|
Advanced Search Options
Case Laws
Showing 281 to 300 of 1393 Records
-
2021 (2) TMI 1115
Recovery of Tax - Attachment and auction of property - Right of buyer of property in Auction - Validity of action on the part of respondent no.1/ District Industries Centre in refusing to transfer the property - priority of dues - mortgage of property - HELD THAT:- The issue about priority of dues, inter se between the respondent nos.2 and 3, is no longer res integra but is covered by the judgment of the Full bench of the Madras High Court in THE ASSISTANT COMMISSIONER (CT) , ANNA SALAI-III ASSESSMENT CIRCLE VERSUS THE INDIAN OVERSEAS BANK, M/S. SUPER RECORDING CO. LTD. [2016 (12) TMI 373 - MADRAS HIGH COURT] where it was held that the rights of a Secured Creditor to realise secured debts due and payable by sale of assets over which Security Interest is created, would have priority over all debts and Government dues including revenues, taxes, cesses and rates due to the Central Government, State Government or Local Authority. This Section introduced in the Central Act is with ''notwithstanding'' clause and has come into force from 01.09.2016.
The SARFAESI Act, is obviously a Central Statute, and therefore any priority of claim for debts due to a secured creditor, which is created by any provision, as contained therein (Section 26-E in this case), will prevail over any First Charge, which may have been created by Section 37 (1) of the MVAT Act, 2002, in view of the language used in Section 26-E of the SARFAESI Act which states that such a claim by a secured creditor “shall be paid in priority over all other debts and all revenues, taxes, cesses, and other rates payable to the Central Government or State Government or local authority”. The priority created by virtue of Section 26-E of the SARFAESI Act, also takes precedence over any crown debt, which is due or payable to the Central Government, State Government or local authority. Thus, creation of any priority for any debts due, to the secured creditor, under Section 26-E of SARFAESI Act would prevail over any charge created for payment of a liability, on account of tax etc., which is due or payable to the State Government under the provisions of the MVAT Act, 2002.
As Section 37(1) of the MVAT Act, 2002, creates a charge on the property, a successful auction purchaser, thus would hold the property, upon which a statutory charge has been created, subject to such charge and the property would thus continue to be liable for any statutory charges created upon it, even in the hands of such auction purchaser, though for non disclosure of such charge by the secured creditor, the auction purchaser may sue the secured creditor and have such redress, as may be permissible in law. This is moreso for the reason that the priority given in Section 26-E of the SARFAESI Act, to the Banks, which is a secured creditor, would only mean that it is first in que for recovery of its debts by sale of the property, which is a security interest, the other creditors being relegated to second place and so on, in the order of their preference as per law and contract, if any, as the case may be. Thus the dues under Section 37(1) of the MVAT Act, 2002, being a statutory charge on the property, would also be recoverable by sale of the property, and that puts a liability upon the auction purchaser, who, in case he wants an encumbrance free title, will have to clear such dues - The provisions of Section 13(7) of the SARFAESI Act, thus also provide for the manner in which the money received by the secured creditor, by sale of the security interest, is to be applied, the residue after discharge of the debts of the secured creditor, has to be held in trust and paid to the person entitled thereto in accordance with his rights and interests, which in this case, would be the dues under the MVAT Act, 2002. It would thus be proper for the secured creditor, to ensure that all encumbrances, be known before hand; the amount to be received by auction of the property, should be sufficient to cover the costs, charges and expenses and discharge of the dues of the secured creditor and also discharge of the encumbrances upon the property.
Thus, the dues as claimed by the respondent no.2, being a charge on the property, under Section 37(1) of MVAT Act, 2002, and the property having stood attached by the respondent no.2, before the auction, the petitioner, would be liable to pay the same to the respondent no.2, in order to obtain a clear and marketable title to the property, having purchased the same on 'As is where is and whatever there is basis'. In case the petitioner discharges the aforesaid dues of the respondent no.2, it would then be entitled to a no dues certificate from the respondent no.2 - the petitioner is not entitled to the reliefs as claimed in the petition.
Petition dismissed.
-
2021 (2) TMI 1114
The Bombay High Court allowed the appeal to be withdrawn by the Commissioner of Central Tax & Central Excise, Navi Mumbai as the amount involved was below the prescribed limit. The appeal was disposed of, and refund was granted as per rules.
-
2021 (2) TMI 1113
Revision u/s 263 - disallowance under Section 40(a)(ia) - Tribunal hold that assumption of jurisdiction under Section 263 was correct - HELD THAT:- From close scrutiny of Section 263 it is evident that twin conditions are required to be satisfied for exercise of revisional jurisdiction under Section 263 of the Act firstly, the order of the Assessing Officer is erroneous and secondly, that it is prejudicial to the interest of the revenue on account of error in the order of assessment.
The aforesaid provision was considered by the Supreme Court in ‘MALABAR INDUSTRIAL COMPANY VS. CIT’ [2000 (2) TMI 10 - SUPREME COURT] and it was held that the phrase ‘prejudicial to the interests of the revenue’ has to be read in conjunction with an erroneous order passed by the Assessing Officer and every loss of revenue as a consequence of the order of the Assessing Officer cannot be treated as prejudicial to the interest of revenue. It was further held that where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does not agree, the order passed by the Assessing Officer cannot be treated as erroneous order prejudicial to the interest of the revenue.
it is the claim of the assessee that the assessee has not claimed the benefit of the disallowance under Section 40(a)(ia) of the Act for the Assessment Year in question ie., 2008-09 and the same was claimed in the previous Assessment Year ie., 2007-08. Therefore, in our opinion, the matter requires factual adjudication. The Tribunal has not adverted to the aforesaid aspect of the matter and has not considered the submission made by the assessee that the amount of ₹ 2,36,07,661/- was not a real amount but only the provision that was directly reversed.
In view of the preceding analysis, the matter requires factual adjudication. We are inclined to remit the matter. Therefore, it is not necessary for us to answer the substantial questions of law framed in the appeal.
The impugned order of tribunal is hereby quashed and the matter is remitted to the Tribunal for decision afresh in accordance with the observations made in this order.
-
2021 (2) TMI 1112
Reopening of assessment u/s 147 - Whether the first re assessment order made u/s 143(3) r.w.s. 147 of the Act dated 17.02.2014 gets effaced when a subsequent re-assessment order was made u/s 143(3) r.w.s. 147 of the Act, on 22.03.2016, in respect of the same Assessment Year and on same facts? - HELD THAT:- It is well settled in law that when a subsequent order is passed in respect of the same assessment, the previous order of assessment passed by the Assessing Officer gets effaced. In the instant case, in view of the order dated 22.03.2016, the previous order of assessment passed by the Assessing Officer dated 17.02.2014 got effaced and therefore, the subsequent order passed by the Assessing Officer dated 22.03.2016 prevails. Therefore, the first substantial question of law is answered in favour of the assessee and against the revenue.
We are informed that against the subsequent order of assessment, the appeal is pending before the Commissioner of Income Tax (Appeals). Therefore, in the facts of the case, it is not necessary for us to answer the remaining substantial questions of law and the appeal is disposed of with liberty to the parties to raise all legal contentions as are admissible to them in law in the appeal, which is pending adjudication before the Commissioner of Income Tax (Appeals).
-
2021 (2) TMI 1111
Validity of draft order u/s 144C passed by the Deputy Commissioner of Income Tax - whether the assessee is right in contending that the assessee's case was selected for a limited scrutiny and the reference to the TPO was beyond the scope of the scrutiny? - HELD THAT:- As rightly contended by Revenue the first respondent is not competent to check whether the value of the international transactions as furnished in Form 3CEB by a Chartered Accountant and return of income is correctly shown. Assessing Officer, being not competent to examine the said issue, necessarily, the case has to be referred to the TPO as per Section 92CA - the contention of the appellant/assessee that the case was selected for mere reconciliation is an incorrect interpretation. This is clear from the reason for which the case was selected for scrutiny and the issue arising there from. Thus, we find that there is no violation of the instructions issued by the CBDT.
In our considered view, the learned Single Bench rightly took note of these aspects as well as paragraph 3.4 of the CBDT Instruction No.15/2015, which states that the issue on which a reference was thought to be necessary, has to be explicitly mentioned in the Assessing Officer's letter seeking reference to the TPO and such letter of the Assessing Officer dated 17.07.2018, was found to have complied with the said condition.
We also agree and endorse the finding rendered by the learned Single Bench that the reason for selection of scrutiny by CASS was only for numerical reconciliation is a over simplification of the reason stated for selection. In fact, the learned Single Bench has observed that the officer might have been more detailed in the choice of words employed so as to specifically refer to the issue of total employee cost, however, non-reference to this, is not fatal, as the reason for selection by CASS has been produced and placed on record by the officer while seeking approval of a Principal Commissioner of Income Tax (PCIT) for reference to the TPO.
As Court noted that after the interim order, which was initially granted, was not extended, the Assessing Officer issued show cause notice dated 11.10.2019, the appellant/assessee submitted their reply dated 23.10.2019, enclosing various details on the computation of the ALP as sought for by the Assessing Officer. However, the affidavit filed in support of the writ petitions was silent with regard to these facts. Thus, the learned Single Bench rightly concluded that the appellant has not only cooperated and participated in the conduct of assessment, but has also filed objections before the DRP that are pending disposal. Hence, we are of the considered view that the learned Single Bench rightly dismissed the writ petitions and the order does not call for any interference.
-
2021 (2) TMI 1110
Addition u/s 68 - Onus to prove - whether evidence against the assessee lies and the assessee failed to discharge his initial burden on this account - Tribunal shifting the responsibility of proving genuineness of share application money to the Assessing Officer - whether mere furnishing list of person who have claimed to have advanced towards share capital thus constitute sufficient compliance on the part of the assessee? - HELD THAT:- Assessee has not discharged the legal obligation cast upon them to prove the genuineness of the transaction, the identity of the creditors and creditworthiness of the investors, who should have the financial capacity to make the investment in question to the satisfaction of the Assessing Officer so as to discharge the primary onus - Since the assessee did not discharge the primary onus cast upon them, the question of the Assessing Officer to investigate the creditworthiness of the creditors/subscribers would not arise in the case on hand.
We have no hesitation to conclude that the Tribunal erred in confirming the order passed by the CIT(A) by observing that merely because the share applicants are from Andhra Pradesh that cannot be a reason to disallow the claim of the assessee. The factual position being, the Assessing Officer did not do so, but disallowed the same on the ground that the assessee has not furnished any details, viz., the names and addresses of the persons, who paid the share capital advances, the cheque numbers, the name of the bank, PAN numbers etc. Thus, the order passed by the Tribunal calls for interference. Decided in favour of the Revenue
-
2021 (2) TMI 1109
Confiscation of imported goods - Old/Used Analogue Photocopiers and Old/Used Digital Multi functional (Print and Copying) Machines - restricted goods - appellant did not produce the license for import of the said machines - redetermination of value of the goods under Rule 9 of the Customs Valuation [Determination of Price of Imported Goods] Rules, 2007 - appraisal of value of goods - whether the finding rendered by the Tribunal holding that what was imported by the appellant was a restricted item was correct? - whether the reasons assigned by the Tribunal to confirm the order of the adjudicating authority calls for any interference? - HELD THAT:- The appellant had imported 36 units of Old/Used Analogue Photocopiers without obtaining a license. Having accepted the stand taken by the Department, the appellant requested that his case may be adjudicated.
All second hand goods except second hand capital goods are restricted for import. It is not in dispute that 201 machines which were imported by the appellant were second hand goods. Thus, going by the first limb of para 2.17, license is required. In the second para, the Policy allows import of second hand capital goods including refurbished/reconditioned spares without obtaining any license. There is a restriction for import of second hand Photocopier machines and other items mentioned therein. The appellant did not produce a Chartered Engineer's certificate when the goods were imported. Therefore, the goods were subjected to examination by Docks Officer in the presence of a Chartered Engineer and certified that the goods are 4 to 10 years old, they are used and not reconditioned and the value of the second hand goods was appraised as USD 69395 [C&F] - The photocopying machines do not have any single entry in Tariff and copying machines whether or not combined with printers and facsimile machines are classified elsewhere as also machines which perform two or more functions of printing, copying or facsimile transmission as in the case of the imported goods. Further the Tribunal noted that DGFT notification No.31/2005 dated 19.10.2005 uses the expression “photocopier machines” and therefore, there is no warrant to read the expression appearing in the DGFT notification as conforming to any one particular expression used in the Tariff as these expressions are not identical and no Tariff item is mentioned in the DGFT notification.
The Tribunal rightly rejected the case of the appellant - Appeal dismissed - decided against appellant.
-
2021 (2) TMI 1108
Seeking grant of Anticipatory Bail - allegation of Receipt of Monthly Bribe - Tax officers - It was alleged that the tax was being evaded by ensuring that there was no checking or verification of the documents or goods, while being transported to and from the State of Punjab - alleged register maintained by the Munshi cannot be looked into for the purpose of implicating the petitioner in the said FIR as there is no proof regarding the fact whether these books were maintained in the regular course of business nor is there any certificate to that effect - non-compliance of Section 17A of the Prevention of Corruption Act as amended - HELD THAT:- In the celebrity judgment of Devender Kumar vs. CBI [2019 (1) TMI 1665 - DELHI HIGH COURT], it has been held that by incorporating Section 17A as it reads by itself, the intention of the Legislature was to protect the public servants in the bona fide discharge of their official functions or duties. It was further held that when act of a public servant is ex facie criminal or constitutes an offence, prior approval of the Government would not be necessary. Section 17A would be applicable to cases where offense is relateable to any recommendation made or decision taken.
Thus, it would not be necessary by the respondent-State to have obtained prior approval of the State Government before initiating enquiry or investigation in the said matter. The bar to enquiry or investigation under Section 17A of the Prevention of Corruption Act is apropos such alleged offence, as may be relatable to any recommendation made or decision taken by a public servant in discharge of his official functions or duties. In the present case, there is no recommendation or decision on record by a public servant in the discharge of his official functions or duties.
No doubt the personal liberty of the petitioners is at stake, as stated while praying for anticipatory bail, but in the instant case the custodial interrogation would be required to unearth the nexus between the petitioners and the intermediaries, as well as the amount of tax evasion involved in its entirety. The complicity of the petitioners herein as alleged would be revealed and fortified only with further investigation, for which as a necessary corollary custodial interrogation of the petitioners would be required - In the case in hand, there has to be a deviation from normal rule of bail rather than jail, since the allegations and prima facie investigation revealed that there was evasion of tax at a very large-scale and officials were being paid bribes on a monthly basis. The investigation is at a very nascent stage regarding the role of the petitioners herein. The petitioners are also persons of influence and would be in a position to scuttle a proper investigation.
Bail cannot be granted - petition dismissed.
-
2021 (2) TMI 1107
Income accrued or deemed to accrue in India - marketing and advertising rights that have been granted under the MAA [Marketing and Advertising Agreement'] - rights under MAA - source of income was the game of cricket played in India - payment to be made by LG Electronics India Private Limited, a company incorporated in India (hereinafter called as 'LG India') to IDI Mauritius Limited, a company incorporated under the laws of Mauritius (hereinafter referred as 'IML') for grant of commercial rights under the 'Marketing and Advertising Agreement' - Whether payment to IML is taxable? - DTAA between India and Mauritius - HELD THAT:- Payment made by the Applicant under MAA was purely for advertisement and publicity of the brand name of the assessee and for promotion of its product during the Cricketing events of ICC and it was not "royalty" as defined in Article 12.3 of DTAA between India and Mauritius. These payments cannot, by any stretch of imagination, be said to relate to use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, any patent, trade mark, design or model, plan, secret formula or process or for information concerning industrial, commercial or scientific experience or for use of commercial equipments so as to constitute "royalty". The payment does not qualify as "Fee for Technical Services" as well; as no service was rendered in this case. The payments may constitute "business profits" in the hands of the recipient to which Article 7 of the DTAA would apply, but in the absence of any permanent establishment of the payee in India, is not chargeable to tax in India. Therefore, the payment made by the Applicant to IML for grant of commercial rights under MAA is not taxable in India as per the provisions of the DTAA between India and Mauritius.
Payments to non-resident sportsmen or sports associations - Obligation to withhold tax on payments made to IML for grant of commercial rights under the 'Marketing and Advertising Agreement ' - Payment made by the Applicant under the agreements is found to be payable to a non-resident sports association/institution in relation to game played in India. Had the sponsorship agreement not been sanctioned by ICC, neither the game could have been played in India nor could the payments have been made to IML in connection with the ICC Events. Further, all the rights transferred under the agreements were in respect of ICC Events and were pertaining to ICC only, particularly under GPA. Even under the MAA the trademark "ICC" was used in the advertisement, publicity campaigns etc. alongside the Applicant's logo which was held as incidental to the main services obtained by the Applicant under MAA. As the ICC did not undertake any financial transactions directly the payment for grant of rights under the agreements was received through the Group entities owned by ICC. In view of these facts we have no hesitation to hold that the payment made by the Applicant under the agreements with IML was income pertaining to a non-resident sports association or institution.
Force Majeure clause of MAA stipulated that if any ICC Events or Matches were abandoned, postponed or cancelled, the Company was not entitled to terminate the Agreement, but the payment of the Rights Fee attributable to that event can be deferred without any penalty until such time as that event was replayed. This also reinforces the nature of payment as guarantee money. Further, what is relevant to consider is not the nomenclature of the payment in the agreement but its real nature. From the above discussions we find that though the payment was mentioned as "right fee" in the agreement, its real nature was "guarantee fee".
All the conditions as stipulated in section 115BBA of the Act are found fulfilled in this case. And once these conditions are satisfied, the obligation of the Applicant to deduct tax u/s 194E of the Act was absolute. Unlike section 195 there is no condition in section 194E that the payment being made should be chargeable under the provisions of this Act. Therefore, there was no obligation on the Applicant to examine whether the payment made under MAA was chargeable to tax in India in the hands of IML. Even if the income of IML was notified as exempt u/s 10(39), it did not mitigate the obligation of the Applicant to deduct tax u/s 194E of the Act.
In the present case the source of income was the game of cricket played in India. Though the payments were described as rights money, in essence they were in the nature of guarantee money and were intricately connected with the cricketing event and the matches played in India. The close connection between the amount paid by the Applicant and the cricket matches played in India has never been denied. Thus the income of the Non-resident Sports Association had accrued in India under the provision of Section of the Act.
There was no requirement to ascertain that the amount paid under section 115BBA was chargeable to tax or not. Even if it was not chargeable it did not absolve the Applicant from the liability to deduct TDS under section 194E. This obligation was neither affected by the DTAA nor by the Notification issued by the CBDT as the benefit of the DTAA or the Notification could have been claimed only by the IML and not by the Applicant. We, therefore, hold that the Applicant was liable to withhold tax under section 194E of the Act on payments made to IML for grant of commercial rights under the 'Marketing and Advertising Agreement' in respect of games played in India.
Rate of withholding tax - whether on the stated facts and in law LG India is required to deduct tax at source on [he payment to IML for the commercial rights under the 'Marketing and Advertising Agreement ' at the rate of 10% plus applicable surcharge and cess as per the provisions of section of the Income-Tax Act, 1961 -The rate as prescribed in section 115A(1)(b)(AA) cannot be applied in the present case. The liability of the Applicant to deduct tax was u/s 194E of the Act in respect of the games played in India and the rate prescribed in this section was 10% which was increased to 20% with effect from 01/07/2012. Accordingly, the Applicant was required to deduct tax at the rate(s) as prescribed in section 194E of the Act at the relevant point of time. The Applicant cannot deduct tax at source at the rate prescribed under the treaty between Indian and Mauritius even if that rate is beneficial. As held by Hon'ble Supreme Court in the case of PILCOM [2020 (5) TMI 57 - SUPREME COURT] the obligation to deduct Tax at Source under Section 194E of the Act was not affected by the DTAA and it was only the recipient who can take the benefit of DTAA for the beneficial rate under the DTAA. So far as the Applicant is concerned, it was required to deduct Tax at Source at the rate(s) as prescribed under section 194E of the Act only.
Advance ruling:-
Que. 1 The payment made by the Applicant to IDI Mauritius Limited, for grant of commercial rights under the 'Marketing and Advertising Agreement' is not found taxable in India in the hands of IML as per the provisions of the DTAA between India and Mauritius.
Que. 2 LG India was obligated to withhold tax on payments made to IML for grant of commercial rights under the 'Marketing and Advertising Agreement' in respect of games played in India.
Que. 3 LG India was required to deduct lax at source on the payment to IML for the commercial rights under the 'Marketing and Advertising Agreement' in respect of games played in India at the rate as prescribed under section 194E of the Income-Tax Act, 1961.
-
2021 (2) TMI 1106
Addition of inflated expenditure - Whether the inflated expenditure admitted by the assessee is to be allowed despite the fact that the assessee could not reconcile the statements nor could prove the same with supporting documentary evidence? - Tribunal remanding the issue back for verification of inflated expenditure for the assessment year 2011-12 while allowing relief for another assessment year 2010-11 when the facts are similar on the same issue? - HELD THAT:- Tribunal appears to have examined certain documents, which seemed to have been produced by the assessee for the first time before the Tribunal and the Tribunal proceeded to hold that a perusal of the sub-contract as also the invoice showed that the area was an estimated quantity only and therefore, the Tribunal found no reason to interfere disallow the expenditure.
Tribunal, while testing the correctness of the order passed by the CIT(A), is required to examine as to whether there is any error of fact or law committed by the CIT(A). In the assessee's case, both before the Tribunal and the CIT(A), the assessee could not reconcile the difference and for the first time, the assessee attempted to do so before the Tribunal.
Two options would be available to the Tribunal, the first being, in our opinion, the most effective, is to call for a remand report from the Assessing Officer based on the documents presented by the assessee before the Tribunal for the first time and the second option is to remand the matter to the Assessing Officer for a fresh consideration. The Tribunal did not exercise any one of the options, but proceeded to take note of certain documents placed before the Tribunal for the first time and granted relief to the assessee.
We do not agree with the procedure adopted by the Tribunal and without examining the fact situation, the Tribunal ought not to have granted relief especially when the assessee could not reconcile the difference before either the Assessing Officer or the CIT(A). Hence, we are of the considered view that the Tribunal ought to have remanded the matter to the Assessing Officer for a fresh consideration and ought not to have allowed the appeal. - Appeal of revenue allowed.
-
2021 (2) TMI 1105
Attachment of immovable property - It is the case of the Department that it proceeded to attach the immovable property in question as it is the estate of the deceased (original assessee). On the other hand, the case of the writ applicant is that, it is not the estate of his deceased father, but it is his self acquired property - HELD THAT:- Let Notice be issued to the respondents, returnable on 09.03.2021.
Mr. Kathiriya, the learned AGP waives service of Notice for the State Respondents. Mr. Kathiriya shall file reply prima facie pointing out that the materials on record indicate that the immovable property in question is the estate of the deceased.
-
2021 (2) TMI 1104
Validity of Direction of the Tribunal to issue fresh SCN - demand beyond the scope of original SCN - power of Tribunal in making certain observations with regard to the validity of the CENVAT Credit Rules, 2004 qua the provisions of Section 37 of the Act - validity of proceeding to direct the original authority to issue a show cause notice to the appellant/assessee as regards its very entitlement for CENVAT credit - HELD THAT:- The Tribunal appears to have suo motu taken up for consideration as to whether credit of service tax paid or payable on taxable service is allowable. The Tribunal suo motu proceeded to refer to Section 37(2), Section 11AB of the Act and made certain observations, which are in the nature of conclusive observations. The learned counsel for the assessee had argued that the assessee had been put on notice only regarding the issue whether the debit note is an eligible document or not and not on the question whether the impugned taxable service is an eligible input service or an ineligible input service.
After noting this submission, the Tribunal while remanding the matter to the Original Authority following the decision in Pharmalab Process Equipments Pvt., Ltd. [2009 (4) TMI 142 - CESTAT AHMEDABAD], where it was held that debit notes issued by service providers contained details of service tax payable, description of taxable service, value of taxable service and registration number of service provider and name and address of service provider, which are the details required as per Rule 9(2) of the CCR, 2004, issued one more direction to the Original Authority to issue a fresh show cause notice as to whether the impugned services are eligible input services or not. The assessee is aggrieved over such direction.
Experts explain Debit notes to be a form of proof that one business has created a legitimate debit entry in the course of dealing with another business. This might occur when a purchaser returns materials to a supplier and needs to validate the reimbursed amount. In this case, the purchaser issues a debit note reflecting the accounting transaction. Debit notes and credit notes are almost always involved in business-to-business (B2B) transactions. They correspond to debit and credit entries in accounting logs, which further serve as proof of a prior business transaction. They may also be referred to as debit memos - A debit note or debit receipt is very similar to an invoice. The main difference is that invoices always show a sale, where debit notes and debit receipts reflect adjustments or returns on transactions that have already taken place. B2B transactions are typically based on an extension of credit, where a vendor sends a shipment to a company before getting paid, then invoices the company for the amount owed after delivery. Debits and credits are the accounting method used to keep track of these transactions. Debit notes can also be substituted for traditional invoices when a good or service is provided that is outside of the normal scope of business. This helps distinguish the transaction for both accounting departments, and also keeps the issuing company from creating a new type of invoice.
The endeavour before us by the Revenue to sustain the argument is by referring to the powers of the Tribunal and that the Tribunal would be entitled to examine all issues, when it seized of an appeal arising out of an order in original or an order in appeal. This submission is not well founded in the facts and circumstances of this case for more than one reason. Firstly, the appeal was filed by the assessee and not the Revenue. The Revenue did not prefer any cross appeal/objection. Therefore, the assessee cannot be worse off in its own appeal before the Tribunal. Further, the Tribunal has not recorded as to who had advanced such submission. In the absence of any such observation, we are compelled to observe that it is suo motu exercise by the Tribunal, which is uncalled for and without jurisdiction. We say so because, the allegation in the show cause notice, which gives the cause of action for the entire matter, is that the assessee availed service tax input credit based on ineligible documents - Therefore, the Department can never proceed beyond such allegation and if done so, it would be wholly without jurisdiction. In other words, the Tribunal cannot sustain the case of the Revenue against an assessee on a ground not raised by the Revenue either in the show cause notice or in the order in original passed by it.
Thus, the direction issued by the Tribunal to issue a fresh show cause notice to the appellant/assessee as to whether the impugned services are eligible input services or not is wholly without jurisdiction and the same is liable to be set aside - appeal allowed - decided in favor of appellant.
-
2021 (2) TMI 1103
Substantial question of law or fact - application for condonation of delay of 1350 days - HELD THAT:- There are concurrent findings of fact of the Assessing Officer, Commissioner of Income Tax (Appeals)-I and ITAT, and what the appellant is calling upon us to do, is to re-appreciate the evidence on the basis of which consistent findings, on the aspects from which the appellant is aggrieved, have been rendered.
Appellant however has contended that a substantial question of law arises because the Income Tax Authorities and the ITAT have ignored material evidence. It is contended that owing to plethora of material in public domain, of the project, of which the appellant has been found to have earned commission, having been scrapped, the possibility of the appellant being paid commission did not exist. Appeal dismissed as no substantial question of law.
-
2021 (2) TMI 1102
Principles of Natural Justice - serious grievance on the part of the petitioner is that not only there has been no specific order passed by the concerned authority denying the opportunity of cross examination to the petitioner, it has chosen to decide both the show cause notices in a common order, which has been passed on dated 4.9.2020 without even availing opportunity of hearing - HELD THAT:- So far as insistence on the part of the petitioner for personal hearing is concerned, the Court is not inclined to entertain that plea as the virtual hearing is being conducted right from the time the lock-down had been effected, even in those matters which are quite contested and one of them is the present matter also.
So far as the request of cross examination made by the petitioner dated 19.8.2020 is concerned, we notice that in the Order-in-Original itself, the authority concerned has denied such right to the petitioner without passing any separate order even on noticing the decision of this Court in case of Mahek Glazes Pvt. Ltd. [2013 (7) TMI 128 - GUJARAT HIGH COURT].
Accordingly, let notice for final disposal as well as for interim relief be issued, returnable on 16.2.2021.
-
2021 (2) TMI 1101
Benefits under Merchandise Exports from India Scheme (MEIS) - product of vitrified tiles exported to Sri Lanka - case of petitioner that Public Notice had been amended on 04.05.2016 being the Public Notice No.6 of 2015-20 and MEIS scheme was extended to the export made to Sri Lanka at the rate of 2% interest - It is averred by the petitioner that the policy permits the eligibility of the goods which had been exported by the petitioner under the MEIS scheme and it is only the procedural lapse which has resulted into his being denied the benefit of the said scheme - HELD THAT:- Having noticed that the case of the petitioner falls under the MEIS which is a scheme meant for promoting the export, these are the rewards under the MEIS payable as percentage mentioned in the scheme itself can be transferred for the payment of number of duties and taxes. As can be gathered from material which has been placed on the record is that Sri Lanka was placed in GroupC in the Public Notice No.2 of 2015 dated 01.04.2015. In Gazette of India, the Ministry of Commerce and Industry, Department of Commerce provided in exercise of the powers conferred under para 2.04 of the FTP 2015-20, the schedule of country groups and the code wise list of product with reward rates under Appendix 3B as pointed out to us that Sri Lanka is not one of those country. It is not in dispute that by way of 73 shipping bills, export has been carried out by the petitionerexporter and he has substantiated the same by way of the documentary evidences, which had happened from 12.05.2016 to 05.01.2017. The Public Notice had been amended firstly on 04.05.2016 and thereafter, on 22.09.2016 whereby Sri Lanka was included and export to Sri Lanka has also been covered under the scheme of MEIS at the rate of 2% and 3% respectively.
In the instant case, there is no doubt with regard to the exports having been made under the FTP 2015-20 where, initially, Sri Lanka was not one of the countries where such reward was available on export to the said country. The petitioner has already exported its product 'vitrified tiles' to Sri Lanka and 73 shipping bills have also been produced before the respondent authorities. What has been pleaded all through out by the petitioner is of lack of knowledge of subsequent public notices which had included Sri Lanka as a country for seeking the reward under the MEIS and entire procedure having been simplified, instead of getting the declaration produced for the purpose of the reward, the ticking of N/Y would suffice in case of the EDI. The ticking itself had been made equivalent to such declaration. It is quite clear that for the purpose of the reward, the EDI has been simplified more particularly, by way of the Public Notice No.9 of 2015 dated 16.05.2016 and the marking of tick in pursuance of the earlier Public Notice No.47 dated 08.12.2015 had been treated as a declaration of intent in case of EDI shipping bills.
Section 149 of the Customs Act, 1962 which has been taken recourse to by the petitioner does not prescribe any time limit. It is a discretion of the concerned officer, which can authorize any document after it has been presented in the Custom House to be amended. Of course, this has not to be amended after once the imported goods have been cleared for the home consumption and deposited in the warehouse where export goods have been exported, except on the basis of the documentary evidences, which are in existence at the time of the clearance, deposit or the export of the goods, as the case may be - it is essentially to avail the exporter the benefits prescribed under the MEIS that the request has been sent by the petitioner to make the same available to it. Therefore, it is also expected of the respondent authority to adopt an approach, giving progressive interpretation to all these provisions and the policy decisions rather than having conventional outlook.
The impugned communication dated 10.06.2019 is quashed and set aside. Respondent No.2 is directed to issue No Objection Certificate to the petitioner for availing the benefits as provided under the policy - Petition allowed.
-
2021 (2) TMI 1100
Seeking direction to release goods imported - county of origin of the consignment - Section 110A of the Customs Act, 1962 - HELD THAT:- The determination of origin of the consignment is best left to the authorities as it involves examination of documents and relevant material. The respondents are thus directed to commence proceedings for investigation, issue a show cause notice at the earliest, complete adjudication and pass an order-in-original within a period of two months from today.
Condition imposed for provisional release - HELD THAT:- The direction to the petitioner for furnishing of PD bond and bank guarantee covering the component of anti-dumping duty is sustained. However, the levy of fine and penalty at this stage is pre-mature and this condition is thus dispensed with.
In the course of adjudication, the respondent /authorities will make a reference to the CAROTAR, 2020 (Rules of Origin under Trade Agreements (FTA/PTA/CECA/CEPA)) which states that the designated director of the ICD/CBIC has been designated as a Nodal Officer for taking up issues relating to issuance of place of origin and obtain a determination from the Nodal Officer in this case - petition disposed off.
-
2021 (2) TMI 1099
Levy of Service Tax - supply of tangible goods - transfer of right to use or not - petitioner was providing material handling object, namely, cranes to Bharath Heavy Electricals Limited (BHEL), the sixth respondent herein, on “transfer of right to use” basis - Section 4 of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The petitioner has rendered service. It was supplying tangible goods, viz. 10T Mobile Cranes numbering 11/12 on daily rental basis. These material handling equipments were hired by the sixth respondent BHEL as per the agreement dated 07.12.2011. The terms of the agreement which has been extracted above indicate that the petitioner has not transferred the Mobile Cranes to the sixth respondent BHEL. On the other hand, the petitioner has provided its driver for operating the Cranes. It was under the supervision of the sixth respondent BHEL. The agreement further states that crew of the petitioner who worked during the first shift shall not be engaged in the second shift - Under the agreement, the petitioner was merely required to supply required number of cranes for the purpose of material handling and for the purpose of loading/unloading. The facts that the lifts will be operated by the drivers of the petitioner and that the crane will not be parked inside the 6th respondent BHEL premises after the stipulated working hours make its clear that it is the petitioner who was in effective control of these material handle equipments / cranes. Further, the agreement also indicates that trip register should be maintained by the petitioner's driver and that in case the loss of original trip register, the sixth respondent BHEL should not entertain the claim of the petitioner.
In RASHTRIYA ISPAT NIGAM LTD. VERSUS COMMERCIAL TAX OFFICER, COMPANY CIRCLE, VISAKHAPATNAM [1989 (12) TMI 325 - ANDHRA PRADESH HIGH COURT], the the Andra Pradesh High Court came to a conclusion that the transfer of right to use goods necessarily involves delivery of possession by the transferor to the transferee and transfer to effective control.
There is neither transfer of effective control nor transfer of possession over the material handling equipments / cranes in favour of the sixth respondent BHEL under the agreement - Petition allowed - decided in favor of petitioner.
-
2021 (2) TMI 1098
Validity of attachment order passed before the expiry of period of filing of an appeal - service of notice - HELD THAT:- submission of the revenue to the effect that the entire tax becomes payable immediately upon dismissed of an appeal by the first appellate authority thus, appears to be misconceived - An assessee aggrieved by an appellate order should have the full benefit of the period granted for filing of appeal and it is only thereafter that proceedings may be initiated recovery of the disputed demand.
There is support in this regard from a decision of a learned Single Judge of this Court in COIMBATORE PIONEER MILLS LIMITED VERSUS COMMERCIAL TAX OFFICER, PEELAMEDU NORTH ASSESSMENT CIRCLE, COIMBATORE AND ANOTHER [2007 (3) TMI 696 - MADRAS HIGH COURT] wherein a direction has been issued to the Department not to initiate steps for recovery till such time the time for filing of second appeal has expired.
A direction is issued to the 2nd respondent to lift the impugned attachment forthwith - Petition allowed - decided in favor of petitioner.
-
2021 (2) TMI 1097
Interest for delay in payment of G.S.T. - validity of adjudication orders - HELD THAT:- Learned counsel for the State and the CGST Council are required to seek specific instruction s on this issue and make their stand clear by the next date. Let these cases appear on 14th January 2021.
-
2021 (2) TMI 1096
Stay on various action such as sale of mortgaged property till completion of Liquidation proceedings - Scope of Liquidation estate - Appellant is aggrieved by the order of Adjudicating Authority as they have directed the Appellant Bank not to take any coercive steps such as sale of the properties mortgaged to the bank by the Respondent Companies till the completion of the Liquidation proceedings of the corporate debtor - HELD THAT:- The assets of the subsidiaries are outside the purview of liquidation estate and as such cannot form part of the liquidation estate as per section 36 (4) of IBC - The Adjudicating Authority and Appellate Authority being the creation of statute will have to ensure generally all the statutory compliances, unless it goes against the principle of natural justice and the intention of the legislature.
Since, these exclusive securities were not forming part of liquidation estate, correctly done by Liquidator to comply with the provisions of Section 36 of the Code and precedence of this Appellate Tribunal already exists & the Code vide Section 36(4)(d) prohibits inclusion of assets of Indian or Foreign subsidiary of the Corporate Debtor in the liquidation estate, we have to set aside the impugned order of the Adjudicating Authority and allow the present appeal.
Appeal allowed.
............
|
9911796707
