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Showing 321 to 340 of 1398 Records
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2020 (10) TMI 1078
TDS u/s 195 - Rates specified in Section 206AA - plea of the Assessee that the payments made to non-resident were not chargeable to tax and therefore the Assessee was not under any obligation to deduct TDS - Requirement to furnish Permanent Account Number - rate at which tax has to be deducted is not at higher rate as prescribed by Sec. 206AA at the rate applicable as per the Treaty for Double Taxation Avoidance (DTAA) between India and the country of which the payees were tax residents - whether Sec. 206AA of the Act has a non obstante clause and therefore it overrides the rates prescribed in DTAA? - whether the assessee has to deduct tax at source at the rates prescribed in section 206AA in case the payees are unable to furnish their PANs, even in cases where tax liability arises out of the treat?
HELD THAT:- As in the case of Sanofi Pasteur [2013 (2) TMI 589 - ANDHRA PRADESH HIGH COURT] as observed that DTAA being a sovereign matter, the machinery provisions cannot override or control that. Reliance was also placed on the decision of the Hon'ble Karnataka High Court in the case of Kaushallaya Bai [2012 (6) TMI 451 - KARNATAKA HIGH COURT] wherein it has held that the provisions of section 206AA are to be read down.
The Special Bench held that DTAA overrides the Act, even if it is inconsistent with the Act. DTAAs are entered into between two nations in good faith and are supposed to be interpreted in good faith. Otherwise it would amount to the breach of Article 253 of the constitution.
As in the case of Danisco India Private Limited [2018 (2) TMI 1289 - DELHI HIGH COURT] held that where reciprocating states mutually agree upon acceptable principles for tax treatment, the provision in Section 206AA (as it existed) has to be read down to mean that where the deductee i.e. the overseas resident business concern conducts its operation from a territory, whose Government has entered into a Double Taxation Avoidance Agreement with India, the rate of taxation would be as dictated by the provisions of the treaty. No merit in the appeals of the Revenue
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2020 (10) TMI 1077
Additions towards amount lying in bank account as unexplained money - additions towards amount lying in HSBC bank account, on the sole ground that the assessee is owner of the bank account and he is having beneficial interest in money lying in said bank account - HELD THAT:- A close look at the provisions of section 69A it is abundantly clear that in order to bring any money or other valuable articles within the ambit of said section, the Ld. AO has to prove that the money is belong to the assessee.
Initial burden is on the assessee to prove that the money or other valuable articles found in his position is not belongs to him.
In the present case, one has to see, whether the money found in HSBC bank account is belongs to the assessee or his brother. In this case, the assessee right from beginning has made it very clear that the bank account belongs to his brother and he was named only as a second holder for the purpose of nomination and for the sake of convenience. To justify his claim, the assessee has filed a letter and affidavit from his brother stating that his brother Mr.Dipak V. Galani is the owner of the bank account and he was opened a bank account in his capacity as a non resident in the year 1998.
Bank account was opened by his brother as a first account holder and the assessee was included in the bank account as a second account holder, which is very clear from the base documents relied upon by the Ld. AO, where the assessee name appears as a second account holder. Base documents itself clearly states the creation of identity of the assessee as date of 19/06/2003, and it is clearly stated therein that assessee account holder No.2.
The passport detail of assessee as per base documents clearly shows him to be residing at Vienna (as place of having establishment) with place of birth as Baroda.
The legal address in base documents is taken from the birth place mentioned in the passport as permanent address, otherwise the address of the assessee in Vienna is also mentioned in passport as taken is present address.
Thus it is very clear that the bank account in the name of assessee and is brother and his brother as account holder No.1 is clearly established the fact that bank account is belongs to his brother, but not to the assessee and this fact has been further strengthened by the letter of the assessee’s brother, dated 09/03/2015, where he has categorically accepted the ownership of bank account and money lying in said bank account. These facts have been disregarded by the Ld. AO without providing any basis for the same.
Account was opened in 1998, when the assessee himself and Mr. Dipak Galani permanently resided in outside India for 30 years and had no intention to come to India at that time. Further, both of them have no source of income in India, during the course of their residence abroad. Therefore, we are of the view that entire motive as presented by the Ld. AO defines all logic of opening of a secret bank account in Geneva, by NRI to stash unaccounted income taxable in India fails. AO mechanically disregarding all explanations furnished by the assessee as to the ownership of the account along with the corroborative materials is contrary to the settled position of law, because, once assessee has provided a reasonable explanation about ownership, then the onus was on the Ld. AO to establish that account belongs to the assessee.
Thus assessee right from day one has disowned the bank account. Further, the brother of the assesee has filed a letter to the Ld. AO along with affidavit and claimed that the bank account is opened by him in his capacity as NRI and whatever money lying in bank account is belongs to him.
AO was erred in making additions towards amount lying in bank account as unexplained money of the assessee.
Additions made towards return on investments @17% PA on year basis - HELD THAT:- Once, it was established that bank account was not belongs to assessee and he was not a beneficial owner, then further additions towards estimated return of income on said unexplained money is arbitrary - account was opened by the Appellant's brother with the British Bank of Middle East. Therefore, the reliance placed by the AO on the account opening information appearing on the website of HSBC Bank cannot be relied upon.
Further, the account was opened by the Appellant's brother in 1998, whereas the website information sought to be relied upon by the AO pertains to accounts sought to be opened at about the time of the assessment proceedings, i.e. around 2013. Such reliance on website information is impermissible as the same is merely based on fanciful presumptions. The AO has not brought any material on record to justify the use of account opening information as at time of assessments to presume and arrive at the conclusion that the same would be applicable to an account alleged to have been opened by the Appellant 15 years earlier.
Owning the bank account and the investment by Non Resident out of sources of funds available abroad is still not taxable in India. AO has failed to point out any iota of evidence to prove that the funds of USD 3 million invested in opening bank account represent income from undisclosed sources earned/ accrued to appellant in 1998. The Appellant has no sources of income in India up to 2002 and the same has already been assessed on record in assessment proceedings earlier. The statement of Assets and liabilities and Income has been filed on record - having established that Appellant is NON-RESIDENT in AY 1999-2000 and complete absence of any source of taxable income in India, the addition u/s 69 made by AO in AY 1999-2000 on account of investment of USD 3 million in opening the bank account with HSBC and consequent estimation of return of investment @ 17% PA as Unexplained Investment is highly unjustified.
Addition made towards bank account in the name of the assessee is incorrect. Accordingly, we direct the Ld. AO to delete additions made towards amount lying in bank account. Similarly addition made towards estimated return of investments @17% on said additions is also incorrect. Accordingly, we direct the Ld. AO to delete additions made towards estimated return of investments for all assessment years. - Decided in favour of assessee.
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2020 (10) TMI 1076
Accrual of income - Addition being notional interest income - Revenue recognition method - system of accounting - computed @17.95% on loan advanced to group concern - HELD THAT:- Where the principle amount of loan/advance is doubtful of recovery interest thereon cannot be accrued and added to income even under the mercantile system of accounting. Our view is fortified from the decision in the case of CIT v. Motor Credit Co. P. Ltd. [1980 (4) TMI 64 - MADRAS HIGH COURT].
Hon'ble High Court of Delhi in the case of CIT v. Goyal M.G. Gases (P) Ltd. [2007 (7) TMI 241 - DELHI HIGH COURT] has held that when the realization of even the principal amount of loan was in jeopardy, there could not be any real accrual of income by way of interest, even as per the mercantile system of accounting.
Thus on given set of facts there is no accrual of interest even though the assessee's following the mercantile system of accounting and the charge of notional interest by the AO/CIT(A) is bad on facts and deserves to be deleted. We direct accordingly. Appeal of the assessee is allowed.
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2020 (10) TMI 1075
TP Adjustment - comparable selection - assessee is aggrieved with the removal of 2 comparable companies that is CG Vak and R Systems - HELD THAT:- TPO applied turnover filter and the various courts have held that turnover filter is a important filter which is a tool to eliminate large entities which enjoys considerable advantage with their huge revenue generation ability and capability to absorb fixed overheads - turnover of CG Vak is 59 times lessar than the assessee. “It is one of the reason that this company’s revenues are coming down and its profits also declining. Since this company failed in revenue filter and as submitted by the Ld DR that this segment is declaring consistent losses over the years, we do not see any reason to include this as comparable company. Accordingly, contention of the assessee is rejected.
R Systems - We notice from the submissions of the Ld AR that R systems has disclosed their financial information and revenue generation from BPO segment. The financial information clearly indicate that this company has BPO segment and declared their financial results segment-wise.
Thus this company is functionally comparable with this assessee company. The separate BPO segment financial results is available for the period January to December. Since the financial results are available only for Jan-December, we notice from the decisions of the coordinate benches that it has consistently approved the method of working out the segmental data from the existing records and obtaining last quarter i.e., January to March from R Systems to compile the data for the period April to March and then directing the TPO to make the analysis of comparability study by including this company as comparable company - refer this issue back to TPO/AO to include this company as comparable company and work out the segmental data for the period April to March’2010.
Risk adjustment - Whether the assessee has any marketing and technical risk compared to comparables?- HELD THAT:- Assessee is a captive service provider and earned income out of the transaction by cost plus basis. It can be seen that the assessee has encountered the risk of having a single customer, whereas the same cannot be said with regard to comparables. The comparables may be dealing in market and therefore they were prone to the marketing and technical risks. They may have incurred certain expenditure on marketing in order to mitigate the risk. Therefore, the risk encountered by the assessee cannot be said to be equal risk attached to the comparables in such a situation. TPO output to have calculated the risk adjustment.
Working capital adjustment - HELD THAT:- Since TPO has not calculated the risk adjustment and working capital adjustment to the net margin of the comparables for bringing them on par with the assessee company. Even though assessee has made its submission before TPO as well as DRP. Therefore we are inclined to remit this issue also back to the file of TPO/AO to calculate the risk adjustment and working capital adjustment by collecting the relevant information. Accordingly ground raised by the assessee is allowed for statistical purpose.
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2020 (10) TMI 1074
Passing final assessment order without passing of draft assessment order - non-compliance with the mandatory provision contained in Section 144C(1) - assessee contented that AO in the second round of the extant proceedings flowing from the order of the Tribunal restoring the issue for a fresh determination, ought to have first passed the draft order before the final order, which he did not - HELD THAT:- As admittedly no draft order has been passed in the second round of proceedings in the instant case, wherein the AO directly proceeded to pass the final assessment order, we declare the assessment order as invalid. See - TURNER INTERNATIONAL INDIA PVT. [2017 (5) TMI 991 - DELHI HIGH COURT] - Decided in favour of assessee.
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2020 (10) TMI 1073
Imposition of penalty - principal argument of Revenue is that by virtue of the proviso to Section 114A of the Act, 1962, separate penalty cannot be imposed on the person under Section 112 of the Act when the very same person has been penalized under Section 114A - HELD THAT:- Whether redemption in the redemption fine and penalty was justified or not is essentially a finding of fact and no material has been adduced by the Revenue to establish that the order of the Tribunal was perverse.
Appeal dismissed.
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2020 (10) TMI 1072
Summon Order - applicants argued that the impugned summoning order is a proforma order passed over printed proforma with no application of judicial mind - HELD THAT:- Whatever is in other cases is with regard to facts involved in those cases and in criminal case parity of this kind may not be claimed. Rather what is ground for filing this application and where is abuse of process of law has to be mentioned for having indulgence of this court. Hence under above pretext, this file reveals that this complaint was filed by Registrar of Companies u/s 211(3A)(3C) of the Companies Act, 1956 read with AS-15 and AS-13 against Gopal Das Bansal and three others with this contention that Mammon Concast was incorporated as Private Limited on 24.5.2010 under Companies Act having its registered office at 144, Kaveri Kunj, Phase II, Kamla Nagar, Agra. As per memorandum of Companies Registration Book Gopal Das Bansal, Shashank Goyal, Sagar Bansal and Anup Kumar Goyal are Directors of this Company. Hence they are responsible for the act of Company, as per the provisions of Section 211(3A)(3C) of the Companies Act, 1956, and under section 5 of the Companies Act. They will be treated as officers in default.
A Judicial Magistrate is not required to pass order on the analytical analysis of fact and evidence at the stage of passing order u/s 204 Cr.P.C. - The mere requirement is that the Magistrate has to see as to whether prima-facie case is there to proceed further or not. In the present case, complaint was filed by Registrar of Companies with accusations and documentary evidence in support of it, which were Inspection report submitted by the office of Regional Director (NR), Ministry of Corporate Affairs, New Delhi. Hence there was sufficient prima-facie case to proceed further and pass summoning order. This was not under abuse of process of law.
Application dismissed.
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2020 (10) TMI 1071
Scheme of the special Statute - Fraudulent / malicious petition - It is the case of the petitioner that simultaneously, there also an execution of Deferred Payment Facility Agreement dated 15.11.2010 between CD and respondent No.3 which is a financial company in the name of BMW India Financial Services Private Limited. - principles of natural justice - HELD THAT:-This Insolvency and Bankruptcy Code, 2016 is the Act to consolidate and amend laws relating to re- organization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximization of value of assets of such person, who promote entrepreneurship, availability of credit and balance, the interest of stake holders including alteration in the order of priority of payment of Government dues and to establish an insolvency and bankruptcy board of India and for matters connected therewith and incidental thereto.
The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in Section 3(12) in a very wide terms as meaning non-payment of a debt once it becomes due and payable, which includes non- payment of even part thereof or an installment amount. The Code gets triggered the moment default is of ₹ 1 lakh or more in view of Section 4 of the Code. The corporate insolvency resolution process may be triggered even by the corporate debtor itself or a Financial Creditor or Operational Creditor. A clear distinction is made by the Code between debt owned to Financial Creditors and Operational Creditors. The Code has further prescribed that when it comes to Financial Creditor, triggering the process under Section 7 becomes relevant under the explanation to Section 7(1), a default is in respect of financial debt owned by any Financial Creditor of the Corporate Debtor, it needs to be a debt owned to the applicant Financial Creditor. A debt may not be due if it is not payable in law or in fact, but the moment the adjudicating authority is satisfied that a debt has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the default within seven days of the receipt of the notice from the adjudicating authority.
In the instant case, the financial creditor, namely, BMW Indian Financial Services Private Limited has presented the petition being Company Petition (IB) No.161 of 2017, in which a clear opportunity of hearing is given to the petitioner and the corporate debtor, as well. The corporate debtor i.e. CD has filed detailed objection raising multiple contentions.
Petition dismissed.
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2020 (10) TMI 1070
Disqualification of Director - non-filing of financial statements and annual returns - Section 92 and Section 137 of the Companies Act, 2013 - HELD THAT:- Evident it is from the pleadings that the Company in question did not file its financial statements and annual return for the financial years 2015-16, 2016-17 and subsequent financial years. It is also an admitted fact that the petitioners were noticed on 25.5.2017, 23.4.2018 by the Registrar of Companies regarding non-filing of financial statements and annual returns for financial years 2015-16, 2016-17 and 2017-18. Section 92 and Section 137 of the Companies Act, 2013 mandates filing of Annual Return and the Financial Statements with the Registrar. These provisions also contemplate penal action for non-compliance thereof. The petitioners have duly accepted the fact of non-filing of Annual Return and Financial statement; however, attributes it to be officers of the Company. The Company has also been put under Corporate Insolvency Resolution Process w.e.f 20.7.2017 under Section 9 of the Code 2016 vide order passed by the National Company Law Tribunal, Ahmedabad.
The petitioners having inhered the disqualification have resulted in alleged disqualification which in given facts cannot be faulted with - Furthermore the relief sought by the petitioners to drop all civil and criminal actions if any taken by the Registrar of Companies besides being preemptive are contingent in nature which cannot be granted in a petition under Article 226 of the Constitution as the petitioners fail to establish breach of any legal right.
Petition dismissed.
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2020 (10) TMI 1069
Stay to the Look Out Circular (LOC) issued against the Applicant/Petitioner - Permission to travel abroad at the earliest - HELD THAT:- Admittedly, the Applicant has been at the helm of the affairs of the UIL since its incorporation as stated in para 5 of the Writ Petition. UIL has availed various credit facilities from consortium of Banks comprising of Respondent No.3-State Bank of India (Lead Bank), Central Bank of India, Bank of Maharashtra, Indian Overseas Bank, UCO Bank, Dena Bank, Andhra Bank, ICICI Bank, IDBI Bank, Bank of Baroda, Oriental Bank of Commerce. The financial facilities availed of by UIL were to the tune of ₹ 2,500 crores. The loan account of the UIL was classified as NPA on 2 October 2016 and the outstanding dues of UIL as of today are stated to be close to ₹ 3,300 crores.
On further query as regards Mr. Prateek Gupta who is also one of Directors of UIL as also the guarantor (and against whom also the Complaint is filed by the Respondent No.3-SBI) and who is stated to be the son of the Applicant, it is stated that he is also residing abroad. Perusal of the medical papers of the Applicant shows that the Applicant is not suffering from any serious illness and which cannot be treated in Mumbai. If the Applicant is permitted to travel abroad, the likelihood of securing her presence in Mumbai seem remote, if investigation is to be carried out by CBI. In the Interim Application, the Applicant has averred in paragraph 17 that due to the suspension of Air Travel on account of Covid-19 pandemic, no family member of the Applicant was able to travel to Mumbai. Now that the Air Travel restrictions are easing and/or in the process of being eased, the Applicant’s family members can travel to Mumbai to be with her.
Interim Application is dismissed.
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2020 (10) TMI 1068
Maintainability of application - initiation of CIRP - Appellant submitted that the Adjudicating Authority erred in going into the defence that the Corporate Debtor – Company had internal disputes with one of the directors and that such defence put up by the Corporate Debtor could be looked into to refuse to admit the Application under Section 9 of I & B Code, 2016 - HELD THAT:- The stand taken by the Corporate Debtor shows that the branch office of Corporate Debtor had not communicated with the head office and they wanted to verify and confirm the transactions. The internal disputes of the directors would not be relevant for throwing out of the Application under Section 9 of I & B Code, 2016. In any case, that was not a dispute which was raised or communicated to the Operational Creditor any time before Notice under Section 8 was sent. In the facts of the matter, we find that the Adjudicating Authority erred in approaching the Application under Section 9 and the form submitted in a manner as if a plaint was being examined or it was some suit. Considering the format and particulars required to be given in the format, if the Application is complete, it is required to be admitted unless the Corporate Debtor shows Pre-Existing Dispute. Here the dispute raised was that there was no dealing between the Corporate Debtor and the Operational Creditor; that there was no agreement. However, the same Corporate Debtor had in reply referred to its dispute with the branch office and stated that they wanted to verify the transaction.
The matter remanded to the Adjudicating Authority - appeal allowed by way of remand.
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2020 (10) TMI 1067
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is apparent from record that there was a Pre-Existing Dispute between the Parties.
When there were clear documents raising disputes, it was not appropriate for the Adjudicating Authority to enter into procedure in the nature of Trial of Civil Suit. It was a matter which would require adjudication before the appropriate Court. The Impugned Order itself shows that the Operational Creditor was aware regarding the dispute relating to sub-contract and pleaded before the Adjudicating Authority that it was with good intention to get the work completed, that the Operational Creditor had sub-contracted work. Whether or not Operational Creditor could sub-contract was issue for appropriate Court to decide. Nature of Proceedings under Section 9 of IBC are summary & disputed questions of facts already raised before Notice under Section 8 of IBC, cannot be investigated.
Thus, there was a pre-existing dispute in this matter when Demand Notice under Section 8 was issued - application cannot be admitted.
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2020 (10) TMI 1066
Application for withdrawal of application - benefit of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 availed - HELD THAT:- In view of the Scheme having been availed by the Assessee, the Appeals arising out of the Order passed by the learned Tribunal and the subsequent order dated 8.8.212 passed on the Application for Rectification are dismissed as withdrawn.
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2020 (10) TMI 1065
Construction Services - full amount received towards provision of services - N/N. 1/2006 -ST dated 01.03.2006 - benefit denied on the ground that Cenvat credit was availed under N/N. 15/2004 dated 10.09.2004, in the month of March 2006 - construction of residential complexes - period from 16.06.2005 to 30.09.2007 - Time Limitation.
Whether the demand of service tax of ₹ 1,03,22,449, on the full amount received towards provision of services, is justified denying the benefit of notification 1/2006 -ST dated 01.03.2006 claimed, on the ground that Cenvat credit was availed under Notification 15/2004 dated 10.09.2004, in the month of March 2006? - HELD THAT:- The contention of the appellant is not correct because the Notification No.15/2004 dated 10.09.2004 automatically gets nullified after the introduction of notification No.01/2006 dated 01.03.2006; therefore the question of availment of notification no.15/2004 and notification no 01/2006 for the month of March 2006 does not arise; even though the cenvat credit pertained to the period only upto 28.02.2006 the same is not eligible for utilization for the month of March 2006 and onwards. Whereas the appellant submits that the restriction in taking cenvat credit of service tax on input services has commenced only from 01.03.2006; from this date onwards the appellant is barred from taking cenvat credit of service tax on input services; cenvat credit, availed, on input services under the provisions of Rule 3(1) of the Cenvat Credit Rules, 2004 till 28.02.2006 does not lapse; the appellant is permitted by Rule 4 of the Cenvat Credit Rules, 2004 to utilize such cenvat credit; Rule (4)(e) allows the appellant to utilize the cenvat credit so taken for payment of service tax on any output service.
The issue is no longer res integra; there is no provision under Notifications 1/2006 or 15/2004 that such credit legally availed prior to 1.3.2006, under the provisions of CCR,2004, would lapse. Therefore, the appellants are eligible to utilise the cenvat credit, availed by them, on inputs/input services, prior to 1.3.2006. we find that to that extent demand is not sustainable.
Whether the Appellant is a service provider rendering services of "construction of residential complexes", in terms of Section 65 (30) (a) of the Finance Act, 1994 read with Section 65 (105) (zzzh)ibid and as to whether, the demand of Service Tax of ₹ 6,79,14,900 for the period from 16.06.2005 to 30.09.2007 against the appellants is tenable? - HELD THAT:- The learned adjudicating authority has relied heavily on the fact that the agreement is a tripartiate agreement; the appellants are rendering service to the ultimate buyers of the flats; suitable advances were taken from the customers, therefore, the appellants cannot be held to be developers doing service to themselves as explained in Board Circular No.108/02/2009 dated 29.1.2009 and to that extent the Circular is not applicable in their case - what is to be seen is whether the contract was a service contract simplicitor or a works contract. Learned Commissioner had no occasion to follow the judgment of Hon’ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] - Going by the facts and circumstances of the case, it is found that the contracts are composite contracts and therefore, not leviable to service tax before 1.6.2007. The show-cause notice proposes to demand service tax on construction of residential complexes service after 1.6.2007, even though they are works contracts being composite in nature.
Whether the show cause Notice is time barred? - HELD THAT:- The show-cause notice proposes to demand service tax on construction of residential complexes service after 1.6.2007, even though they are works contracts being composite in nature. Therefore, service tax demand after 1.6.2007 also cannot be confirmed - Learned advocate for the appellants has also raised the issue of limitation and submits that the facts are known to the Department when the audit was conducted in 2007 and therefore, the show-cause notice is time barred.
Appeal allowed.
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2020 (10) TMI 1064
Delay in filing of appeal - Proof of delivery of adjudication order - 100% EOU – STPI - Refund of unutilized CENVAT credit - input services used for providing the output services exported during the period October 2009 to March 2010 - rejection on the ground of time limitation - Section 37C of Central Excise Act, 1944 - HELD THAT:- As per the respondent, the Order-in-Original dt. 29/02/2012 was issued on 09/03/2012 and the appellant has filed the appeal before the Commissioner on 05/02/2013 which is beyond the period as prescribed in Section 85(3A) of the Finance Act, 1994. We further find that the Department has not been able to establish by any cogent evidence that the Order-in-Original was actually delivered to the appellant. Further we find that the appellant was not aware of the issuance of the Order-in-Original dt. 29/02/2012 and they wrote 3 follow-up letters dt. 11/07/2012, 21/08/2012 and 17/10/2012 enquiring about the status of the adjudication. These letters, in spite of the fact that they were received by the Department, were not responded to at all by the Department and the Department did not inform the appellant regarding the status of their adjudication. Not only this, the appellant has also filed a RTI application before the CBEC but the same has not yielded any result.
The High Court of Rajasthan in the case of M/S RP CASTING PVT LTD VERSUS THE CUSTOM, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI AND ANR [2016 (6) TMI 996 - RAJASTHAN HIGH COURT] and M/S. VINOD CHOUDHARY VERSUS UNION OF INDIA & OTHERS [2016 (5) TMI 834 - RAJASTHAN HIGH COURT] have also categorically held that the Department has to prove the delivery of the orders and dispatch of the order is not sufficient for the purpose of calculating the period of limitation for filing the appeal before the Commissioner(Appeals).
The appeal of the appellant is within time from the date of receipt of Order-in-Original - case remanded to the Commissioner(Appeals) - appeal allowed by wayof remand.
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2020 (10) TMI 1063
Calculation of Interest for delayed payment of Excise Duty - relevant date - period of dispute is September, 2005 to March, 2015 - whether the demand of interest is to be calculated from the date of clearance of goods upto the date of actual payment of duty or from the date of determination of due amount till actual date of payment of duty?
HELD THAT:- Similar issue arose before the Division Bench of this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE, CHENNAI VERSUS LUCAS TVS LTD. [2009 (12) TMI 828 - CESTAT CHENNAI] wherein the facts were that vide adjudication orders dated 9.1.1995 and 10.02.1995, the demand of over ₹ 34 lakhs was determined. These demands were set aside by the Commissioner (Appeals) vide an order dated 20.06.1995. The order-in-appeal was set aside by the Tribunal and the matter was remanded to the Commissioner (Appeals) vide Final Order dated 24.01.1997. The demand was re-confirmed by the Commissioner (Appeals) vide order dated 26.12.2000. It was the contention of the Revenue that since the demand of ₹ 34 lakhs, earlier confirmed in Jan., /Feb., 1995, although set aside by the Commissioner (Appeals) earlier in June, 1995, was restored by the subsequent order of the Commissioner (Appeals) dated 26.12.2000. As the determination of the duty had taken effect in Jan./Feb., 1995, therefore, due to delay in payment of duty, the assessee was liable to pay interest from August, 1995. This Tribunal held that final determination can be said to have been made on 26.12.2000 with passing of the order of the Commissioner (Appeals) after remand.
In the facts of the present case also, the Commissioner (Appeals) has redetermined the duty liability by his order dated 28.02.2015, as the demand was set aside for the period 14.01.2007 to 09.03.2010 and only re-determined for the period August, 2005 to Jan. 2007 - the appellant /assessee is liable to pay interest for one month i.e. from 1.3.2015 to 31.03.2015, which they have admittedly paid.
Appeal allowed - decided in favor of appellant.
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2020 (10) TMI 1062
Compounding of offences - penalty proceedings - Whether the Assessing Officer was justified in adopting a gross profit higher than that conceded in the returns and books and accounts on the mere ground of compounding having been made of the offence detected by the Intelligence Wing?
HELD THAT:- The Assessing Officer ought to have looked at the total number of brands sold by the assessee and the ones which are in higher demand. This would have indicated whether the 13 brands, the gross profit of which was adopted by the Intelligence officer, were the most moving brands in the Bar of the dealer. The Assessing Officer ought to have applied his mind and not adopted the findings in the penalty proceedings as conclusive.
As to the stock variation having resulted only an equal addition; the Assessing Officer could have made a further addition for the variations undetected, which were probable. Having not done that, the State cannot argue that the enhancement of gross profit is also taking into account the stock variation; which reasoning, in any event, is not available in the order of the Assessing Officer.
The question of law has to be answered in favour of the assessee and against the Department - Revision allowed.
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2020 (10) TMI 1061
Eligibility for Sales Tax Exemption - time limitation - exemptions to industrial units or reduction in tax, payable on the sale or purchase - non-submission of loan document before due dates - HELD THAT:- The pith and substance of the contention of the respondents, throughout from Exts.P12, P19, P21 and 22 had been that the petitioner did not fulfill the conditions of not having submitted an application for loan before 1.1.2000 and the land having purchased on 1.12.2001 entailing into dis-entitlement of exemption, in my view is wholly preposterous and fallacious, much less erroneous that neither the District level Committee nor the State Level Committee noticed the documents and the submissions of the petitioner, extensively.
The Hon'ble Supreme Court in a matter of similar nature Pepsico India Holdings P.Ltd. case [2009 (5) TMI 529 - SUPREME COURT], while applying the question of interpretation of the notification observed that the notification dated 3.11.1999 was issued in terms of an industrial policy; whereto exemption was to be granted for a period of seven years and it was observed that obtaining of provisional registration in respect of SSI unit was sufficient.
It is deemed appropriate to fix the time line in taking the decision, which is fixed as forty five (45) days from the date of receipt of certified copy of this judgment - petition allowed.
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2020 (10) TMI 1060
Denial of issuance of Form-‘C’ by the concerned authority - benefit of concessional rate of tax - purchase of High Speed Diesel - HELD THAT:- There is nothing to prejudice the review petitioners. This Court had only set aside the circular dated 11.10.2017, issued by the State of Jharkhand in its Commercial Taxes Department, denying the issuance of Form-'C', to the writ petitioners and as a necessary consequence thereof, held the writ petitioners entitle to refund of the tax deposited by them. Since it was brought to the notice of this Court that pursuant to the Form-‘C’ issued in obedience of the interim orders passed by this Court, provisional credit notes had also been issued to the writ petitioners by the review petitioner Oil Company, we made it clear that the provisional credit notes shall be given effect to, and in any case, if the CST has been deposited to the State Exchequer, the respective Oil Companies shall be entitled to claim the refund thereof.
There is no occasion for review of the Judgment and Order dated 28.8.2019 passed by this Court in W.P.(C) No. 6048 of 2017 and the analogous matters, rather, if the refund of the CST deposited to the State Exchequer in the State of West Bengal is refused by the State authorities of West Bengal, it is open to the writ petitioners or even to the review petitioners to approach the appropriate forum for the required relief. We only want to make it clear that so far as the State of Jharkhand is concerned, in paragraph-27 of our Judgment, we have already given the liberty even to the review petitioners to claim the refund from the authorities concerned, if the amount of CST had already been deposited by them in the State Exchequer.
Review application dismissed.
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2020 (10) TMI 1059
Benefit of exemption - use of firewood as fuel or as Raw Material - demand of additional tax against the petitioner in the assessment under Section 12(4) of the Orissa Sales Tax Act - whether exemption from taxation granted to sale of firewood can be extended to sale of firewood to be used as raw material for manufacturing of paper?
HELD THAT:- Entry of Firewood at serial no. 13B of the Schedule to the exemption notification No. 20206-CTA-14/76F dated the 23rd April, 1976 intended the such firewood to be used as fuel and not as a raw material for manufacturing of paper. Once the firewood is put to any other use than as fuel, it would not be entitled to exemption of tax. It is trite that an exemption notification has to be construed strictly. A person claiming exemption provision to relieve him of tax liability must explain clearly that he is covered by the relevant provision. Unlike ordinary taxing statute, in the event of ambiguity, an exemption clause or provision has to be construed in favour of revenue.
There are no merits in this revision petition so as to warrant any interference - revision petition dismissed.
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