme Court in COMMISSIONER VERSUS SURYA CONDUCTORS (P) LTD. [1999 (10) TMI 750 - SC ORDER] It is held that the duty paid on input which is file as a Cenvat Credit is not to be considered while arriving at a cost of such inputs. Therefore, the appeal is legally wrong on this count.
Also, in this case the appellant has proved beyond the doubt at the strength of Chartered Accounting certificate and certificate from the Indian Railway that no incidence of duty has been passed on to buyers in the case (Indian Railway). In these circumstances, the impugned order is not sustainable and is being set aside.
Appeal allowed - decided in favor of appellant.
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2019 (2) TMI 1868
Benefit of Abatement in terms of N/N. 24/2012-ST dated 06.06.2012 - Works contract - Contract for Changing Old AC Sheet/CGI Sheet Roofing by Profile Sheet in Valley Guttered Godown - scope of work awarded to the petitioner - Repair Work or Original Work.
Whether under the contract terms of the contract between the parties, the contract work in question was a “original works contract” or a “contract work for repair and maintenance” as provided under Clause (A) and (B) of Sub-Rule (ii) of Rule 2-A and Sub- clause (ii) of Clause (a) of Explanation-1 of the Service Tax (Determination of Value) Rules, 2006? - HELD THAT:- The present contract was not a contract that had been bifurcated in two parts, first part being an independent contract for removing existing roofing materials and the second part, being an independent contract for installing fresh roof. Therefore, as the work constituted a consolidated contract for replacing the existing CI/CGI sheet roof with Profile Sheet roof, in the considered opinion of this Court, the present contract work awarded to the petitioner was rightly not treated by the respondents to be a contract for doing “original work” - Thus, the present contract in question was not an “original works contract” and therefore, it could only have been treated as a contract work for maintenance, repairs, and renewal, entailing service tax on 70% of the component of the gross value of the contract. It is clarified herein that this finding is limited to the interpretation of contract between the parties herein, and this finding is not intended to be a conclusive determination for interpretation of taxable entry under Service Tax as the Revenue has not been heard on the point.
Whether as per the Contract Agreement between the parties, the share of service tax payable by the respondents could have been passed on to the petitioner, thereby giving right to the respondents to make the necessary deduction of service tax from the bills, including running account bills, payable to the petitioner? - HELD THAT:- Under clause-36A of the Conditions of Contract, there appears to be a departure from the language used in Clause 36(i)(a) of the said Conditions of Contract on the ground that it envisages that the entire sales tax or any other tax levied on materials was to be borne by the petitioner, which is conspicuously absent in Clause 36A, inter-alia, providing that the tendered rates would be inclusive of all taxes payable under respective statutes. Thus, tax as envisaged under Clause 36A excludes those taxes, levies, etc. which are described in Clause 36 of the Conditions of Contract.
On a competitive reading of the ratio laid down by the Hon’ble Apex Court in the case of Hindustan Lever Limited [2016 (7) TMI 76 - SUPREME COURT] and Dewan Chand Ram Saran [2012 (4) TMI 457 - SUPREME COURT], it is seen that in the later case, the issue related to shifting of the burden service tax liability from statutory assessee to the service recipients and in that context, while interpreting the contract agreement between the parties, Clause 9.3 of the terms and conditions of the said contract was referred to and it was held that the said Clause 9.3 was the contractor’s acceptance of the tax liability arising out of his obligations under the contract. As the tax liabilities in respect of the job mentioned in the contract was the entire responsibility of the contractor, it was held in the said case that all taxes and levies was to be borne by the contractor - The Hon’ble Apex Court further held that there was nothing in law to prevent the appellant therein from entering into an agreement with the respondent therein, being the handing contractor, that the burden of tax arising out of obligations of the respondent under the contract would be borne by the respondent therein.
However, in the present case in hand, on reading Clause 36A leaves no room for doubt that the parties had contracted that ‘all tendered rates shall be inclusive of all taxes and levies payable under the respective statutes’. Therefore, when as per statute, i.e. Notification dated 20.06.2012, the liability of the respondent, as prescribed as 50% in respect of services provided or agreed to be provided in service portion in execution of works contract, being the liability the person receiving the service, there was no clause in the contract agreement by a virtue of which it can be said that there was a binding contract between the parties by virtue of which the burden of the tax liability falling upon the respondents would be borne by the petitioner, this Court is of the considered opinion that there was no contractual agreement between the parties so as to saddle the petitioner with the service tax liability which was statutory levied on the respondent.
Thus, as per the contract agreement between the parties, the share of service tax payable by the respondents could not have been passed on to the petitioner and therefore, the respondents did not get any right to make deduction of service tax (liability of the respondents’ 50% share of service tax) from the bills payable to the petitioner.
Thus, the respondents are restrained from deducting service tax (liability of the respondents’ 50% share of service tax) from the bills of the petitioner - the respondents are directed to refund the amount of service tax (liability of the respondents’ 50% share of service tax) already deducted from the running account bills of the petitioner within a period of 3 (three) months from the date of receipt of certified copy of this order - petition allowed in part.
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2019 (2) TMI 1867
Addition under the head ‘income from house property’ on the four unsold flats/ godowns by the assessee - HELD THAT:- It is an undisputed fact that assessee is in the business of Civil Engineers, Builders and Developers and had in the closing stock the four unsold flats. It is also an undisputed fact that these four flats were vacant throughout the year under consideration and no rental income was derived by the assessee during the year.
We find that on identical issue, the Co-ordinate Bench of Mumbai Tribunal in the case of Runwal Constructions [2018 (2) TMI 1707 - ITAT MUMBAI] after considering the decision of Neha Builders (P) Ltd. [2006 (8) TMI 105 - GUJARAT HIGH COURT] the decision of Mumbai Tribunal in the case of C.R. Developments Pvt. Ltd., [2015 (5) TMI 1161 - ITAT MUMBAI] the decision in the case of CIT Vs. Ansal Housing and Construction [2012 (11) TMI 323 - DELHI HIGH COURT] and other decisions cited in the order has held that when the unsold flats which are held as stockin- trade and when the income from such unsold flats on its sale is treated as “income from business”, then no notional annual letting value in respect of unsold flats can be taxed under the head of “income from house property”.
Revenue has not brought any material on record to demonstrate that the aforesaid decision of Mumbai Tribunal in thecase of M/s. Runwal Construction (supra) has been set aside / stayed by higher Judicial Forum.
In the present case AO was not correct in bringing to tax notional annual letting value of four unsold flats under the head “income from house property”. We therefore set aside the addition made by AO. Thus, the ground of the assessee is allowed.
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2019 (2) TMI 1866
Addition u/s 36(l)(iii) on account of certain advances given - assessee had made investment by way of advance for purchase of plots/flats - HELD THAT:- Assessee has demonstrated availability of sufficient own funds by pointing out that while the interest free advances given the assessee had made profits during the year which was more than sufficient for making the impugned advances. These facts have remained uncontroverted before us - assessee has all along contended that the Cash Credit account from which advances were made contained mixed funds with interest free funds being deposited immediately before the impugned advances being made.
CIT(A) has taken a microscopic view of the entire issue resting his findings only on the fact that CC account is an interest bearing account. The fact that sufficient own funds were available with the assessee and they were in fact used for making the advance established the user of interest free funds for making the impugned advances calling for no disallowance of interest. But we find that despite specific pleading made by the assessee in this regard the same was not addressed by the CIT(A).
Fact of interest free funds from the current account of the assessee being used for making the impugned advances, by transferring them to the cash credit account before the giving of advance ,as shown by the Ld.Counsel for the assessee before us, needs verification and examination. We therefore consider it fit to restore the issue back to the CIT(A) to examine, verify and consider the contention of the assessee and thereafter to decide the issue in accordance with law. Ground of appeal No.2 therefore is allowed for statistical purposes.
Disallowance u/s 14A - disallowance of expenses made u/s 14A purportedly incurred for the purpose of earning exempt income - HELD THAT:- Disallowance of interest expenses and administrative and other expenses incurred in relation to earning of exempt income u/s 14A read with Rule 8D(2)(ii) & 8D(2)(iii) of the Income Tax Rules,1962(in short referred to as “Rules”), respectively. No arguments have been made before us vis a vis disallowance of expenses made as per Rule 8D(2)(iii) of the Rules. The same is therefore upheld. As for the disallowance of interest as per Rule 8D(2)(ii), the arguments advanced by both the parties are identical to that advanced vis a vis disallowance of interest u/s 36(1)(iii) of the Act, with the assessee contending user of own funds for the purpose and the Revenue stating user of mixed funds. We have dealt with the arguments of both the parties at length at para 8-11 of our order above and our finding therein will apply to the present issue also.
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2019 (2) TMI 1865
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - whether the ICICI Bank UK PLC is a party to the agreement executed between the Financial Creditor and the Corporate Debtor. Is it directly a party or beneficiary of clauses in DASA? - HELD THAT:- The first facility agreement is between the petitioner-the Financial Creditor and AOCL (a group company of the Corporate Debtor). On 21.12.2007 a Put Option Deed was executed between the Quicknet Telecom Private Limited and the Corporate Debtor (as the Put Option Provider) and AOCL. According to the terms of the agreement AOCL was granted the option to sell 103,600,000 of its ordinary shares in the capital of AOCL issued with a par value of INR 1 each to, Quicknet Telecom Private Limited and secondly the Corporate Debtor was required to place in Escrow with an Escrow Agent, the documents in relation to the property at 3, Bhagwan Das Road, New Delhi-110001. On the same date an Escrow Agreement was executed inter alia between the Corporate Debtor, the Financial Creditor and IDBI Trusteeship Services Limited, whereby IDBI Trusteeship Services Limited was appointed as an Escrow Agent for custody of the documents, pursuant to the Put Option Deed dated 21.12.2007 - It is worthwhile to notice that the Financial Creditor has advanced loan to one of its group company namely AOCL. However, it is a party to the Escrow Agreement executed between the Corporate Debtor and the IDBI Trusteeship Services Ltd.
Whether in terms of the mechanism laid down under the Debt Asset Swap Agreement dated 20.12.2014, Undertaking dated 14.04.2015 executed by the Corporate Debtor in favour of the Financial Creditor and the amendment carried in Articles of Association of the Corporate Debtor with an undertaking to sell the property owned by the Corporate Debtor situated at 3, Bhagwan Das Road, New Delhi, the objection concerning privity of contract losses its significance? - HELD THAT:- The reading the Facility Agreement, the provisions of DASA dated 20.12.2014, the Undertaking dated 14.04.2015 along with the amendment carried by the Corporate Debtor in its Articles of Association no doubt is left that the Corporate Debtor has acknowledged the applicant-Financial Creditor as its Financial Creditor and therefore the terms of Loan Agreement in respect of the other group companies stand incorporated. The aforesaid conclusion emerges from reading of clause 5 and its sub clauses of DASA dated 20.12.2014, clause 2.1, 2.3 & 2.4 of the Undertaking dated 14.04.2015 and Article 34 (c) (i) of the Articles of Association.
Thus, the petitioner satisfies the requirement of Section 5 (7) of the Code as it is a person to whom financial debt is owed or a person to whom such debt has been legally assigned or transferred. Financial Debt means a debt along with interest which has been disbursed against the consideration for the time value for money - The Limitation for the purposes of enforcing payment of money secured by a mortgage or otherwise charged upon immovable property is twelve years. In that regard Article 62 of the Schedule appended to the Limitation Act may be relied upon. Therefore, going by the provisions of the Limitation Act as made applicable by Section 238 (A) of the Code the petition is within the period of limitation.
It is evident from the record that the application has been filed on the proforma prescribed under Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code. We are satisfied that a default amounting to crores of rupees has occurred within the meaning of Section 4 of the Code and the application under sub section 2 of Section 7 is complete; and no disciplinary proceedings are pending against the proposed Interim Resolution Professional. Thus, the application warrant admission as it is complete in all respects.
Petition admitted - moratorium declared.
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2019 (2) TMI 1864
Clandestine Removal - MS Ingots - by-product – ‘runner and risers’ - allegation that some of these ‘Runner & Risers” were removed on payment of duty and the balance was captively consumed in the manufacture of final products i.e. M.S. Ingots - determination of input-output ratio - Corroborative evidences or not - extended period of limitation - HELD THAT:- Save and except the theoretical calculation and /or based on some production ratio stated by the assessee in their ER-5 Return, Revenue has worked out the standard production, which should have been achieved and has accordingly worked out the short production as clandestine production and its removal without payment of duty.
This Tribunal has time and again held that such standard has been laid down only to provide a starting point of investigation and no liability can be fastened on the assessee in absence of corroborative evidence of clandestine manufacture and removal - Admittedly, in the facts and circumstances of the present case, there is not a single instance of either clandestine manufacture and/or removal found by the Revenue.
Appeal dismissed - decided against Revenue.
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2019 (2) TMI 1863
Levy of Central Excise Duty - Debonding of unit - SEZ unit - cement and iron & steel procured duty free for construction and development of their unit - capital goods or not - HELD THAT:- The cement and steel are not included in the definition of capital goods as defined in rule 2(1)(e) of SEZ Rules, 2006. Further, cement and steel also do not fall under the category of capital goods, raw materials, components, consumables, spares and finished goods. Thus, the Court below have erred in considering cement and steel as capital goods.
Appeal allowed - decided in favor of appellant.
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2019 (2) TMI 1862
Disallowance u/s 36(1)(iii) - interest on borrowed capital on the ground of diversion of borrowed funds - Addition holding non business purpose - HELD THAT:- perused the joint development agreement entered between appellant and the said M/s. TIPL, wherein we do not find any stipulation that appellant has to pay interest free advances to the said company. Furthermore, the said joint development agreement is not a registered document. It is also a matter of record that the said payment was treated as a deemed dividend in the hands of M/s. TIPL. However, the contention of the ld. Counsel that it result in double taxation in the hands of both cannot be accepted, as in the present case, what was disallowed was only the interest claim. Thus, the appellant had failed to establish the business expediency in advancing the money to the holding company.
The onus always will be on the assessee to satisfy the AO that the loans raised by the appellant were used for its business purpose. Failure to discharge his onus would result into the disallowance of interest claim as held by the Hon’ble Punjab & Haryana High Court in the case of Abhishek Industries [2006 (8) TMI 123 - PUNJAB AND HARYANA HIGH COURT] - Decided against assessee.
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2019 (2) TMI 1861
Extended period of limitation - Valuation - inclusion of reimbursable expenses in the case of Cargo Handling Services - HELD THAT:- The matter needs to be remanded back to the Original Adjudicating Authority for fresh consideration - Appeal allowed by way of remand.
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2019 (2) TMI 1860
Principles of unjust enrichment - Refund of Excise Duty - amount credited to consumer welfare fund - goods supplied for installation and erection of solar power plant - benefit of N/N. 15/2010-CE dated 27.02.2010 - HELD THAT:- The appellant have made a prima facie case that they have not passed on the incidence of duty to the buyer of the goods, for which they are claiming refund under Notification No. 15/2010-CE - Accordingly, these appeals are allowed by way of remand to the Original Adjudicating Authority, with a direction to cross verify the certificate issued by the buyer of the goods, issued from their jurisdictional Central Excise Authority/ GST Authority and, accordingly, pass a reasoned order in accordance with law.
Appeal allowed by way of remand.
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2019 (2) TMI 1859
Principles of Natural Justice - Clandestine Removal - SSI Exemption - return of un-relied upon documents - demand based on assumptions and presumptions - Confiscation - penalty - HELD THAT:- The sole ground for the Revenue for seizure of the goods found lying in the appellants’ factory is that the said goods were meant for clandestine removal. However, apart from the fact that the same were not as yet entered in the records, there is no evidence produced by the Revenue to reflect upon the assessees’ mala-fide intention that the said goods were not entered with an intention to clear the same without payment of duty. The said stand of the Revenue is based upon only assumptions and presumptions.
Further in the absence of any confirmation of demand of duty or directions to the appellant to clear the said goods on proper payment of duty, confiscation of the same or imposition of penalty was neither warranted nor justified.
Appeal allowed - decided in favor of appellant.
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2019 (2) TMI 1858
Exemption u/s 11 - whether the activity carried on by the appellant would amount to an activity in the nature of trade, commerce or business to deny registration under section 12A? - appellant, which is a statutory authority constituted under the provisions of the Karnataka Urban Development Authorities Act, 1987 (hereinafter referred to as "KUDA Act", for short), filed an application for registration under section 12A(1)(aa) - HELD THAT:- Under section 37 of the Act, the State Government can also transfer to the authority, lands, belonging to it for the purpose of development scheme. There are various provisions under the Act which are supplemental to the main object and purpose of the Act. The authority is also empowered to develop sites, layouts and allot sites to the eligible persons, as well as auction sites and generally carry out the objects and intentions of the KUDA Act.
The activity of the appellant is thus a charitable activity as defined under the expression "charitable trust" under section 2(15) of the Act. The activity of the appellant comes within the scope and ambit of the expression "the advancement of any other object of general public utility". The activity carried on by the appellant does not involve an activity which is in the nature of trade, commerce or business so as to come within the mischief of proviso to section 2(15).
As already noted, the appellant is a statutory authority constituted under the provisions of the KUDA Act, whose object is to establish and develop urban areas in an orderly fashion. Even though the appellant-development authority may be involved in developing various residential or commercial areas and thereby preparing house sites or commercial sites and even alienating such sites through auction or through allotting to eligible persons, the said activity cannot be held to be profit motive so as to come within the mischief of the expression trade, commerce or business. The upshot of the aforesaid discussion is that the appellant-assessee is a statutory authority created under the Karnataka Urban Development Authorities Act, 1987.
The purpose and intent of creation of the appellant-authority is to establish urban areas in Belgaum in a planned manner. The appellant-assessee being a statutory authority is under the control of the State Government, which has the power to issue directions to the authority as per section 65 of the Act. The said directions are those, which are necessary or expedient for carrying out the purposes of the Act and it shall be the duty of the assessee to comply with such directions. Even the utilization of funds by the assessee is fully controlled by periodical instructions issued by the Government. The funds standing in the name of the assessee is under the absolute control of the Government as the assessee functions in a fiduciary capacity.
Therefore, following the judgment of Bagalkot Town Development Authority [2015 (12) TMI 1422 - KARNATAKA HIGH COURT], which has in turn followed the judgment of the hon'ble Supreme Court in the case of Gujarat Maritime Board, it is held that the assessee, being a statutory authority, created under the Karnataka Urban Development Authority Act, 1987 has to carry out its activity towards public purposes. Therefore, the argument advanced on behalf of the Revenue that the assessee was not entitled for exception under section 11 of the Act, is untenable and is rejected. In the circumstances, substantial question of law No.1 is answered in favour of the assessee.
Applicability of the relevant rule in making an application for registration of charitable or religious trust - Non filing of audited accounts - HELD THAT:- The accounts need not be certified by a chartered accountant. The same is a requirement under rule 17B of the Rules wherein the said audit report is required to be furnished when registration is required under rule 17B of the Rules. That the appellant has sought for registration under section 12A(1)(aa) of the Act and hence it is only rule 17A of the Rules which applies.
Respondent very fairly submits that there has to be compliance with rule 17A of the Rules and there can be no relaxation in that regard and if there is any compliance to be made by the appellant then this court may grant an opportunity to the appellant to comply with the said Rule. He, however, submitted that any non-compliance of the requirements of rule 17A of the Rules would not entitle the appellant from seeking registration under section 12A(1)(aa) of the Act. Consequently, substantial question of law No. 2 is answered by holding that the appellant would have to comply with all requirements stipulated under rule 17A of the Rules. If there has been any non-compliance with the same, then, the appellant is at liberty to comply with the said requirements in accordance with law.
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2019 (2) TMI 1857
Invocation of Extended period of limitation - Government Entity - non-payment of service tax - renting of immovable property services - demand along with interest and penalty - HELD THAT:- The appellant is admittedly an educational institution, which is wholly owned by Government of India. As such, in terms of the Hon’ble Rajasthan High Court’s decision COMMISSIONER CENTRAL EXCISE, JAIPUR-I VERSUS RAJASTHAN RENEWABLE ENERGY CORPORATION LTD [2018 (8) TMI 1690 - RAJASTHAN HIGH COURT], no mala-fide can be attributed to them so as to justifiably invoke the longer period of limitation - As such, the demand beyond the normal period is hit by the provisions of Section 73 of the Finance Act, 1994 and is unsustainable.
Similarly, in terms of the said order of the Hon’ble Rajasthan High Court, the penalty imposed upon the appellant is also liable to be set aside.
Thus, the demand falling within the normal period is upheld alongwith interest and the demand falling beyond the normal period is set aside along with setting aside of interest and entire penalty - appeal allowed in part.
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2019 (2) TMI 1856
Extended period of limitation - works contract - Repair & Maintenance Services - contract indicated the value of the services as also the value of the goods separately, appellant discharged service tax liability only on the value of the service - demand of service tax on value of goods as well - bonafide belief or not - demand raised on the basis of extended period of limitation - HELD THAT:- An identical issue was the subject matter of the Tribunal in M/S. ELECTROTEC CONTROLS, M/S. KAVERI CONSTRUCTIONS CO., M/S. HEENA ENTERPRISES, M/S. SCIENTECS PROCESS CRONTROL VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, ALLAHABAD [2018 (9) TMI 1380 - CESTAT ALLAHABAD] wherein identical services were being provided to another Thermal Power Station, Tribunal in the said order observed that appellant were duly registered with the department and were filing the ST-3 returns by showing payment of Service Tax on the value of the services as indicated in the contracts entered by them with the said Public Sector Undertaking. In such a scenario the appellant was entertaining a bona fide belief and there was no mala fide on their part so as to justifiably invoke the longer period of limitation.
The demand is barred on limitation and the matter remanded to Original Adjudicating Authority to re-quantify the demand falling within the limitation period, if any. The appellant is also at liberty to raise the issue of payment of VAT in respect of the demand falling within the normal period - appeal allowed by way of remand.
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2019 (2) TMI 1855
Principles of natural justice - necessary information as sought by respondent no.3 not provided - only contention urged on behalf of the petitioners for assailing the above order is that the petitioner company has not been afforded an opportunity to be heard as required under Section 234 (7) of Companies Act - HELD THAT:- This Court cannot be oblivious of the fact that there are serious allegations against the petitioner company and several complaints were received. The petitioner company has been duly informed of the allegations that it had accepted money from public for allotment of land /plot/development of infrastructure and had failed to discharge its obligations. It is also alleged that the money collected by the petitioner company amounted to the petitioner company floating a collective investment scheme.
The impugned order dated 27.03.2012 is set aside - It is directed that the present petitions will be treated as a representation by the Registrar of Companies, who shall afford the petitioner company an opportunity of being heard - Petition allowed by way of remand.
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2019 (2) TMI 1854
Contempt jurisdiction - whether the learned Single Judge was right in travelling beyond the four corners of the order in W.P. No. 3874 of 2016 dated 03.02.2016 and directing the Appellant-Board to pay the compensation at the rate of ₹ 600/- per sq. ft.? - HELD THAT:- The Single Judge fell in error in entertaining the contempt petition and further erred in directing the TWAD Board to pay compensation at the rate of ₹ 600/- per sq. ft. which works out to more than ₹ 4,00,00,000/-. It is public money and having implications on the public exchequer, the public money cannot be allowed to be taken away by an individual by fling contempt petition thereby arm-twisting the authorities. The order passed by the learned Single Judge affirmed by the Division Bench is ex-facie erroneous and liable to be set aside.
Appeal allowed.
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2019 (2) TMI 1853
Business Auxiliary Services - incentives received in lieu of sale of Computer and it's allied products from various companies manufacturing the said products - HELD THAT:- The proceedings initiated through earlier Show Cause Notice dated 20.10.2014 culminated into passing of Order-in-Appeal No. 232-ST/APPL/LKO/2018 dated 27.03.2018. In the said Order-in-Appeal, ld. Commissioner (Appeals) has held that the appellant was a dealer in electronic goods manufactured by various companies like – APPLE, ACER and that the appellant purchased the goods from National Distributor of said Manufacturers and resold the same in the market and that all the Incentives, Commissions & Discounts received by the appellant were based on volume of sale effected by the appellant and therefore, the said consideration was in respect of sale and purchase transaction and therefore, there was no ground to charge Service Tax on the said Incentives.
The statement of demand dated 18.04.2016 was based on the grounds stated in the earlier Show Cause Notice dated 20.10.2014 and the said grounds were found to be unsustainable by ld. Commissioner (Appeals) in said Order-in-Appeal dated 27.03.2018 - there are no merits in the present order-in-appeal - appeal allowed - decided in favor of appellant.
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2019 (2) TMI 1852
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - financial debt or not - HELD THAT:- Initially the Petitioner filed petition u/s 7, IBC claiming himself to be a Financial Creditor, but on perusal of the record it appears that the Petitioner has given notice u/s 9, IBC pretending himself to be an Operational Creditor. The Petitioner has not filed any document to substantiate its claim of being a Financial Creditor and debt as Financial Debt. Petitioner’s claim is totally based on the oral submission that he has given a credit to the Corporate Debtor, which is evident from the statement of account of Financial Creditor, from which amount has been transferred to the Operational Creditor’s account. It is pertinent to mention that only by transferring amount to the account of Corporate Debtor, a person cannot claim to be a Financial Creditor. There are no documents to prove a financial debt.
Instead of opposing these contradictions, the Corporate Debtor has admitted the liability to pay. On perusal of the record, it appears that the petition is collusive - petition dismissed.
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2019 (2) TMI 1851
Grant of Statutory Bail - investigation is not completed and Final Report is not filed within the statutory period - Section 167(2) of the Code of Criminal Procedure - imposition of condition for cash security at the time of granting Statutory Bail - indefeasible right accruing in favour of the accused for being released on bail - extension of detention period - HELD THAT:- A conspectus of the judgment in the cases of UDAY MOHANLAL ACHARYA VERSUS STATE OF MAHARASHTRA [2001 (3) TMI 1032 - SUPREME COURT], RAJNIKANT JIVANLAL PATEL VERSUS NARCOTIC CONTROL BUREAU [1989 (6) TMI 227 - SUPREME COURT] would clearly show that on the expiry of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused person for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused person is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate. The right of an accused person to be released on bail after the expiry of the maximum period of detention provided u/s. 167 can be denied only when an accused person does not furnish bail.
If an accused person is ready to offer bail, once the stipulated period for the investigation had been completed, then the Magistrate no longer has the authority to extend the period of detention beyond 90 days or 60 days, as the case may be and he has no option except to release the accused on bail.
Even though the petitioner was granted bail, by considering the merits of the case and by imposing certain conditions, the same was not able to be complied with by the petitioner and as a result of the same the petitioner was not able to come out on bail. The same will not stand in the way of the petitioner to file a fresh bail petition u/s. 167 (2) of Cr.P.C, once the statutory period expires and no final report is filed by the respondent police. The earlier order has worked itself out and the petitioner is now armed with a statutory right to seek bail as a matter of right. The accused person should be released on bail if she is prepared to and does furnish the bail which has been termed by judicial pronouncements to be "compulsive bail" and such bail would be deemed to be a bail under chapter XXXIII. Therefore, the petitioner has every right to invoke the provisions of Section 167(2) of the Code of Criminal Procedure, and seek for Statutory Bail independently.
This Court concurs with the view expressed by this Court in its judgment in P.L. Jayaraj Vs. State [2018 (11) TMI 1789 - MADRAS HIGH COURT], where in this Court has categorically held that the indefeasible right given u/s. 167(2) cannot be extinguished by imposing any onerous conditions. In this case even though the petitioner was granted bail, she was not able to come out on bail since she was not able to comply with the condition directing her to make a cash deposit of ₹ 20 lakhs. If the very same condition of cash security is to be imposed on the petitioner while considering the Statutory Bail, it will indirectly defeat the indefeasible right of the petitioner and will prevent the petitioner from coming out on bail. The Court below failed to appreciate this fundamental aspect while dismissing the bail petition filed by the petitioner. It is seen from records that the petitioner is a permanent resident of Coimbatore, and all the properties belonging to the petitioner and her family is in and around Coimbatore and this Court is convinced that the petitioner cannot abscond, if the bail is granted by imposing reasonable conditions.
The petitioner is entitled to be released on Statutory Bail and the petitioner is also prepared to furnish bail, this Court is inclined to grant bail to the petitioner while imposing certain conditions.
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2019 (2) TMI 1850
Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - HELD THAT:- The Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use. Upon enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] Ltd can be extended only to those dealers in that are party to the decision. This stand is unacceptable in so far as the decision of this Court as well as other High Courts, one of which has been confirmed by the Supreme Court, are decisions in rem, applicable to all dealers that seek benefit thereunder, of course, in accordance with law.
Petition allowed.
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9911796707
