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Showing 261 to 280 of 1183 Records
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2021 (6) TMI 923
Bogus STCG - Disallowance of taxable as Short Term Capital Gain from sale of equity shares chargeable to tax U/s. 111A of the Act And benefit u/s. 10(38) - HELD THAT:- Contract note of Eden Financial Services are issued in April, 2009 and the payments have been made almost after 21 months and that too at the time when the share have been sold by the assessee. Surprisingly payment for the purchase has been made after completing 3 transactions of sale of the equity shares of VIP Industries Limited. So one cannot deny that there is some flow in this transaction. However the fact remains that the VIP Industries Limited is a listed company and as on date also it is regularly traded and as submitted by the Ld. Counsel for the assessee the current price are almost four times of the price the assessee received at the time of sale. So sale transaction is far from any dispute as it has been entered through the registered broker on recognized stock exchange and consideration received. As far as purchase is concerned there is a purchase on record and 9000 equity shares have come into the Demat account of the assessee and consideration has been paid. So one cannot doubt the transaction of purchase and sales but doubt can be raised about the period of holding of the equity shares..
So in this case the seller of the shares i.e. Eden Financial Services is itself in dispute having no authority to trade but the moment the share are transferred to the Demat account then from that moment there is hardly any possibility to question the genuineness of purchase unless until anything contrary had been unearthed by the revenue authorities.
Since the genuineness of sale is not doubted, the company of which the equity shares are sold i.e. VIP Industries Limited is not a penny stock company and sale effected through registered broker, we are satisfied with the genuineness of sale transactions. As regards purchase which is made by the payment through account payee cheque, there is a corresponding receipt of 9000 equity shares of VIP Industries Limited in the Demat account of the assessee.
Had the identity of the broker has not been in doubt then this transaction of earning LTCG would be covered under the provision of Section 10(38) of the Act but since the identity of broker is in dispute the alleged transaction needs to be examined with the period of holding of equity shares in the Demat account of the assessee. As the identity of seller is in doubt and 9000 equity shares are held in the Demat account for less than 12 months, the net gain deserves to be taxed as Short Term Capital Gain.
We find that similar type of issue came up before this Tribunal in the case of Smt. Annapurna Maheshwari V/s. ACIT [2018 (11) TMI 131 - ITAT INDORE]
Thus issue of instant appeal hold that the assessee had earned capital gain after making a genuine sales and claiming cost of acquisition of shares by payment through banking channel and transaction of purchase and sale effected through Demat account. Since the source of purchase has been disputed as the registration of broker was cancelled much before the transaction of purchase made by the assessee, period of holding of equity share is reckoned from the date on which the 9000 equity shares of VIP Industries Limited were credited to the Demat account of the assessee up to the date when the shares were sold and equity shares sold were debited to the Demat account. This period in the instant case is less than 12 months, we therefore hold that the capital gain is "Short Term Capital Gain" liable to be taxed u/s. 111A of the Act.
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2021 (6) TMI 922
Revised claim made by the assessee in course of assessment proceedings - Disallowance of deduction claimed u/s 80P(2)(d) - HELD THAT:- The issue is no more res integra. Now it is fairly well settled that assessee can make a fresh/revised claim not only before the assessing officer, but even before the appellate authorities. In fact, in the decision of the Hon’ble Apex Court relied upon by the assessing officer and learned Commissioner of Income Tax (Appeals), it has been made clear that there is no fetter on the appellate authority to consider a revised/fresh claim of the assessee. In case of CIT vs Prithvi Brokers & Shareholders [2012 (7) TMI 158 - BOMBAY HIGH COURT] the Hon’ble jurisdictional High Court has held that the assessee can make a revised/fresh claim in course of proceedings before the assessing officer and appellate authorities.
Denial of assessee’s claim of deduction under section 80P(2)(d) is interest was earned from a co-operative bank - In our view, the aforesaid reasoning of the assessing officer would not hold water as in various case laws cited by the learned counsel for the assessee, the Tribunal has taken a consistent view that co-operative banks are primarily co-operative societies; hence, any interest/dividend earned from such co-operative banks would be eligible for deduction under section 80P(2)(d) of the Act. - Decided in favour of assessee.
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2021 (6) TMI 921
Levy of Service Tax - construction of residential complex services for the period October, 2010 to March, 2014 - advance maintenance charges - club membership charges - amount received on account of cancellation of booking for the period October, 2010 to March, 2012.
Construction of residential complex services for the period October, 2010 to March, 2014 - HELD THAT:- It is not in dispute that the constitutional validity of Service Tax on construction of residential complex service has been challenged before the Hon'ble Bombay High Court and the Hon'ble Bombay High Court vide its judgment reported as MAHARASHTRA CHAMBER OF HOUSING INDUSTRY AND ANOTHER VERSUS UNION OF INDIA AND OTHERS [2012 (1) TMI 98 - BOMBAY HIGH COURT] upheld its validity. Now the issue is pending before the Nine Member Bench of the Hon'ble Supreme Court - the issue is remanded to the adjudicating authority for decision on merit on the basis of outcome of the judgment to be delivered by Nine Member Bench of the Hon'ble Apex Court.
Advance maintenance charges - Club membership charges - HELD THAT:- It is categorically stated that they can establish before the adjudicating authority about the utilization of the said charges collected for the purpose mentioned in the respective agreement entered with the purchasers as per Maharashtra Ownership of Flats Act, 1963. Prima facie, we find force in the contention of the learned C.A. for the appellant. Therefore, to examine the evidences claimed to have been placed earlier and that would be placed as and when asked by the adjudicating authority to establish the fact of utilization of other charges as per the Act, the matter needs to be remanded to the adjudicating authority for scrutiny of the evidences.
Amount received on account of cancellation of booking - period October, 2010 to March, 2012 - HELD THAT:- The learned Commissioner has travelled beyond the scope of allegations labeled in the show-cause notice. There is merit in the contention of the learned AR for the Revenue. The point raised by the appellant in their reply to the show-cause notice that the amended definition of 66E(e) is not applicable to the facts of the present case, since the demand pertains to the period prior to 01.07.2012 was not considered as no specific observation in this regard has been made in the impugned order - this issue is also remanded for consideration.
Appeal allowed by way of remand.
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2021 (6) TMI 920
Rectification of mistake - typographical error - mistake apparent on the face of record or not - valuation of supply of ‘consumables’ - HELD THAT:-This Tribunal in the appellant’s own case for the earlier period 2007-08 to March, 2013 in LARSEN & TOUBRO LTD. VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX NAGPUR [2020 (4) TMI 103 - CESTAT MUMBAI], considering the submissions at length formulated the issue at para 4 of the order after analyzing the principles of law settled by the Hon'ble Supreme Court in various judgments, held that it is very clear that the supply of ‘consumables’ by the recipient does not constitute ‘consideration’ to which value was required to be assigned for enhancing the ‘gross amount charged’ in section 67 of Finance Act, 1994. Neither the circulars of Central Board of Excise & Customs, advising the inclusion of all expenditure incurred for rendering services, nor the expansion of ‘consideration’ to encompass ‘consumables’, that does not add to the assets of the provider of service, have sanction of law.
Appeal allowed - decided in favor of appellant.
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2021 (6) TMI 919
Revocation of Customs Broker License - forfeiture of security deposit - levy of penalty - enhancement of the value of the said second hand vessel - failure to intimate the relation between Shri Anil Vohra, Chartered Engineer and the Customs Broker - contravention of Regulations 11(d), 11(e) and 11(f) of CBLR, 2013 - neutral party - Circular No. 25/2015-Cus dated 15.10.2015 - HELD THAT:- It seems that the adjudicating authority in the impugned order merely carried away by the use of the expression ‘neutral party’ mentioned in para 9 of the said Circular but not examined its contextual use by reading the circular as a whole. A plain reading of para 9 of the Circular dated 15.10.2015, makes it crystal clear that the procedure for computing the value of second hand machinery should reflect the commercial reality resulting into a fair value and needs to be arrived through uniform practice by all custom houses. To achieve such uniformity, it has been emphasized that inspection/ appraisement report should be from a qualified neutral party. Further reading it along with subsequent paras 10 and 11, it would be more clear that the certificate issued by the Chartered Engineer, shall in all circumstances whether given by Port of Loading or in India be accepted and no Customs house should insist that inspection/ appraisement report should be obtained from a particular Chartered Engineer. Keeping in mind the guidelines and applying the same to present case, it was found that Shri Anil Vohra is an empanelled Chartered Engineer by the customs authorities to determine the value of second hand imported machinery in the Mumbai Custom House.
Neutral party - HELD THAT:- The adjudicating authority confirmed the charges against the appellant-Customs Broker observing that since Chartered Engineer Shri Anil Vohra is also a consultant to one of their related company, therefore, not a neutral party to the transaction of import. The said interpretation is fallacious. The inspection/appraisement of the second hand machinery to ascertain its value by a neutral party definitely refers to a person, who is not connected with the importer or the seller of the imported goods, precisely with the transaction of the imported goods whose value he is asked to determine. It cannot be read to mean a person employed and remotely connected to the Customs Broker, who appoints the Chartered Engineer on behalf of the importer to assess the value, in absence of appraisal report at the load port, be said to be not a neutral person for the said job.
There are no allegation in the notice nor any finding in this regard on the correctness of the value determined by the Chartered Engineer alleging bias on his part. Nor any second opinion/report obtained by the Revenue reflecting a higher or different value of the imported goods than determined by shri Anil Vohra. In these circumstances, in our view the observation of the learned Commissioner that charges under regulations 11(d), 11(e) and 11(f) of CBLR, 2013 stands proved against the appellant cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2021 (6) TMI 918
Validity of summons issued u/s 70 - Proper officer - search/inspection proceedings u/s 67 of the CGST Act - EOU Scheme - Refund/allow recredit - Refund of duty paid on the goods exported towards fulfillment of the export obligation - fraud or any willful misstatement or suppression of facts - Section 2(91) of CGST Act read with Section 20 of IGST Act - HELD THAT:- From the bare reading of Section 70 of the CGST Act, it clearly emerges that the proper officer has the power to summon any person whose attendance he considers necessary either to give evidence or to produce the documents in any inquiry in the same manner in the case of a Civil Court under the CPC. Now, as per the definition of 'proper officer' as contained in Section 2(91), a 'proper officer' in relation to any function to be performed under the CGST Act means the Commissioner or the officer of the Central Tax, who is assigned that function by the Commissioner in the Board - the respondent No.3 is a proper officer in relation to the function to be performed under the CGST Act as contemplated under Section 2(91), and as such, was entitled to issue summons under Section 70 of the CGST Act in connection with the inquiry initiated against the petitioner.
In the instant case, the Board has assigned the officers to perform the function as proper officers in relation to various Sections of CGST Act and the Rules made thereunder by issuing the Circular in question, the question of issuing Notification for delegation of powers by the Commissioner as contemplated under Section 167 of the CGST Act does not arise. Mr.Rastogi appears to have misread the powers of the Board to assign the officers to perform the function as proper officers in relation to the various Sections of the CGST Act, as the delegation of powers by the Commissioner to the other authority or the officer as contemplated in Section 167 of the CGST Act. The Court, therefore, does not find any substance in the submission of Mr.Rastogi that the respondent No.3 was not the ‘proper officer’ as per the definition contained in Section 2(91) of the CGST Act, and therefore, had no powers to issue summons under Section 70 of the CGST Act.
Heavy reliance on the interim order passed by this Court in case of Bhumi Associates (supra), it may be noted that apart from the fact that the said order is an interim order, the guidelines issued in the said interim order appear to have been issued in connection with the voluntary payment made by the person during the course of search and seizure proceedings conducted under Section 67 of the CGST Act. Admittedly, no search and seizure proceedings have taken place under Section 67 of the Act, in case of the petitioners. In the instant case, the petitioners having made payment under Section 74(5), they appear to have informed the Proper Officer of such payment in the Form GST DRC-03 (Annexure-F) as contemplated in Rule 142(2) of the said Rules.
Petition dismissed.
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2021 (6) TMI 917
Classification of imported goods - Art paper of different descriptions - falling under CTI 4810 or under under 4811 - HELD THAT:- It is evident that the form, size, GSM and any other special characteristic plays a major role in classification of the paper. The detailed Packing List for the Bill of Entry No.3192548, dated 18.03.2021, forwarded by the supplier suggested that the imported cargo contains different descriptions of Art paper falling under 481014 and 481019 depending upon size - It is evident from the seizure that the importer had classified the Art paper of different descriptions falling under CTI 4810, which is definitely “Stock Lot” of paper, as per DGFT Notification No. 45/2015-20 under 4811 to circumvent the prohibition imposed.
The findings of the order passed by the learned Single Bench of this Court in M/S. JAYASAKTHI PAPERS VERSUS THE COMMISSIONER OF CUSTOMS, THE ASSISTANT COMMISSIONER OF CUSTOMS, THE ASSISTANT COMMISSIONER OF CUSTOMS, (GROUP-2) [2021 (4) TMI 83 - MADRAS HIGH COURT] was completely ignored where it was held that by introducing an impermissible yardstick namely, GSM variation, the respondents have arrived at a finding that the imported goods constitute a stock lot. This is patently illegal.
The respondents are directed to release the goods, by granting liberty to the parties to adjudicate the matter - Petition allowed - decided in favor of petitioner.
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2021 (6) TMI 916
Maintainability of suit - suit instituted by authorized person or not - Order VI Rule 14 as well as the provisions of Order XXIX Rule 1 CPC - right, title and interest over the suit land or not - recovery of possession of the suit land from the defendant - Whether the learned first appellate court while arriving at the finding that the suit has not been instituted by authorized person of the company overlooked the provisions of Order VI Rule 14 as well as the provisions of Order XXIX Rule 1 CPC? - HELD THAT:- The trial court decided the suit vide judgment and decree dated 22.3.2016. The order satisfying the criteria stipulated in Section 560(7) of the Companies Act, 1956 was passed on 4.10.2010 and on the strength of the said order the company received its ‘active’ status w.e.f. 30.10.2007 prior to the date of filing the suit on 17.12.2008. Accordingly the first appellate court rightly took note of the subsequent development and correctly held that company was in existence on the date of filing the suit. The appellate court has the power under Order XLI Rule 33 CPC to pass such order which ought to have been passed by the trial court on the basis of Section 560(7) Companies Act, 1956 which is the mandate of the law. The power under Order XLI Rule 33 CPC of the appellate court is wide in order to do complete justice to the parties in a lis and the first appellate court is well within its power which requires no interference.
Whether reversal of the finding of issue No. 2 is proper on the face of the pleadings of the parties to the suit? - HELD THAT:-The suit is for declaration of right, title and interest of the plaintiff appellant company over the suit land and other consequential reliefs like recovery of possession, injunction etc. The plaintiff appellant in its plaint pleaded that the suit land was purchased from one Jagannath Paul who executed the Ext.3 sale deed and delivered possession. So the plaintiff appellant derived the title over the suit land upon execution of the sale deed by the vendor Jagannath Paul. On the other hand the defendant respondent in his written statement denied purchase of the suit land vide registered sale deed No. 240/1985 dated 2.2.1985 from Jagannath Paul and the delivery of possession by the said vendor. The trial court framed issue No. 2 whether the plaintiff has right, title and interest over the suit land upon consideration of the pleadings of the parties to the suit - The trial court held that Ext.3 being a registered document so it was presumed that the Ext.3 was validly executed. The defendant respondent failed to dislodge the said presumption. Then the trial court referred to a particular statement made by the defendant respondent as DW 1 in his cross examination that he had no document of purchase of the suit land from its owner i.e. plaintiff and on the basis of the said deposition held that the defendant respondent admitted the ownership of the plaintiff appellant over the suit land.
The trial court was wrong in putting the burden on the defendant respondent to dislodge the presumption which the registered document carry u/s 114(c) of the Evidence Act. Admission of the defendant respondent of the title of the plaintiff appellant cannot discharge the onus of plaintiff appellant to prove the execution of Ext. 3 moreso when the plaintiff appellant failed to prove its possession over the suit land since the date of purchase. There is no specific mention in regard to the date of dispossession of the plaintiff appellant from the suit land by the defendant respondent who enjoyed the status of ‘land holder’ under the Land Revenue Regulation after being granted the kheraj periodic patta to him.
There is no denial of execution of the sale deed by the executant, Jagannath Paul. It is not mandatory that a sale deed requires attestation by witnesses and as such the manner and proof of execution of the sale deed does not fall within the sweep of Section 68 of the Evidence Act. But when the fact of execution is disputed in the form of the stand taken by the defendant respondent that he specifically denied purchase of the suit land vide regd. sale deed No. 240/1985 (Ext 3), then irrespective of the stipulation in Section 68 of the Evidence Act if there are any attesting witnesses or scribe, examination of such witnesses become necessary to prove the execution of the sale deed - In view of the discussions the second substantial question of law is decided against the plaintiff appellant thereby upholding the finding of the first appellate court in issue No. 2.
The first appellate court rightly considered the pleadings of the defendant respondent wherein the ownership of the plaintiff appellant was denied and moreover he failed to prove the fact that his possession over the suit land was hostile and adverse to the plaintiff appellant and it was within the knowledge of the representatives of the plaintiff appellant including its director, Suresh Kumar Jain that the same was adverse to the interest of the plaintiff appellant from the date of entry of the defendant respondent. The learned first appellate court took note of the pleadings in the plaint and held that the suit was filed within the period of limitation.
Thus, the suit filed by the plaintiff appellant is maintainable but the plaintiff appellant failed to prove his title over the suit land for which the plaintiff appellant is not entitled for the reliefs. The suit is dismissed.
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2021 (6) TMI 915
Reopening of assessment u/s 147 - TP Adjustment - order impugned passed by the Transfer Pricing Officer with regard to the reference made by the Assessing Officer regarding certain international transactions or otherwise - suo-motu powers conferred to the Transfer Pricing Officer under Sub-Section 2B of Section 92 CA - Whether re-opening of assessment proceedings would not fall under Sub-Section 2B or Sub-Section 2C of Section 92 CA of the Act.? - HELD THAT:- When the assessment includes reassessment, the Assessing Officer while conducting the reassessment proceedings, is undoubtedly empowered to seek further informations or details to cull out the truth and the very purpose and object of reassessment contemplated under Section 147 of the Act is to ensure that the assessee pay the tax as applicable. The original assessment is made pursuant to the return of income filed by the assessee. The scope of scrutiny or enquiry at the time of original assessment is entirely different. Thus, in the event of re-opening of assessment and during re-assessment, the authorities competent necessarily have to cull out more details and informations from the authorities concerned for the purpose of ascertaining the truth regarding the tax escaped assessment - the purpose of Section 147 for reopening of assessment cannot be restricted nor the power of reassessment of the Assessing officer for collecting the evidences or materials or informations from the authorities concerned cannot be crippled down by wrongly interpreting the other provisions of the Income Tax Act.
Constructive interpretation is imminent in such circumstances in order to ensure that the purpose and object of the Act is met with in its letter and spirit.
The impugned order is not a suo-motu proceedings initiated by the Transfer Pricing Officer under Sub-Section 2B of Section 92CA of the Act and therefore, Sub-Section 2C of Section 92CA of the Act would not be applicable. The circumstances contemplated under Sub-Section 2B of Section 92 CA is not applicable in the present case, in view of the fact that the petitioner admittedly submitted the Audit Report under Section 92-E of the Act.
This Court is of the considered opinion that there is no infirmity or perversity as such in respect of the order impugned passed by the Transfer Pricing Officer with regard to the reference made by the Assessing Officer regarding certain international transactions or otherwise.
Thus, the petitioner has not established any acceptable ground for the purpose of considering the relief as such sought for in the present writ petition.
Reopening of assessment for credit for withholding tax paid in Singapore cannot be allowed as TDS - HELD THAT:- As apparent that the amount lent to the Singapore company was actually borrowed by the assessee company and interest expenditure on money borrowed has also been claimed resulting in no real interest income on netting. Hence, in the absence of real interest income offered in India, relief under Section 90 of the Income Tax Act, 1961 on the tax withheld at Singapore may also be not available. Thus, the Assessing Officer has reason to believe that the income has escaped assessment. Such a finding is relevant for the purpose of constituting a Prima-facie case for re-opening of assessment by invoking Section 147 of the Act. The petitioner has to defend his case by availing the opportunities to be provided by the Department in this regard.
As during the process of re-opening, the Assessing Officer requested details and informations from the Transfer Pricing Officer and the report in this regard furnished by the Transfer Pricing Officer is also to be considered and a final order of assessment is to be passed as expeditiously as possible by following the procedures contemplated and by affording opportunity to the petitioner / assessee.
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2021 (6) TMI 914
Reopening of assessment u/s 147 - Reassessment beyond the period of four years - HELD THAT:- What is required is to scrutinize the reasons and sufficiency of the reasons need not be gone into by the High Court in a writ proceedings where the assessment is sought to be reopened by invoking Section 147 - Thus, sufficiency of the reasons cannot be gone into in a writ proceedings. High Court cannot conduct a rowing enquiry in respect of the accounts details as well as the technicalities involved in respect of the transactions. All those aspects are to be considered by the AO while passing the final order of reassessment.
Perusal of the above findings of the 3rd respondent would be sufficient to hold that the requirements of Section 147 of the Act has been complied with and the initiation of reopening proceedings is well within the provisions of the Act and therefore, the respondents are at liberty to proceed with re-assessment by following the procedures and by affording opportunity to the writ petitioner/assessee, as contemplated. The respondents are directed to complete the said exercise of completion of the re-assessment proceedings within a period of four months from the date of receipt of a copy of this order.
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2021 (6) TMI 913
Provisional attachment of overdraft bank account - Section 83 of the Central GST Act - HELD THAT:- The Petitioner has approached this Court without availing the aforementioned remedy available to it in law. Consequently, the Court directs that the Petitioner shall, not later than 1st July 2021, file an objection to the order of provisional attachment of its bank account before the Commissioner and upon the receipt of such objection, the Commissioner shall proceed to fix a date for hearing the Petitioner, which date should be communicated to the Petitioner at least three days in advance. After hearing the Petitioner, the Commissioner shall pass a reasoned order in terms of Section 83 of the OGST Act and Section 159 (5) and (6) of the OGST Rules not later than 2nd August, 2021. The said order shall be communicated to the Petitioner not later than 9th August, 2021.
Petition disposed off.
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2021 (6) TMI 912
Seeking grant of Anticipatory Bail - power to summon - compounding of offence - evasion of tax/duty - HELD THAT:- In view of the statement given by Sri D.C. Mathur, counsel for respondent no. 2, application for grant of anticipatory bail application is premature. This court has no reason to doubt the undertaking given by Sri Mathur that unless and until after receiving evidence and documents produced by the applicant, if satisfaction is arrived in terms of their being any suppression of fact or mis-statement or improper availment of input tax credit, no action is warranted to be taken to arrest the applicant.
The application is premature and is not maintainable at this stage - application dismissed.
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2021 (6) TMI 911
Validity of notice - Non-Service of SCN - Reversal of IGST - communication amounts to a demand in respect of which there has been no proper show cause notice or notice of any sort - HELD THAT:- The respondent has filed a counter wherein at paragraph 5 he states that the impugned communication is only an intimation of IGST payable and consequentially, a request to the petitioner to reverse the same. If that were so, then the impugned intimation shall be construed to put the petitioner to notice as to the proposal to reverse the same.
The petitioner will file a reply to the same within a period of four weeks from today and further proceedings may be taken thereafter in accordance with law - Petition closed.
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2021 (6) TMI 910
Validity of provisional assessment order - pre-amended provision under Section 19 for an input tax credit is to be considered for the purpose of passing an assessment order - Section 51 of the TNVAT Act - HELD THAT:- Institutional respect is of paramount importance. Even the point of jurisdiction, limitation, error apparent on the face of the record, are on merits and all are to be adjudicated before the appellate authority and the appellate authority, more specifically, the Appellate Tribunal or the Commissioner (Appeals), as the case may be, is empowered to adjudicate all such legal grounds raised by the respective parties and make a finding on merits. Thus, usurping the powers of the appellate authorities by the High Court by invoking its powers under Article 226 of the Constitution of India is certainly unwarranted. The parties must be provided an opportunity to approach the appropriate authorities for redressal of their grievances in the manner known to law. In the event of entertaining all such writ petitions, the High Court will not only be over-burdened, but usurping the powers of the appellate authority, which is certainly not desirable.
Jurisdictional error should not result in exoneration of liability - Jurisdictional error, if any committed, is technical, and thus, rectifiable. In such circumstances, the Courts are expected to quash the order passed by an incompetent authority and remand the matter back for fresh adjudication.
The higher authorities of the Department are expected to be watchful and review the orders passed by the subordinate authorities and in the event of any negligence, dereliction of duty, collusion or corrupt activities, such officials are liable to be prosecuted apart from initiation of departmental disciplinary proceedings. The procedures to be followed in the department for assessment are well settled. Thus, the authorities competent are not expected to commit such jurisdictional errors in a routine manner. In these circumstances, review of such orders by the higher authorities are imminent to form an opinion that there is willful or intentional act for commission of such jurisdictional errors, enabling the assesses to get exonerated from the liability. Liability and jurisdictional errors are distinct factors, and therefore, Courts are expected to provide an opportunity to the Department to decide the liability on merits and in accordance with law with reference to the provisions of the Act and Rules and guidelines issued by the Department.
The authorities competent shall proceed with the final assessment by affording opportunity to the assessee and by following the procedures contemplated under the statute. If any final assessment order has been passed thereafter, if the petitioner is aggrieved, he is at liberty to prefer appeal under Section 51 of TNVAT Act - Petition disposed off.
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2021 (6) TMI 909
Violation of principles of natural justice - reopening of assessments - dealer neither failed to file their objection / availing personal hearing nor the declaration form - non-application of mind - HELD THAT:- The respondent being a statutory authority is expected to discharge statutory functions in accordance with Section 84 of the TNVAT Act. It appears that the petitioner has repeatedly approached the respondent in person and requested to consider the representation, dated 26.12.2020, but the same has not yet been considered - Considering the submissions made by the learned counsel appearing for the petitioner as well as the respondent it would be appropriate to direct the respondent to dispose of the representation of the petitioner, dated 26.12.2020.
The respondent is directed to dispose of the representation of the petitioner, dated 26.12.2020, on merits, and in accordance with law, within a period of 12 weeks from the date of receipt of a copy of this order - petition disposed off.
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2021 (6) TMI 908
Rejection of application before Settlement Commission - true declarations made by the petitioner or not - non-payment of service tax on broadcasting services and sale of space or time for advertisement services - HELD THAT:- In the present case, there is a clear finding that the petitioner has not cooperated for the adjudication only in the event of true and clear declaration. Settlement can be made and even an iota of doubt in respect of the declaration could be sufficient to send the matter back to the adjudicating authority.
The provision as stated in Section 32E of the Central Excise Act, 1944, would clearly reveal that a person approaching the Settlement Commission must establish that the application contains full and true disclosure of his duty liability which has not been disclosed before the Central Excise Officer having jurisdiction. Thus, an approach to the Commission must be not only genuine, it must be proved that the application contains the true and full disclosure of duty liability, which has not been disclosed before the Central Excise Officer concerned - In the absence of an element of truthfulness in the application, the Commission is liable to reject the application in limini and send the matter back to the adjudicating authority by invoking Section 32L of the Act. This being the scope of consideration by the Settlement Commission, the findings of the Settlement Commission are of paramount importance for the purpose of considering this writ petition.
The findings of the Settlement Commission reveal that the petitioner has not approached with clean hands. The show cause notice was issued for non-payment of service tax on broadcasting services and sale of space or time for advertisement services. Once a dispute is raised and the petitioner approached the Settlement Commission, without furnishing full and true disclosures, then there is no reason whatsoever for the Commission to entertain the application for settlement and thus, the writ petitioner is not entitled for settlement by invoking the provisions of the Act.
The provisions for settlement are provided in a statute enabling the aggrieved person to come out with true facts and settle the issue peacefully to avoid prolongation and protraction of disputes. Thus, the settlement provisions are made for the welfare of the assessees and the said provisions are to be implemented in its spirit and the provisions for settlement cannot be dealt with reference to the disputes, if any, exist between the parties - this Court has no hesitation in arriving a conclusion that the petitioner has not established any acceptable reasons for the purpose of interfering with the order passed by the Settlement Commission.
Petition dismissed.
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2021 (6) TMI 907
Recovery of Customs Dues - non-fulfilment of export obligation under Export Promotional Capital Goods (EPCG) Authorization - entitlement to release bank guarantee or not - HELD THAT:- This Court is of the considered opinion that the impugned order is for recovery of Government dues for the alleged non-fulfilment of EODC - Now the petitioner has approached the Joint Director General of Foreign Trade for issuance of EODC. The application is pending. The learned counsel for the petitioner also made a submission that he will approach the authority for early disposal of the application and therefore, some time is to be granted for submission of the said certificate.
In view of the facts and circumstances, thirty days time is granted for the purpose of submission of EODC by the writ petitioner. In the event of not submitting the said certificate to the respondents within a period of thirty days from the date of receipt of a copy of this order, the respondents are at liberty to realise the bank guarantee already furnished by the writ petitioner - Petition disposed off.
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2021 (6) TMI 906
Levy of Service tax - Noticepay - amount received as consideration towards tolerating the act of breach of contract by the employee - declared service or not - HELD THAT:- The issue in hand is if Service Tax can be demanded on amount recovered by the employer from the employee for granting waiver of mandatory notice period prescribed in the agreement. The issue has been settled by the Hon’ble High Court of Madras in the case of GE T & D INDIA LIMITED (FORMERLY ALSTOM T & D INDIA LIMITED) VERSUS DEPUTY COMMISSIONER OF CENTRAL EXCISE [2020 (1) TMI 1096 - MADRAS HIGH COURT] where it was held that the employer cannot be said to have rendered any service per se much less a taxable service and has merely facilitated the exit of the employee upon imposition of a cost upon him for the sudden exit.
Appeal dismissed - decided against Revenue.
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2021 (6) TMI 905
Levy of late fee charges - delay in filing the bills of entry - HELD THAT:- It is to be stated that the cause of action in this appeal has occurred during the transition period of introduction of GSTIN registration. There were much technical difficulties faced by assessee / importer / exporter during that time due to system failure, server connectivity etc. There were many cases filed before the High Courts - In the present case also, it is seen that the appellant could not obtain the GSTIN registration and had to apply for the second time. Being a new law, it is inferable that it is not easy for the public to understand how to apply and pay the tax under a new law. Further, under Notification No. 26/2017 itself, it is stated that such late fee can be waived if sufficient reasons are furnished before the proper officer. Thus, it is a condonable lapse.
In the circular issued by Board dated 31.8.2017, it is stated that the importer should not be penalized for delay happening due to any system related defect. For all these reasons and most importantly since the period involved is during the transition period of GST, the late fee charges imposed is not warranted - Appeal allowed - decided in favor of appellant.
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2021 (6) TMI 904
Oppression and mismanagement - Petitioner having less than 10% of the issued share capital of the Company - section 244 of the Companies Act - HELD THAT:- Based on the statutory provision of Section 241 and 244 of the Companies Act, 2013, it is clear that the Application to the Tribunal for relief in cases of oppression and mismanagement can be filed by any member of the Company who complains that the affairs of the Company are being conducted in a manner prejudicial to the public interest or the manner prejudicial or oppressive to him or any other member or members or the manner prejudicial to the interest of the Company - But the precondition for filing a petition under Section 241 is provided under Section 244 of the Companies Act 2013. It lays down the precondition of filing a Petition that such member has a right to apply under Section 244 for an order under this Chapter. Section 244 (1) (a) of the Act lays down the precondition being that any member or members must hold not less than one-tenth of the total number of its Members, or any member or members must hold not less than 10% of the issued share capital of the Company.
Admittedly Petitioner/Respondent No. 1 in this Appeal had filed the Petition under Section 241 of the Companies Act 2013 alleging acts of oppression and mismanagement against the Respondents. However, the Petitioner admits that its shareholding is less than the required 10% eligibility criteria for filing the petition. Therefore, instead of seeking a waiver under proviso to Section 244 (1) of the Companies Act 2013, the Petitioner has sought relief for granting a waiver from the 10% eligibility criteria - The NCLT had the power to grant a waiver from any of the conditions laid down regarding the eligibility criteria for filing the Petition under Section 241 of the Act. But Applicant/Petitioner has to assign a reason; based on that, the NCLT may or may not waive any of the eligibility criteria as laid down under Section 244 of the Act.
Admittedly, in this case, notices have been issued without admitting the Petition and even without considering the eligibility criteria for filing a Petition under Section 241 of the Companies Act 2013. Consequently, an Application seeking a waiver from eligibility criteria under proviso to Section 244 (1) of the Companies Act is pending - Appeal disposed off.
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