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Showing 341 to 360 of 1589 Records
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2022 (7) TMI 1250
Dissolution of the Corporate Person - Section 59(7) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- On perusal of the documents annexed to the Petition, it appears that the affairs of the Corporate Person have been completely wound up and its assets have been completely liquidated. It is also satisfied from the documents on record that the voluntary liquidation is not with intent to defraud any person and that the bank account for the purpose of Liquidation has been closed.
In view of the facts and circumstances and the submissions made by the Applicant, the Corporate Person deserves to be dissolved - application allowed.
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2022 (7) TMI 1249
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The applicant clearly comes within the definition of Financial Creditor. The material placed on record as stated in the paras above further confirms that respondent has debt due and has committed default in repayment of the outstanding financial debt. On a perusal of Form-I filed under Section 7 of the Code read with Rule 4 of the Rules shows that the form is complete and there is no infirmity in the same. It is also seen that there is no disciplinary proceeding pending against the proposed Interim Resolution Professional - the present application is complete in all respect. The applicant financial creditor is entitled to move the application against the corporate debtor in view of admitted outstanding financial debt and default of the same by the corporate debtor. The default in repayment of the financial debt is not refuted by the Corporate Debtor.
In terms of Section 7(5)(a) of the Code, the present application is hereby, admitted - Moratorium declared.
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2022 (7) TMI 1248
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Operational Creditor itself produced on record along with the rejoinder, the correspondence that has taken place between the Operational Creditor and the Corporate Debtor, prior to the issuance of the Demand Notice. More particularly, the letter from Operational Creditor to Corporate Debtor dated 14.04.2017 whereby the Operational Creditor called upon the Corporate Debtor to pay a sum of Rs. 70,76,730/-. The Corporate Debtor replied to the aforesaid letter vide email dated 15.04.2017 pointing out to the Operational Creditor that as per their account statement Rs. 37,33,552.10 is only due and payable. The Operational Creditor sent one more letter dated 27.12.2017 giving some calculations calling upon the Corporate Debtor to pay Rs. 55,23,253/-.
It appears from the evidence on record that there is a dispute even prior to the Demand Notice about the exact amount due and payable by the Corporate Debtor to the Operational Creditor. This Adjudicating Authority is sitting in a limited jurisdiction cannot dwell upon the issue as to whose account is accurate and correct. There appears a serious dispute about the actual amount payable by the Corporate Debtor to the Operational Creditor. In fact, the Corporate Debtor contends that nothing is due and payable now. The Corporate Debtor informed this fact in its reply to the notice.
There appears dispute about whether any amount is payable by the Corporate Debtor to the Operational Creditor - Petition dismissed.
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2022 (7) TMI 1247
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice - HELD THAT:- The Operational Creditor produced on record copy of demand notice dated nil. He produced postal receipt to show that notice was sent (Annexure-5). However, there is no evidence to show that this demand notice was really delivered to the Corporate Debtor. Only producing postal receipt is not enough to hold that it has been delivered/received by the Corporate Debtor at its correct (registered address). Section-8(i) and 9(i) of the Insolvency and Bankruptcy Code make it clear that there has to be delivery of notice by the Operational Creditor to the Corporate Debtor. Unless Operational Creditor shows proof with the required evidence that in spite of delivery of demand notice under Section 8 of IBC, the Corporate Debtor failed to make payment of operational debt, the Operational Creditor cannot initiate CIRP of the Corporate Debtor. In this case, evidence of delivery of notice is lacking.
Application dismissed.
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2022 (7) TMI 1246
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - whether there is a pre-existing dispute or not? - HELD THAT:- It is not in dispute that the logistic services were provided to the Corporate Debtor and the Operational Creditor raised invoices of Rs. 8,72,582/-. But, the main dispute in the present matter is "whether there is a pre-existing dispute or not?" As per clauses 13 & 17 of the Principal Agreement, the Operational Creditor has indemnified the Corporate Debtor for the payment of loss or damage of the consignments during the transit. However, both parties have amended the terms of the Principal Agreement by signing an Addendum dated 09.10.2017 wherein clause 3 states that in no case Operational Creditor shall be responsible for any financial liability if the Insurance Company (Insurance Company -NSI Infinium Global Pvt. Ltd.) rejects the CoF and refuse to pay any amount against the damage.
It is noted that as per the list of issued CoF produced on record by the Corporate Debtor, the Operational Creditor had issued more than 100 CoFs from 25.08.2017 to 29.06.2019, 9 CoFs were issued by the Operational Creditor for the loss of shipments, and rests are issued for the damaged shipment during the transit. Copies of 21 CoFs issued by the Operational Creditor from 17.07.2018 to 13.12.2018 are also placed on record by the Corporate Debtor, out of 21 CoFs, 3 were issued for the loss of shipments during the transit. The Corporate Debtor sent a number of emails from 01.11.2017 to 24.08.2019 to the Operational Creditor for damaged/loss of goods during the transit by the Operational Creditor which was prior to the issuance of the demand notice dated 07.11.2019.
The Hon'ble Supreme Court of India in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] has held that so long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the Adjudicating Authority has to reject the application.
If it is considered that the Operational Creditor is not liable for damage of goods in view of the provisions of addendum dated 09.10.2017, but it is liable for loss of goods which have duly intimated by Corporate Debtor to the Operational Creditor prior to the issuance of Demand Notice. Moreover, whether the terms and conditions of the Logistics Agreement executed between the parties supersede the provisions of the Carriage by Road Act, 2007 or not? can not be adjudicated in an application filed under section 9 of the IB Code.
There is a preexisting dispute for the supplying of services by the operational creditor - Application dismissed.
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2022 (7) TMI 1245
CIRP - Corporate debtor under liquidation - Action of ED attaching the property of CD - Seeking withdrawal of provisional attachment order with immediate effect for the sake of continuing the liquidation process which shall benefit the creditors as well as other stakeholders of the Corporate Debtor - seeking remission of the amount which was withdrawn/transferred from the account of the Corporate Debtor to the Enforcement Directorate on 2nd August 2018 into the Liquidation Account of the Corporate Debtor - HELD THAT:- The summons/orders issued by the Enforcement Directorate/Adjudicating Authority/Appellate Authority under that law are related to some investigation about the affairs of the Corporate Debtor and its officers prior to the CIRP. It has no relation of whatsoever nature about the insolvency of the Corporate Debtor or its liquidation process. The prayers as made therein are not maintainable before this Adjudicating Authority invoking provisions under section 60(5)(c) of the IBC, 2016. Hence, applications to that extent need to be rejected.
Seeking issue of appropriate directions to Respondents No. 2 to 5 herein to pay/clear admitted outstanding - HELD THAT:- This prayer does not fall within the ambit of sections 43 and 66 of the IBC, 2016. The amount claimed herein by the Liquidator was to be recovered by the Corporate Debtor from its debtor even prior to the CIRP. Section 35(1)(k) of the IBC, 2016 states that "subject to the directions of the Adjudicating Authority, the liquidator shall have the following powers and duties, namely:- to institute or defend any suit, prosecution or other legal proceedings, civil or criminal, in the name of on behalf of the corporate debtor.
Invoking that provision, the Liquidator may file recovery suits against Respondents No. 2 to 5. We permit him to do so. Both applications, being not maintainable, stands rejected and disposed of.
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2022 (7) TMI 1244
Condonation of delay in filing the Claim Petition before the IRP/Respondent - seeking direction to IRP/Respondent to admit Annexure-E Form C Claim dated 12.05.2022 of the Applicant - HELD THAT:- From the records produce, it could be seen that the Respondent received the soft copy of the claim on 12.05.2022 which is on the day of the commencement of Insolvency Resolution Process against the Corporate Debtor M/s. MIR Realtors Private Limited.
In view of the decisions of NCLT New Delhi in IN RE : TWENTY FIRST CENTURY WIRE RODS LTD. [2019 (5) TMI 1953 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI], referred to by the Applicant, the delay in submitting the claim may be condoned, in case the CIRP initiated against the Corporate Debtor is not concluded. In this case, the CIRP is not concluded.
This Application is allowed, condoning the delay in filing the Form C by the applicant before the RP and directing the RP to accept the Form C filed by the applicant on 12.05.2022 and take appropriate decision in the matter.
Application disposed off.
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2022 (7) TMI 1243
Condonation of delay of 302 days in filing appeal - sufficient reasons for delay or not - section 35 of the Central Excise Act, 1944 - HELD THAT:- Section 35 of the Central Excise Act (which also applies to Service tax matters by virtue of Section 83 of the Finance Act, 1994) provides the right of appeal. It is undisputed that it places a limitation on the extent to which the delay can be condoned by the Commissioner (Appeals). He cannot condone delay of more than one month. There is no provision in this Section for either Tribunal or any other authority to condone the delay in filing appeal before Commissioner (Appeals) in excess of one month.
The limitation laid down in the law is sacrosanct and courts and more so Commissioner (Appeals) and Tribunal who are creatures of statute cannot go beyond it.
Appeal dismissed.
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2022 (7) TMI 1242
Maintainability of appeal - Orders of Appellate Tribunal - HELD THAT:- It is seen that the matter has been adjourned more than three times. In the interest of justice, the appellants were allowed to appear and present this case before this Tribunal. From the above, it shows that the appellants are not interested in pursuing their appeal before this Forum.
Taking note of the Rule 20 of CESTAT Procedure Rule, 1982, this appeal is dismissed for non-prosecution.
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2022 (7) TMI 1241
Seeking rectification of the order - application was filed on the ground that while passing the order dated 30th October 2012, the CESTAT did not notice the fact that the application filed by the present appellant was pending before the Committee of Disputes - extended period of limitation - HELD THAT:- The second application was filed before the CoD on 11th February 2011. In the meantime, the judgment of this Court in the case of ELECTRONICS CORPORATION OF INDIA LTD. VERSUS UNION OF INDIA & ORS. [2011 (2) TMI 3 - SUPREME COURT] was delivered on 17th February 2011, which has done away with the mechanism seeking permission of CoD. As such, the second application of the appellant could not be considered by the CoD. The question of interest, therefore, has not been addressed by any of the authorities.
The matter is remitted to the CESTAT for consideration of the limited aspect of interest on duty - Appeal allowed.
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2022 (7) TMI 1240
Demand of Central Excise duty under Section 11D of CEA - Reversal of Cenvat Credit - Cenvat credit of rent-a-cab services used by the employees and customers of the appellant for business purposes - input services or not - freight charges paid for transport of goods from the appellant’s premises to the customer’s premises when goods were sold on FOR basis to the customers by the appellant.
Demand of Central Excise duty under Section 11D of CEA - It is the case of the Department that the appellant has recovered this amount from its customers as representing excise duty and, therefore, the same needs to be deposited in the exchequer - HELD THAT:- The agreement and the invoices that the buyer was fully aware that the goods were fully exempted and no excise duty was liable to be paid. In fact, the buyer was required to provide an excise duty exemption certificate to the appellant to avail the benefit of exemption notification. However, the buyer also agreed to pay to the appellant an amount equal to 7% which it paid under Rule 6(3)(1). However, both the agreements and the invoices inaccurately mentioned this as “excise duty reversal” - The invoices also indicate that the excise duty is exempted under Notification NO. 3/2004. Further, below the “excise duty reversal @ 6%” in the invoice, it is mentioned in “amount paid under Rule 6(3)(i) of CCR”. Needless to say, since this is not an amount of excise paid by the appellant and the buyer M/s Navayuga Engineering Company Limited will not be entitled to Cenvat credit of the amount so paid. However, that matter is beyond the scope of this appeal. What is important for this appeal is whether the appellant has collected the amount as representing Excise duty from its customers which does not appear to be the case from the agreement and from the invoices - this part of the demand cannot be sustained and needs to be set aside.
Cenvat credit of rent-a-cab services used by the employees and customers of the appellant for business purposes - input services or not - HELD THAT:- The High Court in the case of COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, VADODARA VERSUS TRANSPEK INDUSTRY LTD. [2017 (10) TMI 86 - GUJARAT HIGH COURT] has decided that rent-a-cab services in respect of cab used by the employees of the assessee is an “input service” and Cenvat credit is available on it.
Demand of Rs. 3,95,550/- towards central excise duty on freight charges of goods sold on FOR basis to the customers premises - HELD THAT:- The issue is now settled by the Supreme Court in the case of COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR VERSUS M/S ISPAT INDUSTRIES LTD. [2015 (10) TMI 613 - SUPREME COURT] that the place of removal in every case has to be only the place relatable to the seller and it cannot be the buyer’s premises even though the sale may be completed at the buyer’s premises when goods are sold on FOR destination basis. The “place of removal” continues to be the seller’s premises whether it be the factory gate or depot or any other place relatable to the seller. In terms of Section 4 of the Central Excise Act, value of the goods is the transaction value of the goods for delivery at the time and place of removal. The freight incurred from the place of removal to the buyer’s premises cannot, therefore be includible in the assessable value.
Penalty - HELD THAT:- All the three demands are not sustainable on merits, the penalty also needs to be set aside.
Appeal allowed - decided in favor of appellant.
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2022 (7) TMI 1239
Valuation - Job work - addition of the value of waste and scrap cleared by the appellant in the assessable value - non-accounting of the waste and scrap that was arising during the process of conversion and retained by them - HELD THAT:- Undisputedly in the present case, the goods and wire rods have been cleared for payment of duty on the value fixed by the TISCO for whom appellants have performed the job work. Since the value adopted was the clearance of the goods as fixed by TISCO for the customer of Tisco it would have taken into account all the wastes including the value of waste and scrap retained by the appellants. All the components going into the value would have thus formed part of the assessable value for such clearances. It is not the case that job work charges have been suppressed to the extent of the value of waste and scrap in the present case as goods have been cleared on actual value fixed by TISCO.
There is no merit in the appeal - Appeal of Revenue dismissed.
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2022 (7) TMI 1238
Appointment of arbitrator - Direction to send a fresh panel of four retired officers in terms of clause 64(3)(b) of the General Conditions of Contract (GCC) - constitution of Arbitral Tribunal in terms of clause 64(3)(b) of the GCC - HELD THAT:- The appellant and the respondent being signatories to the agreement are bound by the aforesaid arbitration clause/arbitration agreement. As the dispute arose between the parties, the appellant invoked the arbitration clause in terms of the agreement. However, the respondent – General Manager/Railway failed to appoint the arbitrator in terms of clause 32 - Once the dispute has arisen between the parties and despite invocation of the arbitration clause in terms of the agreement no arbitrator is appointed, it can be said that the authority has forfeited its right to appoint the arbitrator in terms of the arbitration agreement and thereafter the arbitrator has to be appointed under Section 11(6) of the Act.
In the present case also, the respondent failed to appoint an arbitrator as per the agreed procedure and in terms of the agreement. Therefore, the respondent forfeited its right to appoint an arbitrator in terms of the agreement and therefore the appellant was justified in filing the application before the High Court for appointment of a sole arbitrator in exercise of powers under Section 11(6) of the Act. The Chief Justice or his nominee thus was required to appoint the arbitrator under Section 11(6) of the Act.
While allowing the application under Section 11(6) of the Act instead of appointing the arbitrator in exercise of powers under Section 11(6) of the Act, the High Court has directed to constitute an Arbitral Tribunal in terms of clause 64(3)(b) of the GCC. It is not in dispute that neither the GCC was signed by the parties nor the GCC was made part of the agreement between the parties. There is no reference to the GCC in the main agreement entered into between the parties. Even as per communication dated 16.07.2020, the GCC, July 2020 shall be applicable to works contract of Indian Railways with prospective effect. Therefore, the parties are not governed by the GCC at all. Therefore, the High Court has committed a serious error in directing to constitute an Arbitral Tribunal in terms of the provisions of the GCC, which are not binding to the parties.
The order passed by the High Court to the extent directing to constitute an Arbitral Tribunal in terms of clause 64(3)(b) of the GCC is unsustainable and deserves to be quashed and set aside and is accordingly quashed and set aside - The High Court has failed to appoint the sole arbitrator in exercise of powers under Section 11(6) of the Act. Therefore, as such the matter is required to be remanded to the High Court for appointment of a sole arbitrator.
Appeal allowed by way of remand.
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2022 (7) TMI 1237
Interpretation of statute - Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement Security Interest Act, 2002 - District Magistrate, Chief Metropolitan Magistrate - persona designata for the purposes of Section 14 of the SARFAESI Act or not - whether the expression “District Magistrate” and the “Chief Metropolitan Magistrate” as appearing in Section 14 of the SARFAESI Act shall deem to mean and include Additional District Magistrate and Additional Chief Metropolitan Magistrate for the purposes of Section 14 of the SARFAESI Act? - HELD THAT:- The underlying purpose of the SARFAESI Act is to empower the financial institutions in India to have similar powers as enjoyed by their counterparts, namely, international banks in other countries. One such feature is to empower the financial institutions to take possession of securities and sell them. The same has been translated into provisions falling under Chapter III of the SARFAESI Act. Section 13 deals with enforcement of security interest. SubSection (4) thereof envisages that in the event a default is committed by the borrower in discharging his liability in full within the period specified in subsection (2), the secured creditor may take recourse to one or more of the measures provided in subsection (4). One of the measures is to take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset. That, they could do through their “authorised officer” as defined in Rule 2(a) of the Security Interest (Enforcement) Rules, 2002.
Considering the scheme of the SARFAESI Act, it is explicit and crystal clear that possession of the secured assets can be taken by the secured creditor before confirmation of sale of the secured assets as well as postconfirmation of sale. For taking possession of the secured assets, it could be done by the “authorised officer” of the Bank as noted in Rule 8 of the Security Interest (Enforcement) Rules, 2002 - The Magistrate has to adjudicate and decide the correctness of the information given in the application and nothing more. Therefore, Section 14 does not involve an adjudicatory process qua points raised by the borrower against the secured creditor taking possession of secured assets.
In view of the scheme of the SARFAESI Act, more particularly, Section 14 of the SARFAESI Act and the nature of the powers to be exercised by learned Chief Metropolitan Magistrate/learned District Magistrate, the High Court in the impugned judgment and order has rightly observed and held that the power vested in the learned Chief Metropolitan Magistrate/learned District Magistrate is not by way of persona designata.
Whether, the Additional Chief Metropolitan Magistrate can be said to be subordinate to the Chief Metropolitan Magistrate? - HELD THAT:- The judicial powers and the powers, under the Cr.PC which may be exercised by the Chief Metropolitan Magistrate, can be exercised by the Additional Chief Metropolitan Magistrate also. Thus, the Additional Chief Metropolitan Magistrate can be said to be at par with the Chief Metropolitan Magistrate in so far as the powers to be exercised under the Cr.PC are concerned. The Chief Metropolitan Magistrate in addition, may have administrative powers. However, for all other purposes and more particularly the powers to be exercised under the Cr.PC both are at par. Therefore, the Additional Chief Metropolitan Magistrate cannot be said to be subordinate to the Chief Metropolitan Magistrate in so far as exercise of judicial powers are concerned.
The view taken by the High Court are agreed upon that (i) the District Magistrate, Chief Metropolitan Magistrate is not a persona designata for the purposes of Section 14 of the SARFAESI Act; (ii) the expression “District Magistrate” and the “Chief Metropolitan Magistrate” as appearing in Section 14 of the SARFAESI Act shall deem to mean and include Additional District Magistrate and Additional Chief Metropolitan Magistrate for the purposes of Section 14 of the SARFAESI Act.
The powers under Section 14 of the SARFAESI Act can be exercised by the concerned Additional Chief Metropolitan Magistrates of the area having jurisdiction and also by the Additional District Magistrates, who otherwise are exercising the powers at par with the concerned District Magistrates either by delegation and/or special order - Appeal dismissed.
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2022 (7) TMI 1236
Deduction u/s 80P - petitioner is the primary agricultural cooperative society, catering to the needs of the agriculturist and it is not a profit making organization - whether within the stipulated period income tax return been filed along with 80 P deductions? - HELD THAT:- Finding that the petitioner is a primary cooperative society catering to the needs of agriculturist and also considering the technical difficulties faced by the petitioner society, further finding that the draft assessment order has been passed on 20.03.2022 and within three days assessment order has been passed give little time or no time to the petitioner to make his submission, give the petitioner a personal hearing following principles of natural justice.
This Court finds that opportunity to be given to the petitioner before finalizing the assessment with sufficient time. Hence the assessment order dated 26.03.2022 is hereby is set aside directing the department to give the petitioner an opportunity to file his documents, make his submissions and personal hearing and thereafter the authorities to pass orders considering the representation and documents in accordance with law.
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2022 (7) TMI 1235
Exemption u/s 11 - exemption was denied by virtue of proviso to section 2(15) r.w.s. 13(8) - HELD THAT:- On perusal of the case laws relied on by the CIT(A) for taking a decision in favour of the assessee, we find the activities of the assessee’s in the said cases and that of the assessee in the instant case are identical.
As in the case of M/s Karnataka Industrial Area Development Board (2020 (11) TMI 483 - KARNATAKA HIGH COURT] and the order of the Bangalore Bench of the Tribunal in the case of Bangalore Development Authority (2019 (6) TMI 429 - ITAT BANGALORE] had held that the assessee is not hit by the proviso to section 2(15) and hence, cannot be denied the benefit of exemption u/s 11 - DR was unable to point out any distinguishing features as regards the activities of the assessee and that of the activities of the assessee’s in the case laws relied on by the CIT(A). We see no reason to interfere with the orders of the CIT(A) and we affirm the same as correct and in accordance with law. Appeals filed by the Department are dismissed.
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2022 (7) TMI 1234
Deduction u/s 80IB - higher amount of deduction u/s 80IB while filing the return in response to notice u/s 153A - HELD THAT:- In the present case as the claim for deduction was enhanced by the assessee which was on account of calculation mistake as observed by the CIT(A) vide his order at para 7.3 (AY 2006-07) mentioning that “The claim was enhanced to Rs. 4,97,80,842/- by the assessee due to arithmetical error in calculating deduction at 25% of the profit of the eligible business.” However, Ld AO has not pointed out any mistake in the enhancement claim or has bring out anything contrary to the claim, except only has pointed out the fact that claim has been enhanced. AO has examined the issue in its entirety and has rejected the claim of assessee for deduction under Sec 80IB. Admittedly, it is an undisputed fact that the enhancement of the deduction claimed in return U/s 139(1) which was increased while filing return in response to notice u/s 153A was on account of arithmetical mistake. Therefore, on perusal of various judicial pronouncements as discussed above, we are of the opinion that the assessee is entitled to such enhancement.
With respect to eligibility of the assessee to claim deduction u/s 80IB of the Income Tax Act 1961, we find that the issue for our adjudication is now well settled as the same has been decided in favour of the assessee by the Co–ordinate Bench of the Tribunal, Nagpur Bench, in assessee’s own case [2015 (11) TMI 1872 - ITAT NAGPUR] allowing the appeals of assessee and dismissed the Revenue’s appeal there by allowing the claim made by the assessee under section 80IB.
Thus respectfully following the order of the Tribunal rendered in assessee’s own case for the assessment year cited supra, we have no hesitation in upholding the order passed by the learned CIT(A) by dismissing these grounds raised by the Revenue in its.
Disallowance of additional depreciation on windmill - whether or not the CIT(A) was correct in granting relief under section 32(1)(iia) of the Act when the same is prospective effective from 1st April 2013 - HELD THAT:- We find that the issue of claim of additional depreciation is covered by the Co–ordinate Bench decision rendered in assessee’s own case and decision of the Hon’ble Bombay High court assessee’s sister concern’s case in M/s. R.B. Seth, Shriram Narsingdas [2017 (8) TMI 611 - BOMBAY HIGH COURT] wherein the issue has been decided in favour of the assessee and against the Revenue. The facts and circumstances being identical, we uphold the order of the learned CIT(A) by dismissing these ground raised by the Revenue in its appeals.
Penalty for overloading of trucks by treating it as compound fee - HELD THAT:- The amount paid to RTO is in the nature of compounding fee, which is necessary for smooth functioning of the business of the assessee and, therefore, the deduction is allowable. After considering the facts of the case and various judicial pronouncements relied upon by the learned Counsel for the assessee, we are of the view that the disallowance made by the AO is not in accordance with law. Consequently, we do not find any reason to interfere with the order of the CIT (A) on this ground, which we uphold the order of CIT(A).
Addition of cash paid for interior works - HELD THAT:- This issue was not explained by the assessee during the assessment proceedings before the AO, however ground raised for this disallowance was duly defended by the assessee to the CIT(A) during the appellate proceedings and Ld CIT(A) has discussed the same and decided the same according to the facts of the case. CIT(A) has examined the facts and concluded that “Thus I find that the total bill amount mentioned in the seized document has been paid to M/s Wishmaya by account payee cheque and duly accounted in books.” After this observation of the Ld CIT(A), which is sustainable, there is no scope for any further adjudication on the issue, we therefore do not see any modification necessary in the verdict of the Ld CIT(A) and accordingly refrain ourselves to interfere with this issue. Therefore this ground of the revenue is dismissed.
Income from house property - CIT-A deleted the addition - HELD THAT:- We are of the view that the disallowance made by the Assessing Officer is not in accordance with law. Consequently, we do not find any reason to interfere with the order of the learned CIT (A) which we uphold by reversing the order of the Assessing Officer. Thus, this ground of revenue is dismissed.
Proportionate disallowance of expenditure merely on the basis of declaration made by sister concern - CIT-A deleted the addition - HELD THAT:- The verification of expenses relates to AY 2010-11 and not to the year under consideration. The learned CIT(A) has given a very detailed reasoning and reversed the order of the Assessing Officer which are reproduced above. Consequently, in view of the detailed reasoning given by the learned CIT(A) which in our opinion is in accordance with law and we find no infirmity to take a view other than the view taken by the learned CIT(A). Keeping this in view, we uphold the order of the learned CIT (A) by dismissing ground raised by the Revenue.
Payments towards purchase of flat in their Apartments - HELD THAT:- As noticed that in both these additions the party to whom the alleged payment in cash was made is common M/s Ashed Properties and Investments Private Limited. In this regard it is brought to our notice by the Ld AR that AO has not brought on record any confirmation of payment of cash from the builder M/s Ashed properties because director of the M/s Ashed Properties in his statement before the department at Banglore wherein it has been stated that no cash payment has been received for purchase of said property from the assessee. It is also evident from the statement recorded u/s 132(4) of the assessee, she was not confronted with the question that whether any cash payment is made by her to the aforesaid builder.
Addition was made on the basis of statement of the spouse of the assessee, without any corroborative evidence or any incriminating material. In this context case laws quoted supra by the Ld AR in the case of Hon’ble Guajat HC in the case of Umang H. Takkar [2011 (10) TMI 477 - GUJARAT HIGH COURT] and Arun Kumar Bhansali Vs. DCIT [2005 (11) TMI 175 - ITAT BANGALORE-A] are relevant. We therefore of the view that the additions made for unexplained cash payment on the assessee cannot survive and accordingly deleted. Consequently, decided in favour of the assessee.
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2022 (7) TMI 1233
Liability of service tax / GST - service rendered to Haj pilgrims - Place of supply of services - Discrimination between HGOs and the Haj Committees - liability of Haj Group Organizers (HGOs) or Private Tour Operators (PTOs) to pay service tax - Nature of services provided by HGOs/ PTOs - Applicability of Mega Exemption Notification no.25 of 2012–ST - ‘religious ceremony’ versus ‘religious pilgrimage’
Nature of services provided by HGOs/ PTOs - HELD THAT:- Haj pilgrimage is a five-day religious pilgrimage to Mecca and nearby Holy places in Saudi Arabia. As per the Holy Quran, all Muslims who are physically and financially sound must perform the Haj pilgrimage at least once in their lives. As provided in Holy Quran, the Haj pilgrimage is one of the five pillars or duties of Islam. Haj takes place only once a year in the twelfth and final month of Islamic lunar calendar. Pilgrimage undertaken to Mecca at other times is known as Umrah. During the five days of Haj, the pilgrims are required to perform a series of rituals, the details of which are not relevant for deciding the issues involved in these petitions - To enable Haj pilgrims of India to undertake Haj pilgrimage, there is a bilateral agreement executed every year between the Kingdom of Saudi Arabia and the Government of India. As per the bilateral agreement, a quota of number of pilgrims is assigned to India. Out of the said quota, normally only 30% is allocated to HGOs. The rest of the quota is made available to the Haj Committee.
Place of provision of services - HELD THAT:- The provisions of the 2012 Rules and the relevant provisions of IGST Act are to a great extent pari materia. As far as the location of service provider in this case (HGOs) is concerned, there is no dispute that all of them have to be registered under Rule 4 of the Service Tax Rules, 1994 and therefore, as per sub-clause (a) of clause (h) of Rule 2, the location of HGO will be the premises for which registration has been granted to HGO. Such premises are necessarily in India. Even assuming that any other sub-clauses of clause (h) are applicable, the location of the service provider, in this case, will be in India. As far as the location of service receiver under clause (i) of Rule 2 is concerned, in this case, the service receiver is the Haj pilgrim who is obviously not registered.
As provided in Rule 3, the place of provision of service is the location of the recipient of service. In this case, the recipients of service from HGOs are Indian residents and accordingly, their place of residence in India will be the place of provision of service. Rule 8 provides that where the location of the provider of service as well as that of the recipient of service is in the taxable territory, the place of provision of service is the location of the recipient of service. Hence, in this case, the place of provision of service is the location of the service receiver in accordance with clause (i) of Rule 2 which will be in taxable territory.
As per Item (iv) of sub-clause (b) of Clause (i) of Rule 2 of the said Rules of 2012, the location of the service receiver will be the usual place of residence of the Haj pilgrim in India. Therefore, the service rendered by the HGOs to Haj Pilgrims is taxable for service tax as the service to Haj pilgrims is provided or agreed to be provided in taxable territory. The service is rendered by providing or agreeing to provide Haj pilgrimage tour package.
Applicability of Mega Exemption Notification - HELD THAT:- The Exemption Notifications under the IGST and the GST Acts so far as the Haj pilgrimage is concerned, are pari materia with the Mega Exemption Notification. It is, therefore, necessary to advert to the Mega Exemption Notification. The Mega Exemption Notification contains a list of services which are exempted from service tax leviable under Section 66B.
Ex facie, Clause 5A will have no application as it is applicable to services by specified organisations in respect of a religious pilgrimage facilitated by the Ministry of External affairs of the Government of India under bilateral arrangement. The specified organisations have been defined in paragraph 1(1)(a)(zfa) of the Mega Exemption Notification. Specified organisations, as stated therein, are only two categories of organisations. The first one is Kumaon Mandal Vikas Nigam Limited, a Government of Uttarakhand Undertaking and Haj Committee or State Committee under the said Act of 2002. The Haj Committee renders services in relation to the Haj pilgrimage which is facilitated by the Ministry of External Affairs of the Government of India under the bilateral arrangement with the Kingdom of Saudi Arabia.
It must be noted here that Clause 5A of the same Mega Exemption Notification grants exemption to the service rendered by Haj Committees in respect of a religious pilgrimage. Thus, the same Mega Exemption Notification makes a clear distinction between ‘religious ceremony’ and ‘religious pilgrimage’. As Haj Committees render services only in respect of Haj pilgrimage, the religious pilgrimage referred to in Clause 5A as regards the Haj Committee, is Haj pilgrimage. Thus, the Mega Exemption Notification exempts the two specified organisations that render services in respect of a religious pilgrimage - The service rendered by HGOs to Haj pilgrims is to facilitate them to reach at the destination to perform rituals/religious ceremonies. No religious ceremony is performed or conducted by the HGOs. The religious ceremony is conducted by Haj pilgrims or by someone else in the Kingdom of Saudi Arabia.
Discrimination made under the Mega Exemption Notification between the services rendered by specified organisations and the services rendered by other service providers in respect of religious pilgrimage - HELD THAT:- The Haj Committee is under an obligation to publish proceedings of the Committee. Under Section 30, it is the duty of the Committee to create Central Haj Fund. Similarly, under Section 32, the State Committees are under an obligation to create State Haj Funds. The Central Government has the power to reconstitute the Haj Committee and to remove the Chairperson, the Vice-Chairperson and the Members of the Committee. There is a similar power vesting in the State Government in respect of the State Committees. Thus, the Haj Committees are statutory bodies working under the control and supervision of the Government. The Haj Committees are the agencies and instrumentalities of the State. Apart from arranging visits of Haj pilgrims for the purposes of Haj pilgrimage, there are important statutory duties assigned to the Haj Committee - the Central Government has all pervasive control over the Haj Committee. The State Governments have the same control over the State Committee. On the other hand, there are no onerous duties attached to HGOs. They earn profit by rendering service to Haj pilgrims. Except for the stringent conditions for the registration, the Government has no control over HGOs.
The arguments based on discrimination have no substance at all, as HGOs and the Haj Committees do not stand on par and in fact, the Haj Committees constitute a separate class by themselves, which is based on a rational classification which has a nexus with the object sought to be achieved.
There is no merit in the challenge in the petitions - Petition dismissed.
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2022 (7) TMI 1232
Reopening of portal for filing of forms TRAN-1 and TRAN-2 - transitional credit - HELD THAT:- Goods and Service Tax Network (GSTN) is directed to open common portal for filing concerned forms for availing Transitional Credit through TRAN-1 and TRAN-2 for two months i.e. w.e.f. 01.09.2022 to 31.10.2022.
Any aggrieved registered assessee is directed to file the relevant form or revise the already filed form irrespective of whether the taxpayer has filed writ petition before the High Court or whether the case of the taxpayer has been decided by Information Technology Grievance Redressal Committee (ITGRC) - GSTN has to ensure that there are no technical glitch during the said time.
The concerned officers are given 90 days thereafter to verify the veracity of the claim/transitional credit and pass appropriate orders thereon on merits after granting appropriate reasonable opportunity to the parties concerned - the allowed Transitional credit is to be reflected in the Electronic Credit Ledger.
SLP disposed off.
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2022 (7) TMI 1231
Maintainability of petition - availability of alternative remedy of appeal - allegation is that ITC availed by the petitioner on the basis the fake and sham supply of goods from M/s Star Metal and other firms through the fake invoices issued by the firms - HELD THAT:- Since the disputed question of fact is involved, therefore, the petitioner is delegated to avail remedy of Appeal under Section 107 of the Act.
The writ petition is dismissed on the ground of alternative remedy, leaving it open for the petitioner to file appeal before the appellate authority.
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