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Showing 281 to 300 of 2076 Records
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2019 (3) TMI 1801
Jurisdiction to entertain petition - Validity of assessment order - levy of Purchase Tax - purchase of goods by commission agents on behalf of petitioners (principal) - intra-State purchase or not - Section 28(2) read with Section 25(6) of the Uttarakhand VAT Act - applicability of Section 3(10)(b) of the Uttarakhand VAT Act - HELD THAT:- Issuance of a show-cause notice contemplates that the response shall be considered and only thereafter will the matter be decided. The person asked to show cause has, therefore, full opportunity to satisfy the authorities that no action should be taken against him - The purpose of issuing a show-cause notice is to afford an opportunity of hearing and, once cause is shown, it is open to the authority to consider the matter in the light of the facts and submissions placed and only, thereafter, can a final decision be taken in the matter. Interference by the court before that stage would be premature.
Jurisdiction to entertain petition - HELD THAT:- Ordinarily, a writ court would not exercise its discretionary jurisdiction to entertain a writ petition questioning a notice to show cause unless the same, inter alia, appears to have been issued without jurisdiction - In very rare and exceptional cases, the High Court can quash a show-cause notice if it is found to be wholly without jurisdiction. A showcause notice does not give rise to any cause of action as it does not amount to an adverse order which affects the rights of any party. It is quite possible that, after considering the reply to the show-cause notice, the authority concerned may drop the proceedings and/or hold that the allegations are not established. A show-cause notice does not infringe the rights of anyone. It is only when a final order, otherwise adversely affecting a party, is passed that the said party can be said to have any grievance.
The jurisdiction of the High Court, under Article 226 of the Constitution, should not be permitted to be invoked in order to challenge a show-cause notice unless, accepting the facts in the show-cause notice to be correct, the show-cause notice is, ex facie, without jurisdiction, i.e., the notice is ex facie a ‘nullity’ or non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into the facts or totally “without jurisdiction” in the traditional sense of that expression - i.e., even the commencement or initiation of the proceedings, on the face of it, and without anything more, is totally unauthorised. In all other cases, it is only appropriate that the party shows cause before the authority concerned and takes up the objection regarding jurisdiction therein.
The learned Single Judge has also, without expressing any opinion on merits, relegated the appellants-writ petitioners to the remedy of filing a reply to the show-cause notice. Interference, in an intra-Court appeal, would be justified only if the order under appeal suffers from a patent illegality. The order under appeal does not suffer from any such infirmity - Appeal dismissed.
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2019 (3) TMI 1800
The Delhi High Court issued an order in cases W.P.(C) 2960/2019 and W.P.(C) 2962/2019. The caveats were discharged, and notices were issued to respondents, with proceedings before the DRT stayed. Counter affidavit to be filed within six weeks.
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2019 (3) TMI 1799
Imposition of penalty u/s 78 of FA at 50% of tax - Levy of service tax - service charges paid to Rajasthan Police on account of security charges - reverse charge mechanism - HELD THAT:- Tribunal in several decisions including g in the case of DY. INSPECTOR GENERAL OF POLICE VERSUS COMMISSIONER OF C. EX., BHOPAL [2017 (11) TMI 346 - CESTAT NEW DELHI] has held that the Police Department is performing statutory duties of providing security to the citizen including the bank. The amount so collected (cost recovers) is being deposited in the Government treasury.
Further, It was clarified vide Circular No. 89/7/2006-ST dated 18.12.2006, that wherever the charges collected by any sovereign public authority for carrying out any statutory function, the same is not liable to levy of service tax.
Penalty set aside - appeal allowed - decided in favor of appellant.
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2019 (3) TMI 1798
Levy of penalty u/s 76 and 78 of FA - Valuation - Business Auxiliary Service - non-inclusion of full consideration in assessable value - only ground agitated by Revenue is that penalty should be imposed under Section 76 also - HELD THAT:- Both the Sections deal with payment of penalties under different circumstances. Whereas Section 76 provides for payment of penalty for failure to pay service tax. Section 78 provides for payment of penalty where such non-payment of service tax is for reasons of fraud, etc. - The Adjudicating Authority, in the present case, has upheld the demand on the basis of Show Cause Notice alleging suppression of facts. Consequently penalty under Section 78 has been rightly imposed. There is no justification for imposition of penalty under Section 76, in addition to Section 78.
Appeal dismissed - decided against Revenue.
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2019 (3) TMI 1797
Liquidation of Corporate Debtor - extension of time pursuant to a unanimous decision taken by the COC - HELD THAT:- In the absence of any resolution plan and for want of time beyond statutory CIRP period; there is no other alternative but to order in conformity with the majority decision of the COC for liquidation of the corporate debtor under Section 33 (2) of the Code.
The application is allowed by ordering liquidation of the corporate debtor, namely M/S Ram Dev International Limited in the manner laid down in the Chapter Ill of Part Il of the Insolvency and Bankruptcy Code, 2016 - Application disposed off.
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2019 (3) TMI 1796
Non granting the credit of Dividend Distribution Tax paid u/s. 115-O as appearing in Form No. 26AS - levying interest u/s. 115P - HELD THAT:- Admittedly the present appeal filed by the assessee is against the order passed by the Ld. CIT(A) in the quantum assessment proceedings, wherein the issue of Dividend Distribution Tax payable u/s. 115-O of the Act does not find place. Hence, in our view, the remedy against the grievance of the assessee does not arise in the present appeal. However, it is open for the assessee to seek remedy in the manner known to law. Accordingly, we do not find any merit in the present appeal filed by the assessee and reject the same. Appeal filed by the assessee is dismissed.
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2019 (3) TMI 1795
Non-submission of proof regarding mandatory pre-deposit and not filing of application for Condoning of Delay - HELD THAT:- The order that has been impugned in the present appeal is the order dated 31 July, 2018 passed by the Commissioner (Appeals). A perusal of the order indicates that even that appeal was filed with a delay of 219 days and also without satisfying the condition of pre-deposit. The Commissioner (Appeals) accordingly dismissed the appeal for these two reasons. The normal period prescribed for filing the appeal before the Commissioner is two months, but in this case the appeal was not filed before him within the period of two months. The Commissioner can condone this delay if the appeal is filed within the further period of one month from the expiry of initial period of two months.
The appeal before the Commissioner (Appeals) was filed with a delay of 219 days, the Commissioner (Appeals) could not have condoned the delay and, therefore, dismissed the appeal.
Appeal dismissed.
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2019 (3) TMI 1794
Direction issued to cause an enquiry - HELD THAT:- It is directed that an inquiry be held in pursuance to the direction issued by the learned writ Court strictly in compliance with the provisions contemplated under the Companies Act, 1956. The parties may raise all objections as may be permissible with the statutory authority causing an inquiry into the matter under the Companies Act, 1956 in pursuance to the communication or the complaints received.
Appeal disposed off.
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2019 (3) TMI 1793
Imposition of penalty u/s 11AC of CEA - manufacture of paint brush - change in the rate of duty through issuance of various notifications - appellant continued to clear their goods at nil rate of duty, as was without knowledge of changes in rates - duty along with interest deposited on being noticed - HELD THAT:- Admittedly Revenue has picked up value of clearance from the records of appellant including their balance sheet. The balance sheet stand held to be a public document by various decisions of Tribunal and it stand concluded that reflection of entire fact in the balance sheet would amount to disclosure of factual position and would not involve any suppression of fact or misstatement with an intention to evade payment of duty. If that be so the element of mala fide is missing and would not call for imposition of any penalty.
The penalty set aside - Appeal allowed - decided in favor of appellant.
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2019 (3) TMI 1792
Maintainability of appeal - time limitation - appeals dismissed on the ground of limitation, as the appeals were preferred after 60 days and thereafter, the condonable period of one month i.e. after total period of 90 days - HELD THAT:- In the case at hand, the extraordinary situation pressed in service is to the effect that after passing of the assessment order, the petitioner was engaged in personal tragedy as his daughter was facing marital dispute, therefore, the appeal could not be filed within limitation or during the condonable period.
The extra ordinary situation pressed by learned counsel for the petitioners is not of such nature, which had paralysed the petitioner's business or his life. It is not in dispute that during the relevant period, the petitioner was carrying on his business, therefore, there was no such pressing emergency which did not permit the petitioner to prefer an appeal before the Commissioner (Appeals).
Petition dismissed.
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2019 (3) TMI 1791
Genuineness of Corporate Debtor - need to conduct Fornsic Audit in relation to the transactions took place between the creditors including respondent No. 2 and the corporate debtor - scope of Related Party - section 5(24), (24A) of the I and B Code, 2016.
Whether "Forensic Audit" needs to be conducted in relation to the transactions took place between the creditors including respondent No. 2 and the corporate debtor, to ascertain the genuineness or otherwise? - HELD THAT:- The balance-sheets of the corporate debtor clearly record the debt due and as such there can be no doubt of the genuineness of the transactions. The cash flow statements for the years 2013 and 2014 placed at pages 288 and 289 of the typed set filed with the counter by respondent No. 2 indicate under heading "non-current liability", "long-term borrowings" and "unsecured loan from directors" is ₹ 388,514,392 and ₹ 385,514,392 respectively. In other words, long-term borrowings does not include the amount of ₹ 2,49,28,86,436 as claimed by Mrs. Indira Anand vide loan agreement dated April 1, 2012 the loan agreement dated April 1, 2012 shows that monies advanced from time to time was agreed to be repaid by the corporate debtor on demand as unsecured loan till March 31, 2016 which obviously is a "non-current liability" falling within the ambit of "long-term borrowings". Therefore, the contention of the second respondent is not substantiated with the relevant documents of the corporate debtor - there requires a "Forensic Audit" to be conducted by the first respondent/resolution professional in order to examine the fraudulent, and avoidance transactions with regard to the claims of the creditors of the corporate debtor including the second respondent - the issue is decided in favour of the applicant and against the respondents.
Whether respondent No. 2 is falling within the ambit of the "related party" as defined under section 5(24), (24A) of the I and B Code, 2016? - HELD THAT:- The purport and object of section 5(24), (24A) read with proviso to sub- section (2) of section 21 of the I and B Code, 2016 is that a party which has vested interest/relation with the corporate debtor should not become the part of the CoC for the reasons that the decisions of the CoC must remain independent, as CoC is the pivot of the insolvency and resolution process. The decision of the CoC has far reaching consequences, which will have effect on the corporate debtor for its survival or liquidation and realization of the debt of the creditors. Therefore, the institution of CoC needs to be completely independent and free from any kind of influence based on vested interest either of the promoters or their closed relatives who may have stakes being creditors with respect to the corporate debtor. The provisions of section 5(24), (24A) of the I and B Code, 2016 appear to be incorporated to fulfil the said purport and object. The provisions of section 5(24), (24A) of the I and B Code, 2016 cannot said to be exhaustive but are inclusive - the second respondent is held to be "related party" to the corporate debtor, which shall have no right of representation, participation or voting in the meeting of the committee of creditors of the corporate debtor.
It is made clear that the claim of the second respondent shall remain subject to the outcome of the "Forensic Audit" directed to be conducted. Consequently, respondent No. 1/resolution professional is directed to delete the name of respondent No. 2 from the list of the CoC with immediate effect and get the "Forensic Audit" conducted for the purpose - application disposed off.
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2019 (3) TMI 1790
SSI exemption - Clandestine Removal - case of Revenue is that if such clandestinely removed goods are added in the value of clearances of M/s Kanpur Plast Industries, the same would increase the total clearances available in terms of SSI exemption - HELD THAT:- In the present case the Revenue has seized and finally confiscated the seized goods on the sole ground that they were removed clandestinely by M/s Kanpur Plast Industries and if the value of the same is included in the clearance value of M/s Kanpur Plast they would have crossed the exemption limit.
There is no justification to confiscate the goods or to impose penalty upon the present appellant - Appeal allowed - decided in favor of appellant.
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2019 (3) TMI 1789
Allotment of a residential apartment in a project - grievance of the complainant is that the possession of the apartment was not offered and even the construction was not completed despite they having already paid part payment to the OP - HELD THAT:- The learned counsel for the complainants states on instructions that in order to avoid any further litigation in the matter, the complainants are restricting their claim to the refund of the principal amount paid by them to the OP alongwith compensation in the form of simple interest @ 10% per annum w.e.f. 10.07.2017, which was the interest awarded by the Hon'ble Supreme Court to another allottee of this very project by way of a consent order dated January 28, 2019 in Civil Appeal Diary No.48101 of 2018, provided that payment is made within four weeks.
The OP shall refund the entire amount received from the complainants to them alongwith compensation in the form of simple interest @ 10% per annum w.e.f. 10.07.2017 till the date of entire payment, within four weeks from today, provided that the entire payment is made, within four weeks from today, failing which the interest shall be payable from the date of each payment to the OP, till the date of entire payment to the complainants in terms of this order.
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2019 (3) TMI 1788
EOU - Refund of CENVAT Credit - exempt goods or not - revised monetary limits prescribed by the CBEC vide instructions dated 11 July 2018 - HELD THAT:- The duty paid by the respondent at the time of clearance to DTA was duty of excise and therefore, the goods cleared by the respondent cannot considered as exempted goods. Since, 100% EOU have been given a different treatment for levy of duty, excisability of their products has to be determined from that perspective. The statutory provisions under Rule 2(d) of the Cenvat Credit Rules, 2004 do not speak of Tariff duty but the “duty of excise leviable thereon”, which was undisputedly levied in the case of the respondent. Thus, even on merits, the appeal of the revenue is not sustainable.
CENVAT Credit taken on the basis of photocopies - HELD THAT:- The Tribunal has held in number of cases that the credit on photocopies cannot be denied, unless it is proved that they are not genuine. We further find that the Assistant Commissioner in the order-in-original has observed that the respondent had supplied some original copies - the respondent had been repeatedly taking services of a limited number of service providers and in case of any doubt, the Revenue was at liberty to verify the genuineness of the credit taken on the basis of the photocopies.
Appeal dismissed - decided against appellant.
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2019 (3) TMI 1787
Cash payment towards donation/ capitation fee over and above the regular course fees - A.O. has relied upon the statement of Dr P Mahalingam, recorded during the course of search, under section 132(4) of the Income Tax Act against the assessee, in which he has admitted to have received capitation fees from the assessee in cash - HELD THAT:- AO recorded statement of assessee at assessment stage, in which, the statement of Dr P Mahalingam recorded under section 132(4) of the Income Tax Act, have been referred to, but, it is nowhere mentioned in which statement, if such copy of the statement was provided to assessee for explanation of assessee. The assessee denied to have made any cash payment to Dr P Mahalingam.
AO in the assessment order also did not mention any fact if statement Dr P Mahalingam have been provided to the assessee for his comments or was confronted to assessee at any stage. The assessing officer did not record in the assessment order if statement of Dr. P Mahalingam recorded at the back of the assessee by the Investigation Wing, was allowed for cross examination on behalf of the assessee at any stage, therefore, statement of third party, cannot be used against the assessee unless assessee has been allowed a right to cross-examine such statement. A.O. in the assessment order also did not mention, if any, material found during the course of search, was confronted to the assessee. Thus, assessee was justified in denying in making any cash payment to Dr. P Mahalingam at any stage. There is no material available on record to justify the addition against the assessee on merits - Decided in favour of assessee.
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2019 (3) TMI 1786
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of dispute within the meaning of Section 9(5)(ii)(d) of the Insolvency and Bankruptcy Code, 2016 or not - HELD THAT:- The records available shows that the amount due to the Applicant from the Respondent is in respect of supply of goods. Therefore, the amount claimed by the Applicant from the Respondent is operational debt within the meaning of section 5, sub-section (21) of the Code. The operational debt is due to the Applicant. Therefore, Applicant is an Operational Creditor within the meaning of sub-section (5) of section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default - That, amount is due from the Respondent to the Applicant. Respondent is a Company registered under the Companies Act. Therefore, Respondent is a Corporate Debtor within the meaning of sub-section (8) of section 3 of the Code.
The Application filed by the Applicant is complete in all respects - on the basis of material available on record it is a fit case to initiate Insolvency Resolution Process by admitting the Application under Section 9(5)(1) of the Code - Petition deserves to be admitted.
Petition admitted - Moratorium declared.
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2019 (3) TMI 1785
CENVAT Credit - job workers did not return the scrap generated during the process of job work to the appellant and the duty thereon was not paid by the appellant - period from September 2011 to March 2012 - Rule 4(5) of the CENVAT Credit Rules, 2004 - HELD THAT:- The appellant is not the manufacturer of the waste and scrap and therefore, there is no liability on the appellant to pay the duty on the waste and scrap manufactured at the job worker’s end. Further, the provision of Rule 4(5)(a) of the CENVAT Credit Rules, 2004 nowhere states that the waste and scrap generated at the job worker’s end makes the principal manufacturer liable to payment of duty on such waste and scrap.
The duty demand cannot sustain - Appeal allowed - decided in favor of appellant.
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2019 (3) TMI 1784
Valuation of goods at the hands of job-worker - waste and scrap - inclusion in assessable value or not - HELD THAT:- The issue at hand is squarely covered by the decision of Tribunal in LAWKIM LTD. VERSUS COMMISSIONER OF C. EX., PUNE-II [2007 (3) TMI 158 - CESTAT, MUMBAI] where it was held that a job worker who manufactures the intermediate product, is not liable to pay any duty thereon - also, in the identical issue in PR. ROLLING MILLS PVT. LTD. VERSUS COMMISSIONER OF C. EX., TIRUPATHI [2009 (3) TMI 444 - CESTAT, BANGALORE] this Tribunal held that scrap/ waste are intermediate goods not liable to duty, thus its value cannot be considered in the hands of job worker also confirmed by Supreme Court in COMMISSIONER VERSUS P.R. ROLLING MILLS PVT. LTD. [2010 (9) TMI 1072 - SC ORDER].
Appeal allowed - decided in favor of appellant.
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2019 (3) TMI 1783
Assessment order without meeting the mandatory requirements under Section 144C - draft assessment order not forwarded - HELD THAT:- Assessing Officer had not followed the procedure prescribed in the Act which was mandatory in nature, and hence the final assessment order was void. No curable defect under Section 292B - Decided in favour of assessee.
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2019 (3) TMI 1782
Disallowance of Provision for Warranty - provision made is on estimate basis and the reliability and correctness of the basis cannot be ascertained - CIT-A deleted the addition - HELD THAT:- When the year under assessment is first year of operation of the assessee who is manufacturer and trader of tyres of heavy vehicles sold along with warranty and was under obligation of replacement of the tyre sold during the warranty period on free of cost, if any component is found to be suffering from manufacturing defect, the basis for creating provision for warranty is scientific one.
So when the provision of warranty expenses has been made on the basis of actual warranty expenses met out during the period 01.04.2010 to 25.09.2010 qua the product sold during the year under assessment the entire estimate is based on the scientific basis. Moreover the provision for warranty made by the assessee has been duly audited at the time of auditing the financials of company. So in these circumstances we are of the considered view that Ld. CIT(A) has rightly deleted the addition made by AO on account of disallowance of provision for warranty. - Decided against revenue
Disallowance of Technical Know-How / Royalty - As alleged section 32(1)(ii) provides for depreciation @ 25% in case of intangible assets where the Technical know-how is specifically included under this category - HELD THAT:- Following the ratio of the judgment CIT vs. Sharda Motor Industries Ltd., CIT vs. Hero Honda Motors Ltd [2015 (2) TMI 368 - DELHI HIGH COURT] we are of the considered view that assessee company satisfied the test that transfer of technical know how / royalty by the continental AG to the assessee company was “non-exclusive and non-transferable” licence for the use of technology for manufacturing of tyres in India, which was only a production licence and for limited purpose for use for manufacturing of tyres. Even the termination clause 11.8 is very categoric as Even the termination clause 11.8 is very categoric.
Expenditure incurred by the assessee in accordance with TEA agreement pertaining to the technical “know-how” is quantified on the basis of sale / production effected by using such technical know-how is of revenue nature and as such allowable as business deduction. CIT(A) has also relied upon Circular no. 21 of 1969 issued by CBDT / clarified that when a licence is obtained for user of technical knowledge from a foreign participant for a limited period together with or without the right to use the patents and trademarks of the foreign party, the payment would not bring into existence an asset of enduring advantage to the Indian party. - Decided against revenue.
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