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Showing 321 to 340 of 1445 Records
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2024 (3) TMI 1125
Validity of Reopening of assessment u/s 147 - validity sanction u/s 151 - as argued approval has been applied for and granted mechanically - HELD THAT:- As stated that in the notice the transaction value was taken gross and subsequently it was seen that there were duplicate entries which were corrected while passing the order dated 19th April 2023. The notice issued does not contain any duplicate entries. If there were duplicate entries, the AO was duty bound to issue clarification in the order and also give details of what were those duplicate entries.
AO should have come clean on the error made. Therefore, if only the PCCIT or the other officers had bothered to see the records and had really applied their mind to the same, these errors would not have crept in. This displays total non-application of mind by all those persons who have endorsed their approval for issuance of notice u/s 148 of the Act. With great regret, we have to mention that these approvals are being granted mechanically and without application of mind and this is not the only matter.
Innumerable orders passed u/s 148A(d) of the Act are being set aside in view of the approval being granted without application of mind. Officer should realize that this is also delaying assessment/ reassessment proceedings and is also affecting the revenue of the nation. We find that the approval has been granted in a most casual manner. The power vested in the Authorities u/s 151 to grant or not to grant approval to the AO to reopen the assessment is coupled with a duty. The Authorities were duty bound to apply their mind to the proposal put up for approval in the light of material relied upon by the AO.
That power cannot be exercised casually on a routine perfunctory manner. The important safeguards provided in Section 147 and 151 were treated lightly by the officers. While recommending and granting approval it was obligatory on the part of the officers to verify whether there was any genuine material to suggest escapement of income. It was obligatory on all the Authorities and PCCIT in particular to consider whether or not power to reopen is being invoked properly.
We are of the opinion that if only the Authorities had read the record carefully, they would never have come to the conclusion that this is a fit case for issuance of notice u/s 148 of the Act. They would have either told the AO to correct the figures in Column 7 or would have sent the papers back for reconsideration. These officers have substituted the form for substance.
We, therefore, quash and set aside the impugned order passed u/s 148A(d) of the Act. The consequent notice issued u/s 148 of the Act also is also quashed and set aside.
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2024 (3) TMI 1124
Penalty u/s 271(1)(c) - loss on sale of machinery which was not eligible for deduction in the profit and loss account - assessee has made adjustment on the sale of plant and machinery in the block of asset which evidences that the assessee has not claimed any excessive depreciation therein, such loss on the sale of machinery was inadvertently not added back in the computation of income - HELD THAT:- We note that the assessee has made necessary adjustments in the block of assets of the plant and machinery which was also not doubted by the authorities below.
From the above, it is transpired that the assessee on one hand has adjusted the gross block of asset but on the other hand omitted to make the addition on the loss of sale of machinery to the total income of the assessee. Thus, we find there is a contradictory stand taken by the assessee as evident from the financial statement and computation of income. This contradictory stand of the assessee gives reason to believe that such mistakes has been committed by the assessee due to oversight and inadvertently, therefore we are of the view that the assessee should not made to suffer if such bona-fide mistake is committed by the assessee. Decided in favour of assessee.
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2024 (3) TMI 1123
Disallowance u/s 80P - claim disallowed u/sec. 143(1)(a)(ii) by way of “processing” as an instance of “incorrect claim if such incorrect claim is there from any information in the return” - HELD THAT:- Legislature has introduced such a disallowance provision in sec. 143(1)(a)(v) dealing with deduction claim(s) provided in Chapter-VI-A of the Act by way of Finance Act, 2021 w.e.f. 01.04.2021 with prospective effect whereas the assessment year herein is 2017-2018 only.
So far as the Revenue’s case quoting sec. 80AC is concerned, it would be very much relevant to observe that once the legislature itself has made the impugned provision in sec. 143(1)(a)(v); the same could not have led to the assessee’s 80P deduction disallowance in summary “processing”.
As in Veerappampalayam Primary Agricultural Cooperative Credit Society [2021 (4) TMI 1169 - MADRAS HIGH COURT] is also found to be distinguishable on facts as their lordships’ had dealt with assessment year 2018-2019 vide judgment dated 07.04.2021 thereby not having benefit of the amendment made in the Finance Act, 2021 in foregoing terms. That being the clinching fact that sec. 143(1)(a)(v) itself is not applicable in assessee’s case specifically dealing with filing of a sec. 139(1) return, sub-clause(ii) could not be pressed in action being in the nature of a general provision only.
We adopt principles of stricter interpretation as per Dilip Kumar And Co. & Ors. [2018 (7) TMI 1826 - SUPREME COURT] to conclude that both the learned lower authorities action disallowing the assessee’s sec. 80P deduction(s) claim(s) by way of sec. 143(1)(a)(ii) or 143(1)(a)(v) “processing” has to be reversed. Assessee appeal allowed.
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2024 (3) TMI 1122
Nature of loss - Marked to market loss on hedging of the transaction - treated as speculative loss or normal business loss - HELD THAT:- The issue is squarely covered by the various decisions in the case of CIT vs. Soorajmull Nagarmull [1980 (9) TMI 69 - CALCUTTA HIGH COURT] and in the case of CIT v. Badridas Gauridu (P.) Ltd. [2003 (1) TMI 61 - BOMBAY HIGH COURT].
The similar view has taken in the case of Shankara Infrastructure Materials Ltd. [2021 (7) TMI 306 - KARNATAKA HIGH COURT] wherein, it has been held that the loss incurred by the assessee on account of hedging the transaction to avoid higher loss on account of foreign exchange fluctuation was to be allowed as deduction u/s 37(1) of the Act. Appeal of the assessee stands allowed.
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2024 (3) TMI 1121
Penalty u/s 271(1)(c) - bogus claim u/s 80C deduction(s) is an instance of “furnishing inaccurate particulars of income” - HELD THAT:- It as a fit case for confirming the impugned penalty after having found the assessee having concealed his taxable income. A deviation regarding applicability of the statutory twin “limbs” of “concealment of taxable income vis-à-vis furnishing of inaccurate particulars thereof ” is not sustainable in law in light of hon’ble jurisdictional high court’s decision in Mohd. Farhan A. Shaikh [2021 (3) TMI 608 - BOMBAY HIGH COURT (LB)] - The impugned penalty is deleted in very terms.
Penalty u/s 270A(8) - non specification of corresponding limb(s) of “under-reporting of income in consequence of any mis-reporting”- HELD THAT:- Revenue could not dispute the clinching fact that although the learned lower authorities have levied 200% penalty(ies) in assessee’s case going by sec. 270A(8) on one hand; whereas they nowhere specify the corresponding limb(s) of “under-reporting of income in consequence of any mis-reporting” thereof; as prescribed sub-sec.( 9) containing (a) to (f) clauses. Faced with this situation, we adopt stricter interpretation as Dilip Kumar And Co. & Ors. [2018 (7) TMI 1826 - SUPREME COURT] and conclude that these twin penalties also deserve to be deleted.
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2024 (3) TMI 1120
Entitlement to benefits of treaty exemption - India-Singapore DTAA - Taxation of shipping companies - funds which have been received in Singapore or not? - assessee's first condition for Article 24 of India-Singapore Treaty to be applicable is that “income from sources in a Contracting State shall be exempt from tax or taxed at a reduced rate in that Contracting State” - HELD THAT:- Notably, even OECD commentary speaks of exemption from “source taxation” especially when discussing about permanent establishment being “exempted from tax in the source country”. Therefore, on a harmonious interpretation, Article 24 of the DTAA speaks of those incomes, which are exempted from “source taxation”, as well. This is for the reason that profits derived from operation of ships in international traffic, should be normally subject to tax in the country of residence under Article 8. However, this is subject to the limitation in Article 24 that such profits are remitted to Singapore, which follows a territorial system of taxation wherein offshore income is taxed in Singapore on part that only which has been received or remitted in Singapore.
Accordingly, in our considered view Article 8 of India- Singapore Tax Treaty exempts income earned by an enterprise from operation of ships in international traffic from “source taxation”, subject to such profits being remitted / or received in Singapore which alone are taxable in Singapore. Therefore, in our considered view, looking into the instant facts, the argument of assessee that condition “one” has not been satisfied in the instant facts cannot be accepted, for this would lead to Article 24 of the India-Singapore DTAA as being redundant / otiose and the non-resident taxpayer getting benefit of double non-taxation of India sourced income, which is clearly not intended under the India-Singapore Tax Treaty.
Accordingly, this argument of assessee is hereby rejected for the aforesaid reasons cited above.
Article 24 is not applicable to the instant facts because under the laws in force in Singapore, the said income is subject to tax on “accrual basis” and not by reference to the amount which is “remitted to or received in” Singapore - As the letter issued by IRAS does not refer to any statutory provisions under the Singapore Tax Laws and is more in the form of a unilateral opinion / declaration that since the income has been earned by the assessee on “accrual basis”, Article 24 of the DTAA (Limitation of Relief Clause) will have no applicability to the assessee’s set of facts. Since the entire case of the assessee for various assessment years under consideration hinges on the statement issued by the Singapore Tax Authority and as noted by the Gujarat High Court, the certificate is merely in the form of an opinion, in our considered view, it is a fit case where the basis of issuance of this certificate needs to be looked into in more detail, especially in the absence of any statutory provisions being cited in the aforesaid certificate of as to how the assessee is taxable in Singapore on “accrual basis” (especially when Singapore follows a territorial tax system where offshore income is taxable on receipts / deemed remittance basis) and on what basis the Singapore Tax Authority has come to the unequivocal conclusion that income has been derived from “business carried on in Singapore” by the assessee.
In the result, the matter is restored to the file of AO to verify the contents of the aforesaid certificate and in case, the Department is unable to obtain any specific material to rebut the contents of the certificate issued by Singapore Tax Authorities, then respectfully following the decision of Gujarat High Court in the assessee’s own case [2016 (9) TMI 19 - GUJARAT HIGH COURT] relief may be granted to the assessee, in accordance with law. Appeal of the assessee is allowed for statistical purposes.
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2024 (3) TMI 1119
Jurisdiction powers to issue Reopening notice in metro city - notice u/s 148 issued by an officer who had no jurisdiction over the Petitioner - accommodation entries of long term capital gain in penny stock - as alleged the return of income filed by the assessee is more than ₹ 30 lacs and as assessee is resident of Mumbai, the jurisdiction of the assessee lies with Astt. Commissioner of Income Tax or Dy. Commissioner of Income Tax and not with the Income Tax Officer - HELD THAT:- The instruction no.1 of 2011, dated 31st January, 2011, clearly provided that assessee being a corporate resident of metro city, having filed return of income at a loss of ₹2.73 crores, will have a jurisdiction of the Dy. Commissioner or Asst. Commissioner of Income Tax only.
As decided in case of Ashok Devi Chand Jain [2022 (3) TMI 1466 - BOMBAY HIGH COURT] considering the above instruction has categorically held that the notice issued in that case by the ITO, where the income of the assessee was ₹64.34 lacs is correctly without jurisdiction. The Hon'ble High Court also held that notice under Section 148 of the Act is jurisdictional notice and any defect therein is not curable. - Decided in favour of assessee.
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2024 (3) TMI 1118
LTCG - Disallowance u/s 54 - construction of new house begun before the sale of the old house - construction with the amount borrowed instead of actual sales proceeds - relevant date for taking possession of the property - as per AO two properties sold by the assessee during the assessment year under consideration when the assessee has taken possession of the constructed property after the date of sale of the two properties - HELD THAT:- Identical issue came up in the case of C. Aryama Sundaram [2018 (8) TMI 864 - MADRAS HIGH COURT] It is not a requisite of Section 54 that construction could not have commenced prior to the date of transfer of the asset resulting in capital gain. If the amount of capital gain is greater than the cost of the new house, the difference between the amount of capital gain and the cost of the new asset is to be charged under Section 45 as the income of the previous year. If the amount of capital gain is equal to or less than the cost of the new residential house, including the land on which the residential house is constructed, the capital gain is not to be charged u/s 45.
We further observed that in the case of CIT Vs. Kapil Kumar Aggarwal [2015 (12) TMI 1075 - PUNJAB AND HARYANA HIGH COURT] that section 54F of the Act, nowhere envisages that sale consideration obtained by the assessee from original capital asset is mandatorily required to be utilized for purposes of meeting cost of new asset. It was, therefore, held that where investment made by the assessee although not entirely sourced from capital gains but was within stipulated time and if more than capital gain earned by assessee, the assessee is entitled to exempt u/s 54F.
Hon’ble Allahabad High Court in the case of CIT Vs. H.K. Kapoor [1997 (8) TMI 44 - ALLAHABAD HIGH COURT] held that exemption on capital gains u/s 54 of the Act could be allowed notwithstanding the fact that the construction of new house had begun before the sale of the old house. Thus direct the AO to allow deduction u/s 54 of the Act as claimed by the assessee. Decided in favour of assessee.
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2024 (3) TMI 1117
Disallowance of VAT expenses - Disallowance as "fee" or "charge" u/s40(a)(iib) - assessee is a state government owned company which is engaged in wholesale business of foreign liquor in Chhattisgarh - CIT(A) deleted the additions / disallowance - HELD THAT:- Identical issue has been dealt with by the Co-ordinate Bench of the Tribunal, Raipur in assessee's own case for the A.Ys.2015-16, 2016-17 and 2017-18 [2022 (12) TMI 1498 - ITAT RAIPUR] relying upon the law laid down in the case of Kerala State Beverages Manufacturing & Marketing Corporation Ltd. [2022 (1) TMI 184 - SUPREME COURT] wherein as approved the view taken by the Hon’ble High Court of Kerala that as “surcharge on sales tax” is a “tax”, and Section 40(a)(iib) does not contemplate “tax”, and surcharge on sales tax is not a “fee” or a “charge”, therefore, no disallowance under the said statutory provision was called for in the hands of the assessee. Accordingly, finding no infirmity in the view taken by the CIT(Appeals), we uphold the same and the addition is vacated. Decided in favour of assesse.
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2024 (3) TMI 1116
TP Adjustment - corporate guarantee transaction given by the assessee on behalf of AE to a bank - HELD THAT:- We are of the considered opinion that there is no change in facts of this present appeal, this issue is to be remitted back to the file of the ld. A.O. with the direction to determine the arm's length price ('ALP' for short) on corporate guarantee commission on the basis of the interest saving approach of the international transactions by respectfully following the above said decision in assessee own case [2023 (12) TMI 1299 - ITAT MUMBAI]
Addition on account of arm’s length adjustment to income on interest from loans advance to AE - Neither the assessee nor the lower authorities have bench marked the transaction of the assessee lending money to its AE - A.O./TPO has considered 10.68% to be a reasonable estimation on the notional interest to be levied by the assessee on the basis of the crisil bonds and made an adjustment for the loan advanced by the assessee - TPO/A.O. has also without prejudice considered the safe Harbour Rules notified on 18.09.2013 for the loan transaction upto Rs. 50 crores where the interest rate to be applied has to be the base rate of State Bank of India as on 30th June which is 12.28% + 150 basis point during the year under consideration and held that 10.68% to be at arm’s length rate would be reasonable - HELD THAT:- CIT(A) has also not bench marked the said transaction and had merely restricted the rate of interest to be 5% keeping in view the earlier interest rate charged by the assessee and by stating that 5% would be a reasonable rate had the assessee advanced loan within India.
The assessee, on the other hand, has also not bench marked the said transaction and had charged 2% notional interest on the loan advanced to its AE. It is evidenced that to determine the arm’s length price of any international transaction, there has to be a reasonable bench marking conducted by both the sides. Here the assessee and the Revenue in the present case has not carried out the same. In the absence of such bench marking, we are not justified in upholding either the interest rate considered by the assessee nor by the ld. A.O./TPO and the ld. CIT(A). For this purpose, we deem it fit to remand this issue back to the file of the ld. CIT(A) for the purpose of bench marking the said transaction. Hence, ground allowed for statistical purpose.
Addition u/s. 14A read with Rule 8D - assessee had interest free fund more than the borrowed fund during the year under consideration - HELD THAT:- As there are various judicial precedence on the proposition that when there are mixed funds, then the presumption would be that the assessee has made investment out of the own funds and not borrowed fund for the purpose of investment which has yielded exempt income. It is also pertinent to point out that the decision relied upon by the assessee in the case of Vireet Investment Pvt. Ltd. (2017 (6) TMI 1124 - ITAT DELHI] has held that while computing the average value of investments only those investments which has yielded income are to be considered and not the investments which has not earned exempt income during the year. Hence, we deem it fit to remand the issue back to the file of the ld. A.O. for restricting the disallowance to the extent of the investment which has yielded the exempt income during the year under consideration and also to verify that the assessee had sufficient interest free funds during the relevant year where the assessee has made investment which had yielded the exempt income.
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2024 (3) TMI 1115
TP Adjustment - adjustment to the value of international transaction as against adjustment made by the TPO with reference to entire turnover of the assessee - HELD THAT:- TP adjustment cannot be made with reference to entire turnover of the assessee and ought to be restricted to the value of international transactions. We draw support from the decision of Hindustan Unilever [2018 (10) TMI 1611 - SC ORDER] Keihin Panalfa Ltd [2016 (5) TMI 203 - DELHI HIGH COURT] and Tara Jewel Exports [P] Ltd [2015 (12) TMI 1130 - BOMBAY HIGH COURT].
Respectfully following [supra], TP adjustment made by the TPO and sustained by the ld. CIT(A) cannot be sustained and is liable to be deleted as difference between operating profit margin of the assessee at 3.85% and that of comparable companies at 6.19% is 2.34%, no TP adjustment is warranted in terms of Proviso 92C(2) and if we look at the list of comparables exhibited elsewhere, we find that except for Hindustan Motors Limited, all other companies selected by the TPO are engaged in manufacture and sale of commercial vehicles and are therefore, functionally not comparable with the assessee, a company engaged in the manufacture and sale of passenger vehicles. - Decided against revenue.
Deduction u/s 43B - disallowance of amount of Excise Duty actually paid on purchase inputs and included in RG 23A Part II - HELD THAT:- A similar issue was considered by this Tribunal in [2018 (10) TMI 1398 - ITAT DELHI] and Hon'ble High Court of Delhi in assessee’s own case [2017 (12) TMI 590 - DELHI HIGH COURT]. The Assessing Officer is directed to decide the issue as per the directions given in earlier A.Ys 2009-10 and 20101-11 mentioned hereinabove to verify the claim and if found proper be allowed for deduction for amount forming part of RG 23A balance to the extent it has been directly paid to custom authorities. Ground Nos. 2.3 and 2.4 are allowed for statistical purposes.
Excess consumption of raw materials and components to be deleted placing reliance on two factors, namely, that the net difference of stock is negligible in tune with the observations of the Hon’ble Apex Court in M/s Maruti Suzuki India Ltd [2015 (8) TMI 493 - SUPREME COURT] and that the Tribunal has taken similar view in the assessee’s own case in the earlier assessment years including the immediately preceding year.
Disallowance u/s 14A - excess of own funds - HELD THAT:- As the assessee had surplus funds and that no disallowance of interest was called for u/s 14A of the Act.
Disallowance u/s 35DDA - HELD THAT:- Similar as per assessee’s own case [2017 (11) TMI 1632 - ITAT DELHI] A.Y 2008-09 we follow the decisions above and direct the Assessing Officer to allow the deduction under section 35DDA being 1 /5th of the total expenditure incurred by the appellant company, in respect of payment made to its employees under the voluntary retirement scheme.
TDS u/s 195 - Disallowance of payments made outside India u/s 40(a)(ia) - HELD THAT:- The co-ordinate bench in A.Y 2001-02 [2009 (5) TMI 1013 - ITAT DELHI] commission has been paid to the agents for the sale of the vehicles and re- imbursement of advertisement expenses incurred outside India. Obviously, these expenditures incurred outside India does not make them taxable in India under the Act and the non-resident itself is not taxable in India. Thus provisions of Section 195 will not be attracted in the case of these payments and the CIT (A) was right in deleting the disallowances made.
Nature of receipt - Sales Tax Subsidy - revenue or capital receipt - HELD THAT:- Hon'ble High Court of Delhi in [2017 (12) TMI 474 - DELHI HIGH COURT] answered the said issue in favour of the Assessee and against the Revenue to be treated as revenue receipt.
Not allowing set off of brought forward depreciation - Scope of amendment brought in provisions of section 32(2) of the Act by the Finance Act, 2001 w.e.f 01.04.2002 wherein it has been provided that unabsorbed depreciation could be used to set off against any head of income except salary - HELD THAT:- The claim was denied by the Assessing Officer placing reliance on pre-amended provision of section 32 of the Act.We are of the considered view that the Assessing Officer should consider the set off as per the amended provisions of the Act. We order accordingly and direct the Assessing Officer to consider the same as per relevant provisions of law. This ground is allowed for statistical purposes.
Excise Duty paid under protest - HELD THAT:- As decided in own case AY 2006-07 while dealing with 'Excise duty paid under protest' by holding that first the Profit and loss account be recast as per 'Inclusive method' in terms of section 145A and then some adjustments as stated above be separately made. Such directions are fully applicable pro tanto to the customs duty paid under protest. The AO is directed to follow the same - While following the same for AY 2007-08, Tribunal set aside the matter to the file of the Assessing Officer to decide it afresh as decided above by the ITAT after affording opportunity of being heard to the assessee. Thus this Ground is allowed for statistical purposes.
Disallowing liabilities on account of increased prices - HELD THAT:- There is no dispute that the same method of accounting is regularly and consistently followed by the assessee as such rule of consistency is applicable as per which under the similar facts and circumstances, department ought to follow same approach on an issue in other assessment years. We, therefore, respectfully following the reasoning adopted by the coordinate Bench of this ITAT for the AY 2007-08 [2016 (5) TMI 1469 - ITAT DELHI] set aside the matter to the file of the AO with direction to decide the issue afresh after affording opportunity of being heard to the assessee as per the first appellate order on the issue in the assessment year 2003-04.
Under valuation of stock - HELD THAT:- CIT(A) was convinced that the assessee has maintained complete records, matching of returned vehicles with sales returned report, finished goods stock report and finished goods stock valuation report. CIT(A) gave a factual finding that the vehicles which have been returned during the year and have remained unsold have been included in the closing stock of finished goods and have been accounted in the books of account.
No factual error has been pointed out in the findings of the ld. CIT(A). We, therefore, do not find any reason to interfere with the findings of the ld. CIT(A). This ground is dismissed.
Disallowance of long term capital loss as speculative loss - HELD THAT:- The co-ordinate bench in A.Y 2001-02 [2009 (5) TMI 1013 - ITAT DELHI] held that redemption of the preference shares cannot be held to be the sale of the shares and as there is no sale of the shares, there is no question of this being treated a speculative loss on the sale. It is further noticed that the revenue has not raised any specific ground that such shares were not held as stock-intrade and it is noticed that the shares are held by the assessee as investment. In the circumstances, we are of the view that this loss on the redemption of the preference shares cannot be treated as speculative loss.
Expenses incurred on club membership - HELD THAT:- As decided in own case A.Y 2009-10, [2018 (10) TMI 1398 - ITAT DELHI] such expenditure is allowed as business expenditure.
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2024 (3) TMI 1114
Bogus purchases - Burden of proof - purchase of pulses made by the assessee from one supplier as bogus on the basis of information received from the Income Tax Investigation Wing, New Delhi - CIT(A) deleted the additions - HELD THAT:- We find that the assessee in the instant case had duly discharged its burden by furnishing all the necessary documents to prove the veracity of the purchases from Supplier/Kamal Kishore Mukesh Kumar - goods purchased had been duly reflected in the stock registers maintained by the assessee and the same were sold by the assessee to two parties by making due reduction in the stock register to the extent of sales. Hence the purchases and corresponding sales were duly matched by the assessee in the instant case.
Sales made by the assessee is not doubted by the revenue and naturally the purchase made by the assessee cannot be doubted. The purchase made by the assessee from the said supplier had been duly reflected in the books of accounts and payments made for the same through account payee cheques out of disclosed sources of income.
Also ledger account of Supplier as appearing in the books of the assessee company for the period 1.4.2011 to 31.3.2012, wherein it could be seen that total purchases made during the year by the assessee from the said supplier was Rs 2,62,54,071.60 , out of this, the ld. AO is disputing the purchase made from this very same supplier only for the sum of Rs 2,16,83,820/-. How can the said supplier be genuine for the remaining supplies and be ingenuine only for the disputed supplies of Rs 2,16,83,820/-. Hence the entire case of the revenue falls flat - Decided in favour of assessee.
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2024 (3) TMI 1113
Adjustment of Penalties from Refund amount - Smuggling - foreign currencies - On appeal by the appellant, absolute confiscation was set aside by the Commissioner (Appeals) on payment of redemption fine and penalty and directed the respondents to release the confiscated foreign currency to the appellant on payment of the above dues. Accordingly, refund claim was filed by the appellant after payment of the redemption fine and the penalty as per the above order which was accepted by the Revenue.
HELD THAT:- Section 142 allows to recover the amounts that is due from the appellant from any money that is payable to him provided he is a defaulter but in the present case, the personal penalties of the co-noticees are being recovered as dues deeming the appellant as a defaulter which is beyond the scope of Section 142 of the customs Act 1962 - the penalties being penalty in personam against the individuals, same cannot be adjusted against the refund sanctioned to the appellant.
The Hon’ble High Court of Kerala in the case E. Abdul Rahiman Versus Union of India [2007 (12) TMI 232 - HIGH COURT OF KERALA AT ERNAKULAM] observed The penalty so levied being personal cannot be recovered from the importer or any other person. Therefore, the petitioner is not personally liable for the penalty levied on Shri Yahoo and the amount also cannot be recovered from the petitioner.
It is undoubtedly clear that personal penalty levied on the co-noticees cannot be recovered from the amount to be refunded to the appellant - the impugned order set aside - appeal allowed.
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2024 (3) TMI 1112
Refund claim - Payment of duty in terms of Notification No. 84/2017-Cus instead of availing full exemption under Notification No. 93/2017-Cus. - order of assessment in appeal not challenged - HELD THAT:- We find that on identical facts, this Tribunal has taken a matter for consideration in the case of M/s. Uma Export Ltd.[2023 (10) TMI 1176 - CESTAT KOLKATA]. As the issue has already been dealt by the Tribunal, we hold that when two beneficial Notifications are applicable to an assessee, it is the choice of the assessee to take the benefit of the Notification which is more beneficial to the assessee.
Further, in this case, the respondent had initially filed an application u/s 149 of the Customs Act, 1962 for amendment in the Bill-of-Entry which was pending before the ld. adjudicating authority. Thereafter, the respondent filed their refund claim. In these circumstances, it cannot be said that the decision in the case of M/s. ITC Ltd.[2019 (9) TMI 802 - SUPREME COURT] is applicable to the facts of this case as before filing the refund claim, the respondent had sought amendment in the Bill-of-Entry.
Thus, we do not find any infirmity in the impugned order. Accordingly, the same is upheld - In the result, the appeal filed by the Revenue is dismissed.
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2024 (3) TMI 1111
Demand of duty - Classification of Goods - Imported one consignment of ‘Bed sheet’, declared as Polyester Bed sheet - willfully mis-declaration of the goods - classifiable under CTH 5407 Or under CTH 6304 - confiscation - penalty - HELD THAT:- We find that a similar issue has been examined by this Tribunal in the case Commissioner of Customs (Port) vs. M/s. Silpha Finvest P. Limited [2024 (3) TMI 246 - CESTAT KOLKATA] and it was held that merit classification of impugned goods is under CTH 6304 whereas the Revenue wants to classify the same under CTH 5407. As the classification adopted by the adjudicating authority is not sustainable, therefore, we do not find any merits in the impugned order. Consequently, no penalty u/s 114A of the Customs Act, 1962 is warranted against the respondent.
Therefore, we dismiss the appeal filed by the Revenue.
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2024 (3) TMI 1110
Seeking to recover the refund already sanctioned - imported timber log and paid SAD - Sold timber after cutting and sawing - non-endorsement of the declaration - violations of Notification 102/2007-Cus - non-mention of Bills of Entry number on the invoice and mismatch of description - HELD THAT:- We find that the primary objection raised in the instant case is that the appellant have sold timber after cutting and sawing. This issue is specifically covered by the decision of Hon’ble Apex Court in the case of Variety Lumbers[2018 (6) TMI 1499 - SUPREME COURT], it has been held that the refund cannot be denied even if the imported logs were cut and sawn before sale.
Non-endorsement of the declaration in terms of para 2(b) of Notification 102/2007-Cus. The said para 2(b) requires the importer to mention on the invoices that no credit of additional duty of customs levied under sub section (5) of Section 3 of the Customs Tariff Act 1975 shall be admissible. We find that since the appellant is not a registered dealer, therefore the question of taking credit on the invoices issued by them does not arise.
Non-mention of Bills of Entry number on the invoice and mismatch of description and number of pieces on the invoices and bills of entry. In grounds of appeal it has been clearly indicated that stock requests duty certified by Chartered Accountant was produced at the time of filing refund. Following the case Overseas Polymers [2021 (1) TMI 1212 - CESTAT CHENNAI]. It is clear that minor discrepancies cannot be the reason for recovery of refund when the appellant had submitted Chartered Accountant certified stock report.
Thus, we do not filed any merit in the order, the same is set aside and appeals are allowed. The appeal of the Naresh Aggarwal, Director is also consequently allowed.
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2024 (3) TMI 1109
CIRP - Seeking a direction to admit the claim of the Appellant as Financial Creditor - HELD THAT:- The Application filed by the Corporate Debtor to stay the proceedings of suit in view of the moratorium imposed with effect from 07.04.2021, was allowed and proceedings in suit was stayed. However, the Appellant’s suit against the Agent, through whom the Units were booked was allowed to proceed. The possession letter dated 24.09.2014, which has been extracted above, clearly indicate that possession letter was accepted by the Appellant, though under protest. The possession of Unit was thus, handed over to the Appellant on 24.09.2014, thus, the RP did not commit any error in not accepting the claim of the Appellant, for the possession of the Units, which have already been handed over - there are no error in the impugned order passed by the Adjudicating Authority in rejecting IA No.1531 of 2023 filed by the Appellant seeking direction to accept the claim. However, as undertaken by the SRA, the Resolution Plan having been approved on 20.11.2023, the SRA now has undertaken to execute of the Conveyance Deed for both the Units.
The order impugned dated 16.06.2023, rejecting IA No.1531 of 2023 is upheld - SRA namely Singla Builders and Promoters Limited shall execute the Conveyance Deed in favour of the Appellant for Units CB-5 and CB-6.
Appeal disposed off.
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2024 (3) TMI 1108
Recovery of CENVAT Credit erroneously refunded alongwith interest - penalty for ineligible availment of CENVAT Credit - HELD THAT:- It is not in dispute that petitioner has been refunded the said amount after the petitioner was found eligible by the Tribunal for refund and further by this Court towards interest for delayed refund of the CENVAT Credit. Accordingly, there is no ground to demand the same from the petitioner.
Since the Revenue is approaching the Supreme Court impugning the order of the Tribunal as well as the order in appeal passed by this Court holding petitioner entitled to refund of the CENVAT Credit, it would be open to the Revenue to seek interim orders of protection from the Supreme Court. The Revenue cannot after being unsuccessful before this Court, on its own, declare the refund of the CENVAT Credit as well as interest on delayed payment to be erroneous refund. Unless the Revenue is successful before the Supreme Court or the Supreme Court so warrants, there is no question of any refund of the CENVAT Credit or refund of the interest paid to the petitioner.
The impugned Show Cause Notice cannot be sustained. The same is accordingly quashed.
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2024 (3) TMI 1107
CENVAT Credit - input service - nexus with manufacturing of final product or not - Reverse Charge Mechanism (RCM) - Excess availed cenvat credit of service tax - contravention of Rule 7 of CCR. 2004 - Cenvat credit of Education Cess and Secondary & Higher Education Cess - violation of Notification No. 12/2015-CE (NT) dated 29.10.2015 - non-payment of service tax on Ocean Freight - non-payment of service tax on Government Fees under RCM.
Wrong availment of CENVAT Credit of Rs. 6,86,000/- on the services received from M/s Satnam Construction Co. Fabrication Unit, Delhi - HELD THAT:- The appellant has exported PET plant from Neemrana in India to Jamaica, a place outside India with the services to install the same in Jamaica as received from M/s. Satnam Construction Co. Ltd. The later company only has given services to appellant for dismantling the said PET plant clearing, painting and repacking it for being exported. Hence the services received from M/s. Satnam were services exported. The activity done in India by said M/s. Satnam is definitely a service used by the provider of output service for providing output service. Hence, it is well covered in the definition of input services - Cenvat Credit on services received from M/s. Satnam Construction Co. for Rs.6,86,000/- is held admissible to the appellant. Hence the order of the Commissioner (Appeals) is not sustainable qua this issue.
Wrong availment of CENVAT Credit of Rs. 5,15,579/- on 30.06.2017 on challan in respect of RCM liability for the month of June-17 paid in July-2017 in contravention of Rule 4(7) of CCR, 2004 - HELD THAT:- Section 140(5) of the CGST Act, 2017 provides for entitlement to registered person for taking credit of eligible duties and taxes in respect of inputs and input services received on after the appointed date i.e. 30.06.2017 subject to the condition that the invoice or any other duty or tax paying document of the same was recorded in the books of account of such person within a period of thirty days from the appointed day then denying the credit to the appellant when the input services were received prior to 30.06.2017 and tax was paid under RCM before the due date prescribed under the Finance Act, 1994 would be unjustified and cause undue hardship to the appellant when there is no legislative intent to do so - appellant is held entitled for cenvat credit of Rs. 5, 15,579/-.
Excess availment of CENVAT Credit of service tax amounting to Rs. 2,41,451/- in excess on the services which were attributable to appellant as well as other manufacturing unit i.e. Gandhidham, Gujarat in contravention of Rule 7 of Cenvat Credit Rules, 2004 - HELD THAT:- It was mandatory for the appellant to distribute credit as per the directions of said Rule 7. Apparently and admittedly Rule 7 has not been followed while distributing credit. Hence it is held that the phagi unit is rightly held to have been allocated with excess credit.
Wrong availment of CENVAT Credit total amounting to Rs.1,31,219/- of Education Cess & SHE Cess in violation of Notification No. 12/2015-CE(NT) dated 30.04.2015 and 22/2015-CE (NT) dated 29.10.2015 - HELD THAT:- Hon'ble Madras High Court in SUTHERLAND GLOBAL SERVICES PRIVATE LIMITED VERSUS ASSISTANT COMMISSIONER CGST AND CENTRAL EXCISE, COMMISSIONER OF CGST AND CENTRAL EXCISE, GOVERNMENT OF TAMIL NADU, UNION OF INDIA, CENTRAL BOARD OF EXCISE AND CUSTOMS, THE CHAIRMAN, GSTN [2019 (11) TMI 278 - MADRAS HIGH COURT] has clearly held that accumulated credit of Education Cess, Secondary and Higher Education Cess and Krishi Kalyan Cess - Credit continues to be available till such time it is expressly stated to have lapsed No notification/circular/instruction expressly provided that credit accumulated would lapse Authorities cannot now take stand that such credit unavailable for use. It is held that available credit as on date of transition was available to an assessee for set off - Availment of credit on this account is therefore held to be wrongly denied.
Wrong availment of CENVAT Credit of Rs. 82,720/- on M.S. Bar, Channel, H.R. Coil etc. in violation of Rule 2(a) & 2(k) of Cenvat Credit Rules, 2004 used for support of capital goods - HELD THAT:- The items on which cenvat credit had been taken were used in the manufacture of capital goods or repair and maintenance of capital goods. The basic idea is that cenvat credit is admissible so long as the inputs are used in or in relation to the manufacture of final product and whether directly or indirectly. The allegation of the department that the goods on which cenvat credit was availed did not satisfy the definition of the capital goods was considered by the larger bench of the Tribunal in the case of BALLARPUR INDUSTRIES LTD. VERSUS COLLECTOR OF CENTRAL EXCISE, BELGAUM [1999 (12) TMI 88 - CEGAT, NEW DELHI] wherein the theory of "direct participation" of the goods eligible for modvat credit had been specifically rejected in the light of its earlier larger bench decision rendered in the case of JAWAHAR MILLS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, COIMBATORE [1999 (4) TMI 153 - CEGAT, NEW DELHI] - the findings in Order-in-Appeal on this issue are not sustainable.
Non-payment of Service Tax amounting to Rs. 6,64,172/- on Ocean Freight in accordance with the Notification 16/2017- ST dated 13.04.17 - HELD THAT:- Hon'ble Supreme Court has held that the levy of IGST on the amount of Ocean Freight as unconstitutional in the case of UNION OF INDIA & ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [2022 (5) TMI 968 - SUPREME COURT]. The adjudicating authority had not considered said judgement on the ground that the same has been passed in GST regime. These findings are therefore liable to be set aside
Non-payment of Service Tax of Rs. 1,07,393/- on the Government Fees under RCM in accordance with provisions of Notification No. 22/2016-ST - HELD THAT:- Tax liability on the amount in question under this issue arises only when any service is provided or agreed to be provided by the government or local authority. In the case of appellant no service has been provided by the DGFT and Transport department. The payment of fees to these departments is for the purpose of procuring Advance License from DGFT for duty free import of raw material for manufacture of final product which is then exported and for obtaining permit respectively. Demand on this issue is also held to be wrongly confirmed.
Appeal allowed in part.
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2024 (3) TMI 1106
Levy of service tax - Mining Services - execution of contracts for transportation of Coal/Over Burden within the mines and also outside the mines - demand under Business Auxiliary Service reported as Handling Charges - CENVAT Credit disallowed on Tippers (CH.87) used for providing Cargo Handling Service - denial of credit on M.S. Channel and M.S. Angle used for repairing Body/Dallas of the Tippers/Dumper has been disallowed on the ground that the same was not input for the repair of the Tippers/Dumpers - denial of credit availed on the strength of invoices which are in the names of third parties (contractors) - demand of CENVAT Credit against availment of CENVAT Credit prior to payment.
Mining services - HELD THAT:- The activity of transportation is most appropriately classifiable under “Goods Transport Agency Services” and the liability to pay Service Tax on the transportation service lies on the service receiver under the reverse charge mechanism. Accordingly, the transport services provided by the Appellant cannot be classified under the category of “Mining Services”. It is observed that this view has been taken by the Hon'ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR VERSUS SINGH TRANSPORTERS [2017 (7) TMI 494 - SUPREME COURT]. Relying on the said decision, this tribunal has taken the same view in the case of M/S MAA KALIKA TRANSPORT PRIVATE LIMITED VERSUS COMMISSIONER OF CGST & CENTRAL EXCISE, ROURKELA, ROURKELA [2023 (7) TMI 435 - CESTAT KOLKATA] wherein it has been held that transportation of coal within the mines is liable for service tax under the category of “Goods Transport Agency Services” and therefore the liability to pay service tax under the reverse charge mechanism lies on the service receivers - the transportation service rendered by the Appellant within the mines and outside the mines are not chargeable to service tax under the category of 'Mining Services'. Similarly, the activities of Shifting and Feeding of Coal into the Hoppers” has been carried out in the Power Plants and hence the same cannot be categorized as 'Mining Service'. Accordingly, the demand of service tax confirmed in the impugned order on this count is set aside.
Demand of service tax on diesel supplied free of cost by the client under the category of Mining Service - HELD THAT:- Under the composite contract dated 27/08/2010 awarded by Calcutta Industrial Supply Corporation (CISC) for mining, it was agreed upon that the said client would supply the Diesel (HSD) free of cost for running of Tippers, Excavators, HEMM etc. for providing the “Mining Services”. It is observed that during the relevant period, there is no provision in the valuation rules to include the value of free supply material in the assessable value for the purpose of levy of service tax. Accordingly, we hold that the cost of HSD valued Rs.3,97,69,281/- supplied free of cost by the client cannot be included in the assessable value during 2011-12 for the purpose of demanding service tax under the category of “Mining Services”. Accordingly, the demand of service tax in the impugned order on this count is not sustainable - the demand of service tax of Rs.18,76,33,250/- confirmed in the impugned order along with interest and penalty, under the category of 'Mining Services' is not sustainable and accordingly the same is set aside.
Handling charges - HELD THAT:- The discount amount received has been credited in the books of accounts under the head of “Handling Charges. It is observed that the Department has considered these receipts as taxable value received and demanded service tax under the category of "Business Auxiliary Service". A perusal of the journals, invoices and CA Certificates submitted by the Appellant reveals that the Handling Charges of Rs.75,60,332/- received them was towards 'Discounts' only and not for providing any taxable services. Merely because the amount is accounted for under the Account Head "Handling Charges", it would not make it taxable under category of “Business Auxiliary Services”. Accordingly, the service tax confirmed in the impugned order on this count is not sustainable.
CENVAT Credit of Rs.37,13,615/- disallowed on Tippers (CH.87) used for providing Cargo Handling Service - HELD THAT:- The CENVAT Credit in the instant case was claimed in the year 2008, when the Appellant was not rendering 'Cargo handling service'. The Appellant took registration of the vehicle under the Motor Vehicles Act on 12-10-2010. This date has no relevance for availing the credit on the Tippers as 'Capital goods'. As the Tippers were not used for providing Cargo Handling Service for which they are eligible as 'Capital Goods', at the time of receipt of the goods in the year 2008, we hold that the credit availed by the Appellant on this count has been rightly denied in the impugned order. The Appellant has not intimated the availment of capital goods credit on the Tippers. Hence, extended period has been rightly invoked to disallow the credit. For the same reason, the appellant is also liable for penalty. Accordingly, the demand of service tax along with interest upheld. As the irregular credit availed by the Appellant has been established, the Appellant is liable for interest and penalty under Rule 15(2) of the CENVAT Credit Rules 2004.
Denial of CENVAT Credit of Rs.8,64,278/- on the 217 MT of M.S.Channel and M.S.Angle used for repairing Body/Dallas of the Tippers/Dumper - HELD THAT:- During the period from April 2012 to November, 2012, the Appellant purchased 217 MT of M.S. Channel and M.S.Angle and claimed that they have used the same for repairing Body/Dallas of the Tippers/Dumper which were in turn used for providing taxable services under the category of “Cargo Handling Services”. This fact needs to be verified. In the impugned order, the adjudicating authority observed that a 'Dumping Truck' normally weighs 4-6 MT. The claim of consuming 217 MT angle/Channel for repairing work in one year for making 'Body/Dallas' appears nothing but a sham - the adjudicating authority has not given any finding as to whether the Tippers/Dumpers for which the 217 MT of MS Angle and MS Channel were said to have been used qualify as capital goods first. The Appellant has also not submitted any evidence to support their claim that the 217 MT of MS angle and MS Channel has been used in repairing the Tippers. Accordingly, this matter needs to be remanded back to the adjudicating authority to examine the eligibility of this credit, on the basis of the above observations.
Denial of CENVAT Credit of Rs.6,14,095/- availed on the strength of invoices which are in the names of third parties (contractors) - HELD THAT:- The Appellant had already reversed the CENVAT Credit of Rs.4,81,313/- and Rs.1,32,782/- vide Challan dated 27-04-2013 and Challan dated 29-07-2013 aggregating to Rs.6,14,095/- along with interest of Rs.1,36,728/-. However, it is found that the Impugned Order has only considered the payment of Rs.4,81,313/- and appropriated the same. Since the Appellant has already reversed the entire credit of Rs.6,14,095/- the same is appropriated.
Appeal disposed off.
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