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Showing 341 to 360 of 2170 Records

• 2019 (4) TMI 1836
  

  Larger Bench has assembled today as a Division Bench of this Tribunal referred an issue for determination by the Larger Bench. It is after the Larger Bench has assembled, that the order dated 25 March 2019 passed by the High Court of Gujarat in the Writ Petition filed by the appellant to assail the referring order has been brought to our notice. The writ petition is to come up for final hearing on 22 April 2019.

  It is considered appropriate to defer the hearing as the referring order has been assailed in the Writ Petition - Matter adjourned to a date to be notified by the registry.

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• 2019 (4) TMI 1835
  

  Refund of excess Excise Duty paid - principles of unjust enrichment - provisional assessment has not been accepted by the appellant - price variation clause applicable or not - CENVAT credit on Railways.

  HELD THAT:- The appellant accepted the lower rate by letter dated 1st September, 2014. Payment was made in accordance with the lower rates. It is therefore clear that 3,000 pieces were supplied at a lower price. The appellant therefore is clearly entitled to the refund of excess duty. There is no requirement of provisional assessment nor is it a case of unjust enrichment. It is therefore not possible to sustain the order passed by the Commissioner (Appeals). It is accordingly set aside.

  Refund allowed with applicable interest - appeal allowed - decided in favor of appellant.

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• 2019 (4) TMI 1834
  

  Attachment of Bank account of petitioner and his wife - alleged defaults of the Company - case of petitioner is that the petitioner resigned as a Director of M/s. Kaushik Global Logistics Limited in 2016, still the accounts are attached - HELD THAT:- The petitioner is one of the three brothers of the persons involved in the management and affairs of the Company. The petitioner was a director of the Company till his resignation in 2016. Mere resignation as a Director may not suffice in the facts of a given case - The petitioner may still be in control of the management and affairs of the Company through stooges and henchmen.

  The changes against the petitioner and the persons in control and management of the Company are serious. There are serious allegations of fraud which are being investigated into - The contention that the company is a separate legal entity and that, the petitioner has nothing to do with regard thereto cannot be accepted at this stage.

  The corporate veil of a company cannot be utilized for the purpose of perpetuating frauds.

  Let affidavit in opposition be filed within four weeks from date, reply thereto, if any, be filed two weeks thereafter - The writ petition will be treated as ready for hearing immediately on completion of the time stipulated for filing affidavits.

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• 2019 (4) TMI 1833
  

  Levy of penalty u/s 271AAB - no prior approval is taken from the concerned JCIT - assessee at the time of search proceedings u/s 132 had admitted undisclosed income under section 132(4) - HELD THAT:- From the above provisions contained in section 274 of the Act, it is crystal clear that the penalty under section 271AAB of the Act, which falls in Chapter XXI of the Act shall not be imposed by the Assessing Officer until and unless prior approval is taken from the concerned Joint Commissioner of Income Tax (JCIT). The use of word “shall” make it mandatory to take the prior approval of the JCIT / Additional CIT before passing the order imposing the penalty under section 271AAB of the Act.

  In the present case it is crystal clear from the penalty order passed by the Assessing Officer that the order was passed on 29/09/2016 while the approval from the Additional CIT, Range Ludhiana was accorded vide letter no. 1036 dt. 30/09/2016, which clearly established that the penalty order was passed by the Assessing Officer on 29/09/2016 before taking the approval from the concerned Additional CIT / J.C.I.T. Therefore the penalty order passed by the Assessing Officer for levying the penalty under section 271AAB of the Act was void abinitio. In that view of the matter the impugned penalty levied u/s 271AAB of the Act by the Assessing Officer and sustained by the Ld. CIT(A) is deleted. - Decided in favour of assessee.

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• 2019 (4) TMI 1832
  

  Classification of imported goods - Capsule of Dry Mix Powder of Soy/Tofu & Flaxseed - classified under CTH 12119011/12089000/12119099 of the Tariff Act, 1975 or under CTH 21069099? - appellant submitted that just because Soya is dried, cleaned, powdered and processed, the classification of the subject goods cannot be migrated from Chapter 12 to Chapter 21 of the Tariff Act - Confiscation - redemption fine - penalty.

  HELD THAT:- The subject goods should appropriately be classifiable under CTH 21069099, as against the claim of the appellant under CTH 12119099 - it is also found from the available records that the appellant had accepted before the lower authorities that the imported goods are not classifiable under CTH 12119011 or CTH 12089000 - It is also noticed from the original order dated 24.02.2011 that the subject goods though were held to be liable to confiscation under Section 111(m) of the Customs Act, 1962, but no redemption fine was imposed on the ground that the said goods have already been cleared and not available for confiscation.

  Penalty u/s 114 of CA - HELD THAT:- The said statutory provisions are attracted in the eventuality, where the duty has not been levied or has been short levied by reason of collusion or any wilful misstatement or suppression of facts. On perusal of the case records, including the adjudication and the impugned orders, we find that the authorities below have not adduced any plausible evidence to show that the ingredients mentioned in Section 114A ibid are present in the circumstances of the case - the provisions of Section 114A cannot be invoked for imposition of penalty on the appellant.

  Penalty set aside - Confiscation upheld - redemption fine cannot be imposed - appeal allowed in part.

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• 2019 (4) TMI 1831
  

  Determination of profit of unaccounted sales - gross profit v/s net profit - HELD THAT:- As relying on Shri Hariram Bhambhani [2015 (2) TMI 907 - BOMBAY HIGH COURT] and BALCHAND AJIT KUMAR [2003 (4) TMI 76 - MADHYA PRADESH HIGH COURT] we direct the Assessing Officer to assess the income from undisclosed sales in question by applying the net profit rate in place of the “gross profit rate” on undisclosed sales. The net profit rate shall be that which the assessee had disclosed in its regular books of account for the said Assessment Year on recorded sales. In the result, this ground of the assessee is allowed in part.

  Disallowance u/s 40A(3) and 40(a)(ia) can be made when profits have been estimated as a percentage of turnover - HELD THAT:- We delete the disallowance made u/s 40A(3) and 40(a)(ia) of the Act as in this case, the income has been estimated by the Assessing Officer. Hence, we allow this ground of the assessee.

  Taxation of excess stock found by the revenue during the course of survey - HELD THAT:- Survey done u/s 131 of the Act, for the Assessment Year 2009-10, the survey team found difference between the physical stock and the book stock. The physical stock was more than the stock recorded in the books. The difference was assessed as income. The ld. Counsel for the assessee relied on the judgment in the case of Principal Commissioner Of Income vs M/S. Subarna Rice Mill [2018 (8) TMI 1475 - CALCUTTA HIGH COURT] and argued that in such a situation, only the gross profit on such stock can be taxed. This judgment was followed by the ITAT Kolkata Bench in the case of DCIT vs. Smt. Madhu Chhanda Sirkar [2018 (9) TMI 1775 - ITAT KOLKATA] - We direct the Assessing Officer to tax only the gross profit embedded in the excess stock found for the Assessment Year. The balance addition is hereby deleted. In the result this ground of the assessee is allowed in part.

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• 2019 (4) TMI 1830
  

  TP Adjustment - international transaction of export of the FDFs Ucerax and Zyrtec to its AE - TPO rejecting TNMM as the most appropriate method and choosing the most appropriate method as CUP - HELD THAT:- Transfer pricing officer's observation that assessee is trying to camouflage the OP/OC of small export associated enterprises (₹ 5 cr) with the OP/OC of the total export of ₹ 33 crore is cogent. Further in the annual accounts there are no segmental accounts. The annual audited accounts does contain the breakup of export to associated enterprise and non-associate enterprise. Further more in the audited annual accounts the segmental results for export and local sales is also not available. Further the transfer pricing officer found that assessee has benchmarked the transaction of import of API and export of finished drugs with the same set of comparable. The transfer pricing officer has rightly observed that activity of import of API cannot be compared with that of export of finished products. In these circumstances the transfer pricing officer has rejected the TNMM method of benchmarking adopted by the assessee.

  In our considered opinion the reasons given by the transfer pricing officer for rejecting the TNMM method adopted by the assessee is quite cogent. The above clearly show that if on the same facts in earlier period TNMM method was adopted it was an error. It is settled law that there is no use of perpetuating an error. The case here is not that the transfer pricing officer is changing the method to that of CUP by claiming that this method is a superior method to TNMM. Hence the objection of the learned counsel of the assessee by placing reliance upon case laws in this regard is liable to be rejected and the same is rejected as such.

  Appropriate discount for the additional marketing expense incurred by the assessee in its local sales - Asdirected that the ALP computed by T.P.O. would be reduced by per unit salary cost of employees engaged in marketing field - Assessee has made a proposition before us that assessee has only used its surplus/spare capacity to make exports to the associated enterprise and it has actually made a profit out of the same. We find that this line of argument was never before the authorities below. We do not find any cogency in the same for taking this international transaction out of the ambit of ALP determination. As a matter of fact it is in fact an admission on the part of the assessee that prices charged from the associated enterprise are comparatively lower, which in turn further fortifies the action of the transfer pricing officer. We note that it is the contention of the learned counsel of the assessee that the assessing officer has not given effect to the direction of the DRP regarding adjustment in ALP computed by T.P.O. we direct the assessing officer to follow the direction of the dispute admissions panel. It will not be out of place here to reiterate that T.P.O. from examination of assessee‟s personnel has found that finished products exported to AE are superior quality they comply with strict U.S FDA regulation. Our order as above shall apply mutatis mutandis for assessment year 2011-12 & AY 2012-13.

  Connectivity charges being treated as capital expenditure and the deprecation there on - In absence of any convincing arguments by the counsel of the assessee against the above treatment we dismiss the ground raised by the assessee in this regard. It is needless to add that assessing officer is bound to give effect to the direction of the dispute resolution panel in this regard

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• 2019 (4) TMI 1829
  
  The Madras High Court dismissed a batch of Writ Petitions challenging Notification No.4/2015-2010 dated 25.04.2018 as the benefit of interim stay no longer exists. No costs were awarded.

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• 2019 (4) TMI 1828
  

  CENVAT Credit - SSI Exemption - value based exemption - whether Rule 6(3) of Cenvat Credit Rules, 2004 is attracted on clearance of goods, under value based exemption / SSI exemption under N/N. 8/2003-CE?

  HELD THAT:- The learned Commissioner has resorted to stretching the law, which is not permissible. As exempted goods are defined in the Cenvat Credit Rules, which does not include any exemption under Section 5A of the Central Excise Act but only includes goods exempt specifically under N/N. 1/2011-CE and 12/2012-CE.

  The learned Commissioner (Appeals) have erred in interpreting the provisions of Cenvat Credit Rules and accordingly reached an irrational conclusion - the order in original is restored - appeal allowed - decided in favor of appellant.

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• 2019 (4) TMI 1827
  

  Adjustment of excess deposit of service tax - Business Auxiliary Service - amount received as discount by the appellant as a tour operator from the Air travel agent - Rule 6(4A) read with Rule 6(4B) of Service Tax Rules, 1994 - HELD THAT:- The adjustment of excess deposit of service tax is permissible in the succeeding month or quarter as the case may be. However, clause 4B(i) is concerned, the adjustment of excess amount paid, under sub-rule (4A), shall be subject to the condition that the excess amount paid is on account of reasons not involving interpretation of law, taxability, valuation or applicability of any exemption notification.

  There is no dispute regarding the taxability nor of interpretation of law as the appellant had first deposited the tax under ‘Business Auxiliary Service’ on the commission and discount and thereafter paid tax under the head ‘tour operator’ - restriction under Rule 6(4B) is not applicable and accordingly the adjustment made by the appellant is held to be allowable - Demand set aside - appeal allowed - decided in favor of appellant.

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• 2019 (4) TMI 1826
  

  Reopening of assessment u/s 147 - exercise of power to record reasons u/s 151 (1) read with Sections 147 & 148 (2) of the Act for issuance of re-assessment of notice u/s 148 (1) - survey under Section 133A - HELD THAT:- We are fortified by the decision of this Court in Indo Asahi Glass Co. Ltd. v. ITO [2001 (9) TMI 5 - SUPREME COURT] wherein the assessee had approached this Court against the judgment and order of the High Court which had dismissed the Writ Petition filed by the assessee wherein challenge was made to the show cause notice issued by the Assessing Authority on the ground that alternative remedy was available to the assessee.

  In the present case, the assessee has invoked the writ jurisdiction of the High Court at the first instance without first exhausting the alternate remedies provided under the Act. In our considered opinion, at the said stage of proceedings, the High Court ought not have entertained the Writ Petition and instead should have directed the assessee to file reply to the said notices and upon receipt of a decision from the Assessing Authority, if for any reason it is aggrieved by the said decision, to question the same before the forum provided under the Act.

  In view of the above discussion, the Principal, CIT, having recorded reasons that certain information found during survey under Section 133A of the Act was not available during the scrutiny assessment, the sanction appears to be in accordance with law. Moreover, the assessment proceeding having already been complete, the petitioners have remedy of preferring an appeal, therefore, both the writ petitions deserve to be and are hereby dismissed.

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• 2019 (4) TMI 1825
  

  Maintainability of petition - alternate remedy of appeal - Repayment of debt - Section 13(2) read with Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- This Court has taken a view that Section 18 of the Recovery of Debts and Bankruptcy Act of 1993 protects the jurisdiction of this Court exercising its power under Articles 226 and 227 of the Constitution of India and therefore, wherever jurisdiction of the Debts Recovery Tribunal conferred upon it by Section 17 of the Act of 1993 is challenged, a remedy in the nature of writ petition under Articles 226 and 227 of the Constitution of India would always be maintainable. Thus, we need not say anything more on this issue which is already set at rest.

  The facts would clearly show that the petitioner has no liability whatsoever to satisfy the debt incurred by M/s. Ideal Energy Projects Limited for whom his deceased father stood as guarantor and as such, the petitioner could not have been joined as a party-respondent to the ongoing proceedings before the Debts Recovery Tribunal, New Delhi. These proceedings are without jurisdiction, insofar as the present petitioner is concerned and the same are liable to be quashed and set aside.

  Petition allowed.

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• 2019 (4) TMI 1824
  

  Input tax credit - Apportionment of credit and blocked credits - hiring of buses for transportation of employees - hiring of cars for transportation of employees - restriction on “Rent a Cab” service specified in Section 17 (5) (b)(iii) as applicable to input tax credit - time limitation - challenge to AAR decision.

  What is rent-a-cab? - HELD THAT:- The contentions of the applicant that hiring of buses which can carry large number of passengers would not qualify under “rent-a-cab” is found to be untenable and the activity of the contractor in the instant case, providing buses or cars on hire to the applicant, is specifically covered under the meaning of “rent-a-cab” which makes the impugned supply as ineligible for ITC in terms of Section 17(5) of the CGST/HGST Act, 2017 - further, the appellant had not challenged that the cars and buses hired by them do not fall under the definition of cab.

  Whether renting of vehicle is different from hiring? - HELD THAT:- It is seen that the taxing statute, do not make any distinction between renting or hiring. Further, irrespective of possession and control of the vehicle, the service so rendered falls within the taxable service. Thus the contention of appellant that hiring of vehicle is different from renting is untenable.

  Whether input tax credit on GST charged by the contractors for hiring of buses and cars for transportation of employees is admissible when there is a restriction on admissibility of input tax credit on Rent-a-Cab service as provided in section 17(5)(b)(iii) of CGST Act, 2017 and HSGST Act, 2017? - HELD THAT:- Section 17 of the Central Goods and Services Tax Act, 2017 and HSGST, Act, 2017 provides certain restrictions and according to which input tax credit on certain goods or services or both are not admissible - the appellant are fulfilling the conditions as prescribed under Section 16 of CGST Act, 2017 and HSGST Act, 2017. We further find that after amendment, benefit of Input Tax Credit has been extended to the motor vehicles having approved seating capacity of more than thirteen persons when they are used for making taxable supplies of transportation of passengers. Therefore, the appellant is eligible to input tax credit of the GST charged by the Contractor for hiring of buses only having approved seating capacity of more than thirteen persons for transportation of employees after amendment of th Act, ibid with effect from 30.08.2018.

  The Advance Ruling given by AAR is modified.

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• 2019 (4) TMI 1823
  
  The Supreme Court of India in 2019 (4) TMI 1823 - SC Order, with judges Ashok Bhushan and K.M. Joseph, granted leave and condoned delay in the case. The case was tagged with Diary No. 41708/2017.

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• 2019 (4) TMI 1822
  

  Maintainability of ruling by Advance Ruling authority - EPC contract for complete design, engineering, manufacture, procurement, testing, Inspection, and complete erection and commissioning of solar power generating system - Composite supply or not - supply of PV Modules/lnverters or any other supply covered under Chapter Heading 84,85 or 94 of Central Tax Notification - principal supply or not - supply of PV Modules/lnverters or any other supply - whether covered under Chapter Heading 84,85 or 94 of Central Tax Notification - concessional rate of tax or not - challenge to AAR decision.

  HELD THAT:- The advance ruling dated 22.08.2018 obtained by the appellant is prior to the amendments made with effect from 1.01.2019 by the Govt. vide notifications ibid dated 31.12.2018 under the CGST /HGST Act, 2017 in the respective entries. There is a change in the rate of tax and the percentage of Goods and Services involved in Solar Power Generation System (SPGS), after Notification No. 24/2018- Central Tax (Rate), dated 31.12.2018 and Notification No. 27/2018-Central Tax (Rate) dated 31.12.2018. Therefore, after issuance of above notifications, the facts and circumstances have completely changed with effect from 01.01.2019.

  The advance ruling granted vide Advance Ruling Order dated 22.08.2018, is no more binding on the applicant or the authorities concerned in terms of Section 103(2) of the CGST and SGST Acts and the applicant may seek Advance Ruling which will be granted afresh by the Advance Ruling authority after considering the notifications mentioned after giving opportunity of hearing to the appellant - Thus, the order dated 22.08.2018 of the Advance Ruling Authority is quashed and the applicant may approach the Advance Ruling Authority for taking a decision afresh in accordance with law.

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• 2019 (4) TMI 1821
  

  Appearance before the Senior Intelligence Officer - issuance of summons - Section 69 read with Section 70 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Considering the fact that the case of the present writ petitioner is squarely covered in PRAMOD AGARWAL, PRADEEP AGARWAL, SUMAN AGARWAL VERSUS UNION OF INDIA, GST COUNCIL, DIRECTORATE GENERAL OF GOODS & SERVICES TAX INTELLIGENCE [2019 (2) TMI 1738 - CHATTISGARH HIGH COURT] accordingly the petitioner shall appear before the Senior Intelligence Officer as and when called upon by him. The Senior Intelligence Officer shall not arrest the petitioner on his first day of appearance, and give him fair opportunity of hearing in the matter.

  Petition disposed off.

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• 2019 (4) TMI 1820
  

  TP Adjustment - Interest on receivables - HELD THAT:- As established that the transactions with the AEs are at arms length price. All the AEs are 100% subsidiary companies and the assessee is debt free company having large amount of reserves. The department has not made out a case of undue advantage of allowing credit. CIT(A) has given finding that the receivables were received in reasonable period and there was no delay. The department did not place any evidence to controvert the finding given by the CIT(A). Therefore, we hold that there is no case for making adjustment of interest on receivables in the assessee’s case. DR did not place any other decision of the Apex Court to controvert the case laws relied upon by the assessee. Accordingly, we uphold the order of the CIT(A) and appeal of the revenue on this ground is dismissed.

  Corporate guarantee to subsidiaries - HELD THAT:- In the instant case, the facts are identical. The assessee had given corporate guarantee to its 100% subsidiary and the AE for the purpose of business. The assessee had not incurred any expenditure towards the corporate guarantee. The revenue could not bring any evidence to establish that the assessee had incurred any expenditure for extending the corporate guarantee. As stated by the Ld.AR it is the obligation on the part of the assessee to extend the support and assistance to its subsidiaries for business development. Since the facts are identical, respectfully following the view taken by coordinate benches in the case laws cited, we hold that the corporate guarantee given by the assessee on behalf of its AE would not constitute an international transaction within the meaning of 92B of the Act. Accordingly, we uphold the order of the Ld.CIT(A) and dismiss the appeal of the revenue

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• 2019 (4) TMI 1819
  

  Dishonor of Cheque - Legality and validity of the proceedings under Section 138 of the Negotiable Instruments Act - HELD THAT:- While dealing with an application under Section 482 of the Code of Criminal Procedure the High Court should not assume the jurisdiction of the trial Court and hold a parallel trial. High Court in exercise of its power under Section 482 of the Code of Criminal Procedure is not expected to discharge the function of trial judge.

  The Court while considering the prayer of quashing should not delving deep into the merit of the case or adjudicate upon a defence of the accused. Moreover, the petitioner is at liberty to place his plea by way of defence during trial - it is not a fit case to exercise discretion under Section 482 of the Code of Criminal Procedure and to quash the proceedings pending against the petitioner.

  The application under Section 482 of the Code of Criminal Procedure is dismissed.

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• 2019 (4) TMI 1818
  

  Income accrued in India - PE in India - income earned by the Assessee from the Indian Customers with respect to the subscription fees as ‘royalty’ in terms of section 9(1)(vi) of the Act as well as Article 12(3) of the India-USA DTAA - stand of the assessee was that such incomes constitute ‘business profits’, which are not taxable in the absence of any Permanent Establishment (PE) in India since the entire products/services were being provided entirely from outside India - HELD THAT:- Transfer of any right in a copyrighted article is analogous to the rights acquired by the purchaser of a book. In the case of a book, the publisher of the book grants the purchaser certain rights with respect to the use of the content of the book, which is copyrighted, but the purchaser of the book does not acquire the right to exploit the underlying copyright. When the purchaser reads the book, he only enjoys its contents. Similarly, the user of the copyrighted software does not receive the right to exploit the copyright in the software; he only enjoys the product/benefits of the product in the normal course of his business. Similarly, in the instant case, customers of the assessee only enjoy the benefits of using SciFinder and STN and do not acquire the right to exploit any copyright in these software. The difference between a copyright and a copyrighted article in context of software has been brought out very clearly by the Hon'ble Supreme Court of India in the case of Tata Consultancy Services vs. State of Andhra Pradesh [2004 (11) TMI 11 - SUPREME COURT]

  The income earned by the assessee from the Indian Customers with respect to the subscription fees for CAS cannot be taxed as royalty as per section 9(1)(vi) of the Act as well as Article 12(3) of the India-USA DTAA. Thus, assessee succeeds on this issue.

  Whether income earned by the assessee from the Indian Customers with respect to the subscription fees for PUBS division be taxed as royalty in terms of section 9(1)(vi) of the Act as well as Article 12(3) of the India-USA DTAA? - As purchaser of the assessee's journals, articles or database access does not have the right to make copies for re-sale and does not have the right to make derivative works. In short, the purchaser has not acquired the copyright of the article or of the database. What the buyer gets is a copyrighted product, and accordingly the consideration paid is not royalty, but for purchase of a product. In the instant case too, what is acquired by the customer is a copyrighted article, copyrights of which continue to lie with assessee for all purposes. lt is a well settled law that copyrighted article is different from a copyright, and that consideration for the former, i.e. a copyrighted article does not qualify as royalties.

  Thus, the principles noted by us in the earlier part of this order in the context of the income earned by way of CAS fee are squarely applicable to the subscription revenue received from customers of PUBS division for sale of journal also, and accordingly PUBS fee also does not qualify as ‘Royalty’ in terms of section 9(1)(vi) of the Act as well as Article 12(3) of the India-USA DTAA.

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• 2019 (4) TMI 1817
  

  Review petition - MODVAT/CENVAT credit - bought out items (components, assemblies) - export of the items under bond as inputs / capital goods cleared ‘as such’ - HELD THAT:- There are no ground, whatsoever, to entertain the same - The Review Petitions are, accordingly, dismissed.

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