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Showing 281 to 300 of 920 Records
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2020 (4) TMI 640
Demand of service tax alongwith interest and penalty - free services - service tax along with interest paid by the appellant before issue of show cause notice - HELD THAT:- The entire calculation of service tax demanded from the appellants was in respect of free services and in respect of each free service Revenue had presumed that the appellant had collected ₹ 625/- which is also clear from the show cause notice that the said figure of ₹ 625 was not forthcoming out of any record in respect of free services maintained by the appellants - the amount of around ₹ 15 lakhs confirmed along with interest and penalty from the appellants being presumptive is not sustainable.
Other amount confirmed and appropriated along with interest - HELD THAT:- The same are not contested by the appellant and therefore, we do not interfere to the same.
Penalties - HELD THAT:- Since the penalties were in respect of such demand confirmed by the Original Authority where the amounts were paid with interest before issue of show cause notice, we, therefore, set aside all the penalties imposed under Section 78 of Finance Act, 1994.
Penalty of ₹ 10,000/- imposed upon the appellants under Section 77 of FA - HELD THAT:- The appellants were already registered and therefore, the said penalty is not sustainable.
Appeal allowed in part.
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2020 (4) TMI 639
CENVAT Credit - inputs and input services used in the power plant - electricity supplied to the different units, beyond factory premises - Whether, the CESTAT was justified in not relying the case of SINTEX INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE [2013 (6) TMI 178 - GUJARAT HIGH COURT], M/S. MARUTI SUZUKI LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III [2009 (8) TMI 14 - SUPREME COURT] and M/s Ultra Tech Cement Ltd versus CCE, Ahmedabad, [2009 (8) TMI 96 - SC ORDER], wherein the facts are similar to the present case?
HELD THAT:- The Tribunal while allowing the appeal of the assessee relied upon its own order dated 09.04.2015 passed in the case of the very same assessee but Revenue has not thought fit to challenge the order passed by the Tribunal dated 09.04.2015 referred to in Paragraph No.4 of the impugned order.
Well if that be the position, then we see no good reason to look into the matter any further - the two questions of law, as proposed by the Revenue cannot be termed as substantial questions of law - appeal dismissed - decided against appellant.
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2020 (4) TMI 638
Garnishee Order - Initiation of Coercive action for recovery of the disputed tax and penalty - periods from June, 2014 to March, 2017 - APVAT Act, 2005 - revision petition and the stay petition were pending - Complaint of the petitioner is that while both the revision petition and the stay petition were pending, the respondents could not have initiated the recovery proceedings - HELD THAT:- The judgments cited by the learned counsel for the petitioner in ANAB-E-SHAHI WINES AND DISTILLERIES PRIVATE LIMITED VERSUS APPELLATE DEPUTY COMMISSIONER, SECUNDERABAD DIVISION, NAMPALLY, HYDERABAD AND OTHERS [1995 (3) TMI 439 - ANDHRA PRADESH HIGH COURT], show that this Court consistently and continuously held that wherever there is a provision for grant of stay in an appeal or higher proceedings, coercive steps cannot be taken unless and until the authorities dispose of the applications filed under such provisions.
The garnishee order is quashed - petition allowed.
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2020 (4) TMI 637
Classification of goods - Bio Marine - Ecornax - Zoonami - whether fall under the categories of aqua feed/bacterial culture/organic manure or not? - HELD THAT:- These products are organic manures that are used for environmental protection and stability in prawn hatcheries and shrimp culture. The order of the Assessing Authority is completely bereft of any facts at all in support of his conclusion adverse to the petitioner and reliance is placed solely on the clarification issued in the case of the third party dealer.
Mr.Hariharan requests that the matter may be remanded back for de novo consideration - there are no reason to accede to this request insofar as the period of assessment is 2004-05 and there is a lapse of 15 years from the period of assessment till date - Petition allowed - decided in favor of petitioner.
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2020 (4) TMI 636
Rejection of order of dismissal from the civil services passed by the disciplinary authority - HELD THAT:- It is a case wherein the petitioner has been provided with opportunity of hearing, he has been provided with an opportunity to cross examine the witnesses, basis upon which in the first enquiry report the charges having not been found to be proved but in the second enquiry report three charges have been found to be proved - This Court is of the view that since the fact finding has been recorded by the second enquiry officer, basis upon which the order of punishment of dismissal from services has been passed which has been affirmed by the appellate forum, but, the appellant/writ petitioner has failed to point out any infirmity in the decision making process, warranting this Court to interfere with the charges or the finding recorded by the enquiry officer and therefore, this Court is not inclined to interfere with the same in exercise of power of judicial review by appreciating the evidence otherwise, this Court will be said to be a Court of appeal as has been held by the Hon’ble Apex Court hereinabove.
This Court is not interfering with the finding recorded by the enquiry officer but interfering with the quantum of punishment of dismissal from services by quashing and setting it aside - In consequence thereof, the order passed by the disciplinary authority and the appellate authority are quashed to the extent of quantum of punishment.
The matter is remitted before the disciplinary authority to take fresh decision on the quantum of punishment within a period of three months from the date of receipt of copy of the order - Appeal allowed by way of remand.
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2020 (4) TMI 635
Classification of goods - rate of GST - Bagasse based Particle Board manufactured with a composition of 75% of bagasse, 25% of wood particles and 5 kgs. of resins - whether fall under serial No.92 of Schedule II [GST rate 12%) or under Sr. No. 137A of Schedule III (GST rate 18%) of the Notification No. 01/2017-Integrated Tax [Rate] dated 28.06.2017? - Sr. No. 92 of Schedule-II of Notification No.01/2017- IGST (Rate] dtd. 28.06.2017 - HELD THAT:- The ‘Bagasse board’ has specific entry at Sr. No. 92 in Schedule II to the Notification No.01/2017- Central Tax (Rate), dated 28.06.2017. Accordingly, the said entry covers Bagasse boards falling under Chapter 44 or any other Chapter and attracts concessional GST rate of 12%. The entry covers Bagasse Board manufactured from bagasse only.
Apart from the Particle Boards mentioned in entry at Sr. No. 92 in Schedule II to the Notification No. 01/2017- Central Tax (Rate), dated 28.06.2017, the other Particle Boards cover in entry at Sr. No. 137A in Schedule III to the Notification No. 01/2017- Central Tax (Rate), dated 28.06.2017.
In the present case, Bagasse based Particle Board to be manufactured by the applicant is a composition of bagasse & wood particles and not only of bagasse, therefore, same would be covered under entry at Sr. No. 137A in Schedule III to the Notification No. 01/2017- Central Tax (Rate), dated 28.06.2017 and attracts GST rate of 18%.
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2020 (4) TMI 634
Exgibility to tax - rate of GST - Mango Pulp - whether classified under Chapter heading no. 08045040 of the Custom Tariff Act, 1975 or otherwise? - HELD THAT:- The entry No. 51 of the Notification No. 02/2017-Central Tax (Rate), dated 28.06.2017 confined to only ‘Mangoes in fresh’ form. Whereas, Mango Pulp is obtained from mango fresh after carrying out process of cutting, de-stoning, refining and packing. Thus, ‘Mangoes in fresh’ and ‘Mango Pulp’ are not same one, as both are separately classified under different Chapter sub-headings of the Customs Tariff Act, 1985 - ‘Mango Pulp’ is specifically classified under Chapter sub-heading no. 0804 50 40 of Customs Tariff Act, 1975. However, the classification of item, ‘Mango Pulp’ is not specified in GST Tariff. The Entry No.453 of Schedule-Ill of Notification No.01/2017Central Tax (Rate) is a residuary entry, cover goods which are not specified in Schedule I, II, IV, V or VI of the notification. This entry covers all “Taxable Goods” which are not specified in this notification.
‘Mango Pulp’ would be squarely covered under the entry No.453 of Schedule III of the Notification No.01/2017- Central GST (Rate) dated 28.06.2017, which attracts rate of GST @18%.
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2020 (4) TMI 633
Levy of GST - Classification of Supply - rate of GST - activity of purchase of land and selling the said land by converting in to integrated residential sub plots of varying sizes under name of “Bliss Homes” with basic facilities - HELD THAT:- The activity of purchase of land and selling the said land by converting in to integrated residential sub plots of varying sizes under the name of “Bliss Homes” with the basic facility is liable to GST.
The activities of applicant will fall under the clause (b) of paragraph 5 of Schedule –II of Gujarat Goods and Services Tax Act and Central Goods and Services Tax Act. Hence the activities of the applicant attract 9% CGST and 9% SGST as per serial no 3 of Notification No. 11/2017 Central Tax (Rate) dated 2806-2017.
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2020 (4) TMI 632
Classification of goods - rate of GST - Technical Varnish and Medium used in printing industry - HELD THAT:- “Medium”/ “Technical varnish” is independent product and is being sold to the printing industries. In the production of printing ink, varnish can refer to either a combination of oils, resins, waxes, solvents and other materials used as an ink vehicle. The use of varnish tends to increase the gloss of a printed ink. ‘Technical Varnish’/ ‘Medium’ are liquid used in printing ink. As such, ‘Technical Varnish’/ ‘Medium’ and ‘Printing ink’ are having separate identity and, hence, both are distinct products.
The Explanatory Notes for Tariff Heading 3208 includes “Varnishes” but excludes ‘Printing inks’ which though having a similar qualitative composition to paint, are not suitable for painting applications (heading 32.15).
The Tariff Heading 3215 covers all Goods, including printing ink, writing or drawing ink and other inks, whether or not concentrated or solid, fountain pen ink, ball pen ink. As the ‘Varnishes’ are different than “Printing ink” and are specifically covered under Tariff Heading 3208, the same do not fall under Tariff Heading 3215.
Thus, HSN code of the product “Technical Varnish”/ “Medium” is 3208.
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2020 (4) TMI 631
Input Tax Credit - manufacture and supply of salt and bromine chemicals - credit on bunds which are constructed and used in the manufacture of salt and bromine chemicals - zero rated supply or not - HELD THAT:- Section 16(2) of IGST Act states that “subject to the provisions of sub-section (5) of section 17 of the Central Goods and Services Tax Act, 2017, credit of input tax may be availed for making zero-rated supplies, notwithstanding that such supply may be an exempt supply.” - Whereas as per section 2(47) of the CGST Act, exempt supply includes nil rated supply and non-taxable supply.
Thus, as per section 16(2) of the IGST Act, Input tax credit is available on inputs and input services to make Zero rated supplies (such supply may be an exempt supply), subject to the provisions of sub-section (5) of section 17 of CGST Act. As per Clauses (c) and (d) of Section 17(5) of the GST Acts, input tax credit is not admissible in respect of works contract services or any goods and services for construction of immovable property (other than plant and machinery). Thus, a specific exception is made with regard to “plant and machinery.
Input tax credit of GST paid on goods and services used to construct the “bunds” is admissible to M/s. Satyesh Brinechem Private Limited, provided that the bunds are used for making zero rated supplies and fulfill the conditions which are necessary for treating the bunds as “plant and machinery”.
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2020 (4) TMI 630
Tender for appointment of Chartered Accountants Firms for assignment of internal audit of retail vending liquor shops - Eligibility criteria prescribed by Respondent-Chhattisgarh State Marketing Corporation Limited (CSMCL) to participate in tender proceedings - Clause 2.1 of the tender notification, which holds that firm of Chartered Accountants who have experience of audit for at least 2 years in last 3 financial years, of Government Organization/Govt. PSU in Liquor business are only eligible to apply as Internal Auditors of Shops - whether Clause 2.1 is arbitrary or it is inserted to extend undue benefit to any specific Firm of Chartered Accountants?
HELD THAT:- Undisputedly, the tender notification is for engagement of the professionals i.e. Firm of Chartered Accountants for the purpose of internal audit of retail vending liquor shops. It is also not in dispute that prior to year 2017, the retail sale of liquor was not managed by the Respondent-CSMCL, but it is managed by the private entities/persons after obtaining yearly contract for sale of country made liquor and foreign liquor separately. The explanation offered by learned counsel for the Respondent-CSMCL that the reason for inserting Clause 2.1 in the tender notification on account of the new tax system has been brought into effect by introducing a new Act known as “Central Goods and Services Tax Act, 2017” cannot be ignored - The submission of learned counsel for the Petitioner that Clause 2.1 has been inserted only to extend benefit to the Chartered Accountants Firms already engaged by Respondent-CSMCL in the previous years also do not appear to be correct when the pleading made by Respondent-CSMCL in its reply to the writ petition and application for grant of interim relief that out of five zones, in three zones, new Chartered Accountants Firms participated and this pleading has not been reverted by learned counsel for the Petitioner.
As the submission of learned counsel for the Respondent has not been controverted by the learned counsel for the Petitioner that in three zones, new Firms of Chartered Accountants have participated and out of which, one of the Firm is outside of the State of Chhattisgarh also shows that the argument raised by learned counsel for the Petitioner that eligibility criteria, particularly, Clause 2.1 of the tender notification is tailor-made to extend the benefit to existing Chartered Accountants Firms, is also not sustainable and hereby repelled.
The allegation/ground raised by learned counsel for the Petitioner that Clause 2.1 of the tender notification is only to extend benefit to existing Chartered Accountants Firms do not stand - Petition dismissed.
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2020 (4) TMI 629
Jurisdiction - Validity of order of prohibition - confiscation of goods - authority competent to pass the prohibition order - Section 67(2) of CGST Act - It is urged that the authority competent to pass the order should not be below the rank of Joint Commissioner while the order impugned has been passed by the Deputy Assistant Commissioner, who is not competent to pass the order of Prohibition.
HELD THAT:- As per the provisions of Section 67(1) of the Act, power of inspection is specified to an officer not below the rank of joint commissioner. The said officer for the purpose of search as specified in Section 67(1) (a) and (b) may authorize in writing any other officer of Central Tax for inspection of any places of business of the taxable person or the persons engaged in the business of transporting goods or the owner or the operator of warehouse or godown, as the case may be. Similar is the provision of Section 67(2) of the Act.
In this view of the matter and looking to the order of prohibition so passed in GST INS 03, the said order passed by respondent No. 1, without reference to the order of authorisation in writing, is illegal and without jurisdiction. Therefore, it is hereby set aside - Petition allowed.
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2020 (4) TMI 628
Kar Vivad Samadhan Scheme - Tax arrears - petitioners have not paid the amounts demanded within the specified time limit - HELD THAT:- Under similar circumstances, this Court has passed an order in the case of Sri Balaji Finance v. Income-tax Officer [2010 (9) TMI 498 - MADRAS HIGH COURT] in which it is stated that payment of amount by assessee beyond 30 days but within a reasonable time as per amendment order would satisfy the requirements of Kar Vivad Samadhan Scheme, 1998.
Writ petition is allowed and the impugned order is set aside. The first respondent is directed to issue necessary certificate under Section 90(2) of the Finance Act, 1998 to the petitioner, within a period of two months from the date of receipt of a copy of this order.
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2020 (4) TMI 627
Addition u/s 43D - additions on account of accrued interest on loans which are classified as "Non-performing Assets” - Scope of amendment brought to Section 43D - I.T.A.T. confirming the decision of CIT (A) deleting the additions - HELD THAT:- Legislature in his wisdom has found it fit to hold that accrued interest on bad debts and doubtful debts and Non-performing Assets which are not received by the institution cannot be taxed. In that view of the matter, we are in respectful agreement with the judgment of the earlier Coordinate Bench in the case of CIT V/s Bijapur District Central, Co-Operative Bank Ltd., Vijayapura [2018 (5) TMI 437 - KARNATAKA HIGH COURT].
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2020 (4) TMI 626
Rectification of mistake u/s 254 - Deduction u/s. 10A/10AA of income derived by way of royalty rejected by Tribunal - HELD THAT:- Assessee has brought to our notice a decision of SMT. ALPANA BHARTIA [2019 (4) TMI 1035 - KARNATAKA HIGH COURT] which the High Court took the view that there cannot be a miscellaneous petition filed u/s. 254(2) of the Act against an order passed in a Miscellaneous Petition u/s. 254(2) of the Act.
If the order under sub-section (2) of Section 254 is passed, the said order would not be available for rectification of mistake again under Section 254 (2) of the Act. The order passed under Section 254(2) cannot be rectified nor amended by invoking sub-section (2) of Section 254 once again. Repetitive applications under Section 254 (2) of the Act are not permissible. In the case on hand also, the Tribunal in exercise of its power under sub-section (2) of Section 254 has rectified the mistake apparent on the record and deleted the double addition of income in respect of the assessee. Thereafter, the Revenue again files an application under sub-section (2) of Section 254 seeking rectification of the order passed under sub-section (2) of Section 254 which is not maintainable. The Tribunal has rightly dismissed the Misc. petition filed by the Revenue - Miscellaneous petition by the revenue is dismissed.
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2020 (4) TMI 625
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- As brought to our notice that no expenses were incurred by the assessee for earning the exempt income. AO was of the opinion since the assessee had taken certain loans, he made disallowance under Rule 8D of the Rules - loan expenses were for car loan, business etc and not for purchasing the shares or earning of the exempt income - disallowance at the most has to be restricted at 0.5% of the cost of investment. This ground of assessee is partly allowed to that extent.
Profit on tea made out of purchased tea leaf - assessee has been consistently computing the respective income of Tea Estates in the state of West Bengal and Assam separately and computed the income of tea estates together practice/methodology of accounting has been consistently followed by the assessee for decades - HELD THAT:- AO while giving appeal effect of the ld. CIT(A)’s order for AY 2009-10 has accepted the computation of assessee (refer pages-57 of the P/B). Since we note that the assessee has been consistently following the computation of income separately for tea estates in West Bengal and Assam and computing the total income of tea estates together as per the doctrine of consistency the same ought to have been followed without disturbing the same. For that proposition we refer to the Hon’ble Supreme Court ‘s decision in RadhasoamiSatsang Vs. CIT [1991 (11) TMI 2 - SUPREME COURT]. Therefore, we direct the AO to adopt the pattern of computation as accepted by the department/consistently which was followed by the assessee and allow this ground of appeal.
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2020 (4) TMI 624
Disallowance of deduction claimed u/s 80JJAA - business of developing computer software - HELD THAT:- A.O. has incorporated the provisions of section 80JJAA of the Act relating to assessment year 2014-15 and has applied the same to both the years under consideration. It is pertinent to note that sub-section (3) of section 80JJAA as amended by Finance Act 2016 makes it clear that the provisions that existed before 1st day of April, 2016 shall apply to the earlier years, meaning thereby, the provisions, which are applicable to a particular year, should be applied for determining the eligibility of the assessee to claim this deduction. Accordingly, we set aside the order passed by CIT(A) on this issue and restore the same to the file of the A.O. with the direction to apply with the provisions of section 80JJAA of the Act as applicable to the years under consideration.
Nature of expenditure - claim of repair expenses incurred on lease hold building - revenue or capital expenditure - HELD THAT:- As rightly pointed out by A.R., in order to invoke the provisions of Explanation 1 to sec. 32(1), a finding has to be given first as to the nature of expenditure incurred by the assessee. If the nature of expenditure is capital in nature, then the provisions of explanation 1 to section 32(1) of the Act shall apply. It is the case of the assessee that most of the expenditure incurred by it on lease hold premises are revenue in nature.
Tax authorities have not examined the nature of expenditure incurred by the assessee. As furnished the various details of expenditure incurred by it on lease hold premises. This issue requires fresh examination at the end of the A.O., since the nature of expenditure incurred by the assessee is required to be examined in order to apply the provisions of Explanation 1 to section 32(1) of the Act. We set aside the order passed by the Ld. CIT(A) on this issue and restore the same to the file of the A.O. for examining it afresh.
Credit of MAT as per provisions of section 115JAA - Since the claim of the assessee requires examination at the end of the A.O., we restore this issue to the file of the A.O.
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2020 (4) TMI 623
Bogus purchases - assessee company is unable to substantiate its purchase from the claimed suppliers who had been already established hawala dealers from Sales Tax Department and investigation wing of the Income Tax Department - CIT(A) restricted the addition to 25% - HELD THAT:- As decided in the case of Pr.CIT v. M/s. Mohommad Haji Adam & Co.[2019 (2) TMI 1632 - BOMBAY HIGH COURT] held that the Tribunal correctly restricted the addition limited to the extent of bringing the Gross Profit rate on purchases at the same rate of other genuine purchases
We direct the Assessing Officer to restrict the addition/disallowance only to the extent of bringing the Gross Profit rate on alleged bogus purchases at the same rate of the other genuine purchases declared by the assessee after calling for the details and verification of records. The assessee is directed to furnish the necessary information in this regard.
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2020 (4) TMI 622
Penalty u/s 271(1)(c) - Defective notice - non specification of charge - HELD THAT:- Legal requirement of making a clear cut reference to the applicable limb of clause (c) of section 271(1) of the Act, is not met by the AO while initiating and levying the penalty u/s 271(1)(c) of the Act. Thus, the satisfaction of the Assessing Officer suffers from ambiguity in his mind.
We are of the view that such penalty is unsustainable in law legally. It is a settled legal proposition that the Assessing Officer is under obligation to specify the appropriate limb of clause (c) of section 271(1) of the Act at the time of initiation as well as at the time of levy of penalty. - Decided in favour of assessee.
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2020 (4) TMI 621
Exemption u/s 11 - registration u/s 12A denied merely on the basis of the Report of the Inspector - Assessee denied natural justice and has also not provided the opportunity to contradict the report of the Inspector - HELD THAT:- Inspector had conducted detailed enquiry and have also contacted various students who are exempted from paying the fees by the assessee trust. Neither the copy of the report was provided to the assessee nor the comments of the assessee were called for on the report of the Inspector. CIT(Exemption) without confronting the report of the Inspector have wrongly held that the assessee was into commercial activities.
CIT(Exemption) was under duty to provide the copy of the report of the Inspector to the assessee and thereafter the assessee should called upon to furnish its report and the assessee may also be called upon by the Ld.CIT(Exemption) to file any other documents to prove the genuineness of the activities of the assessee.
As the Ld. CIT(Exemption) has not followed the principles of natural justice and has also not provided the opportunity to contradict the report of the Inspector. Matter is required to be sent back to the file of Ld. CIT(Exemption) for fresh adjudication of the matter in accordance with law - Appeal of the assessee is allowed for statistical purposes.
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