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Showing 361 to 380 of 1719 Records
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2020 (1) TMI 1359
Applicability of amended provisions of Section 56(2)(vii)(b) - under-valuation in the purchase price of the property qua stamp duty valuation and applied provisions of Section 56(2)(vii)(b) of the Act and worked out the adjusted purchase consideration - HELD THAT:- It is not in dispute that purchase transactions of immovable property were carried out in FY 2011-12 for which full consideration was also parted with the seller. Mere registration at later date would not cover a transaction already executed in the earlier years and substantial obligations have already been discharged and a substantive right has accrued to the assessee therefrom. The pre-amended provisions will thus apply and therefore the Revenue is debarred to cover the transactions where inadequacy in purchase consideration is alleged. We thus find merit in the issue raised on behalf of the assessee. The order of the CIT(A) is accordingly set aside and the AO is directed to delete the additions made under s. 56(2)(vii)(b) of the Act and restore the position claimed by the assessee.
Chargeability of interest u/s 234B on additions made - HELD THAT:- As relying on M/s. Anand Vihar Construction Pvt. Ltd.[2018 (11) TMI 1738 - ITAT RANCHI] Interest under s.234A & 234B of the Act is chargeable with reference to returned income only, we are inclined to adjudicate the legal objection raised by way of additional ground in favour of the assessee.
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2020 (1) TMI 1358
Validity of re-assessment proceedings - Eligibility of reasons recorded - non supply of reasons to assessee - eligibility of approval granted by ACIT - addition u/s 68 - HELD THAT:- Addl. CIT while granting or forwarding copy of the reasons to the Pr. CIT for his approval did not mention any fact in the proforma which is blank and no remarks have been mentioned by him despite his signature appeared thereon. The Pr. CIT while granting sanction/approval to reasons recorded for reopening of the assessment has simply mentioned “Yes, I am satisfied”. Such type of approval was not found valid in many cases. The ITAT Delhi C-Bench in the case of M/s. Ganesh Ganga Investments Pvt. Ltd [2019 (11) TMI 862 - ITAT DELHI] quashed the reopening of the assessment in the similar circumstances.
All the documents and Annexures referred to in the reasons have not been supplied to the assessee and that approval granted by Pr. CIT is invalid. Therefore, reopening of the assessment is wholly invalid and void abinitio. Resultantly, the reopening of the assessment is liable to be quashed. Following the reasons for decision in the case of M/s. Ganesh Ganga Investments Pvt. Ltd.[supra] we set aside the Orders of the authorities below and quash the reopening of the assessment. In the result, all the additions stand deleted. - Decided in favour of assessee.
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2020 (1) TMI 1357
Exemption u/s 11 - Charitable activities - applicability of Section 11(23) r.w.s. 2(15) - Maintainability of appeal - low tax effect - HELD THAT:- Learned counsel for the appellant, on instructions issued by the Department of Revenue, Ministry of Finance vide F.No.390/Misc./116/2017-JC dated 22.08.2019, seeks permission to withdraw this appeal along with pending applications therein due to low tax effect.
Permission granted, subject to just exceptions.
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2020 (1) TMI 1356
Reopening of assessment u/s 147 - charitable activity u/s 2(15) - HELD THAT:- The activity of the petitioners cannot be said to be carrying on any activity in the nature of trade, commerce or business, so as to apply proviso to Section 2(15) which defines 'charitable purpose'. Therefore, the impugned notice as well as the assessment order passed by the respondent are required to be quashed and set aside.
The petitions, therefore, succeed and are accordingly allowed. The impugned notice issued by the respondent under Section 148 of the Act is therefore quashed and set aside - Decided in favour of assessee.
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2020 (1) TMI 1355
Principles of Natural Justice - it is submitted that respondent was obliged to issue a notice upon the petitioner in form GSTR-3A seeking filing of the returns within a period of 15 days and it is upon failure of the petitioner in terms of such notice that any action could have been taken under the provisions of the act if so applied - liability of interest under Section 50 of the Act - HELD THAT:- The order to be not assigning any reasons whatsoever. Also, it is noticed that prior to passing of the impugned order, no opportunity of hearing was ever afforded to the writ-petitioner. As such, there was gross violation of principles of natural justice in passing of the impugned order, which is hereby quashed - Petitioner shall appear before the appropriate authority on 28.01.2020, whereafter the proceedings shall commence afresh, affording opportunity of proper hearing to the petitioner, also enable to place on record additional material, if so required/desired and only thereafter the officer shall pass a fresh order assigning reason, in accordance with law.
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2020 (1) TMI 1354
Unexplained cash deposited in the bank account - HELD THAT:- Addition sustained by the CIT(A) deserves to be deleted and therefore the question of allowing telescoping benefit does not arise for consideration at all. As rightly submitted by the learned counsel for Assessee, the AO having accepted the correctness of the cash book in paragraph-6 of his remand report was not justified in expressing some doubts on the genuineness of the cash book maintained by the Assessee.
As argued by him, the fact that there was low cash balance during the opening and closing days of the financial year and maintenance of huge balance in a particular period cannot be the basis to doubt the genuineness of the cash book.
Cash was withdrawn from bank despite cash balances being available in the cash book, cannot be the basis to doubt the genuineness of the cash book. The presence of sundry creditors and the fact that the Assessee could have discharged sundry creditors instead of having cash in hand cannot also be the basis to doubt the genuineness of the cash availability as per cash book. Therefore the addition deserves to be deleted as the source of funds for cash deposit in the bank account stands duly explained and therefore the addition sustained by the CIT(A) deserves to be deleted and is hereby directed to be deleted. - Decided in favour of assessee.
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2020 (1) TMI 1353
Dishonor of Cheque - insufficiency of funds - discharge of liability arising out of a sale transaction - Section 142 of Negotiable Instruments Act - HELD THAT:- Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138, there would be no person against whom a Court can proceed. There cannot be a prosecution without an accused. The offence under Section 138 is person specific. Therefore, the Parliament declared under Section 142 that the provisions dealing with taking cognizance contained in the CrPC should give way to the procedure prescribed under Section 142. Hence the opening of non-obstante clause under Section 142. It must also be remembered that Section 142 does not either contemplate a report to the police or authorise the Court taking cognizance to direct the police to investigate into the complaint.
Section 138 creates an offence and prescribes punishment. No procedure for the investigation of the offence is contemplated. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138 - In the present case though the instrument was issued by the Director and Executive Director of the Company, the Company was not arraigned as a party and only the individuals are arraigned as party and the said cheque was issued for non-payment of sale consideration - Admittedly, no statutory notice was issued as against the petitioner and he was implicated by filing a petition under Section 319 of Cr.P.C and the same was ordered on 17.08.2009 without following necessary procedures required under section 138 and 142 of Negotiable Instruments Act.
Petition allowed.
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2020 (1) TMI 1352
Dishonor of Cheque - discharge of burden to prove - Section 138 of the Negotiable Instruments Act - HELD THAT:- It is trite that while exercising revisional jurisdiction in a case involving concurrent findings of fact arrived at by two Courts below, the High Court cannot act as a second appellate Court.
It may be pertinent to point out that the cheque in this case, viz., Ex.P1 is dated 03.05.2010 and it has been signed by Thangaraju (A2) in his capacity as the partner of M/s.Bright Spinners (A1). Whereas, the cheque (Ex.D5), for which Rajendran has initiated a separate prosecution, is dated 04.05.2010 and it has been signed by Devasenathipathy (A3) in his capacity as the partner of M/s.Bright Spinners (A1). Apart from the fact that both Sampathkumar and Rajendran have approached two different lawyers of the same chamber, there is no other satisfactory material to infer that the cheque was issued as security for the supply of yarns - it is not the case of the accused that the complainant used to take blank cheques as security for the yarns supplied by him. It is seen that the impugned cheque in this case is dated 03.05.2010 and it was presented by the complainant only on 22.10.2010. Had the accused given the impugned cheque as security for purchasing yarns and the complainant not supplied the yarns, the accused would have issued directions to their Bank to stop payment, but, that has not been done in this case.
Though the accused can discharge the burden under Section 139 of the Negotiable Instruments Act by preponderance of probability, even that has not been done in this case.
Criminal Revision is dismissed.
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2020 (1) TMI 1351
Set off of loss against the deemed income determined u/s 115BBE - HELD THAT:- Indisputably, the provisions of Section 115BBE as existed prior to the amendment does not provide that the losses shall not be allowed to be set off against the income referred in Section 115BBE and it is only to dispel the uncertainty prevailing on the issue, the provision was amended.
A bare perusal of the provisions makes it abundantly clear that it cannot be applied retrospectively. Moreover, now vide circular No. 11/2019, the CBDT has clarified in unequivocal terms that the term 'or set off of any loss' was inserted vide the Finance Act, 2016 w.e.f. 1.4.17 and therefore, an assessee is entitled to claim set off of loss against the income determined under section 115BBE till the Assessment Year 2016-17. It is further clarified that the pending assessment and litigation on this issue shall be handled accordingly. In this view of the matter, the contention sought to be raised by the Revenue as aforesaid, cannot be countenanced by this Court.
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2020 (1) TMI 1350
Refund of service tax - rejection of refund the ground that tax amount was not shown in the invoices and Service Tax registration was not reflected in the invoices - time limitation - HELD THAT:- The only logic that can be put forth in this case is that appellant had plenty of scope to seek refund of the disputed amount before the quarter ending December, 2017 in order to cover its claim within the period of limitation. But the same logic would not sustain primarily on two grounds. First, there is no evidence on record that any refund claim was made for the previous quarter in which FIRC dated 17.01.2017 would have been included. Second and the most significant reason to negativate such logic is that the rule provided appellant to file refund claim within one year and going by the reason cited by the respondent-department, the same would expire on 16.01.2017 but it is paradoxical to the provision contained in Clause 2 of Board’s Notification No. 27/2012-CE (NT) that authorised claimant to filed only one refund application in one quarter. This would extinguish the right of filing refund claim within one year by squeezing it further by atleast 16 days.
The findings of the Larger Bench of the Tribunal in CCE & CST, BENGALURU SERVICE TAX-I VERSUS M/S. SPAN INFOTECH (INDIA) PVT. LTD. [2018 (2) TMI 946 - CESTAT BANGALORE] that the limitation period would expire at the end of the quarter remains unaltered even after the amended Notification No. 14/2016-CE (NT) dated 01.03.2016 has come in to force.
The appellant is entitled to get the said refund with applicable interest which respondent-department is directed to pay within two months of the communication of this order - appeal allowed - decided in favor of appellant.
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2020 (1) TMI 1349
Seeking for extension of time of the Corporate Insolvency Resolution Process - Section 12(2) & (3) of the Insolvency and Bankruptcy Code, 2016 and Regulation 40 of IBBI (Insolvency Resolution Process of Corporate Persons) Regulations, 2016 r/w. attendant Rules & Regulations - HELD THAT:- Taking in to consideration the above order passed by the Hon'ble Supreme Court of India in DR. ESTHER MALINI VICTOR VERSUS ORIENTAL BANK OF COMMERCE AND ORS. [2019 (10) TMI 1372 - SC ORDER] it is represented by the Learned Counsel for the Applicant/RP that the CoC in its meeting dated 24.12.2019 and consequent to the e-voting a resolution was unanimously passed on 07.01.2020 and approved the resolution seeking for extension of time before this Tribunal under relevant provisions of IBC, 2016.
In view of the averments made in the application and the submissions made by the Learned Counsel for the Applicant/RP and also taking into consideration the order passed by the Hon'ble Supreme Court of India dated 25.10.2019, wherein the RP is directed to keep the company as a going concern, the CIRP is hereby extended by a further period of 90 days with effect from 13.01.2020 - Application allowed.
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2020 (1) TMI 1348
Refund of the amounts deposited during investigation - appeal of assessee was rejected on the ground that the issue relating to reversal of MODVAT credit was pending with the adjudicating authority - HELD THAT:- The disposal of application for refund itself has been premature.
Whether such amount is available for disposition by the central excise authorities or not, any confirmation of recovery under section 11A of Central Excise Act, 1944, along with interest and penalty, is recoverable under appropriate provisions of Central Excise Act, 1944. The amount deposited is not a limiting factor nor the only source of such recovery.
Even if it was considered essential to retain the amount in deposit till conclusion of adjudication proceedings, it would have been appropriate for the competent authority to have withheld any decision on the application for refund till completion of the process. Under section 11B of Central Excise Act, 1944, rejection of refund claim can arise only on ineligibility in accordance with the provisions wherein. There is no reference to ‘premature’ claim as ground for rejection.
Application restored to the original authority for disposal on merit.
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2020 (1) TMI 1347
Imposition of penalty under section 112(a) of Customs Act, 1962 - appellant had not cleared the goods for home consumption and had sought re-export owing to the statutory impossibility of registration of the vehicle in India - HELD THAT:- The appellant had not cleared the goods for home consumption and had sought re-export owing to the statutory impossibility of registration of the vehicle in India. It would appear that the goods, procured on lease, was intended for use as equipment and there is no evidence that the appellant had any intention to misuse of the same. From the submissions made, and absence of any finding to the contrary, it would appear that the awareness of ineligibility for import came to the attention of the appellant only upon it be pointed out to them. In any case, the goods could not have been deployed, under any circumstances, without proper registration by the competent authority. There is, therefore, no evidence that the appellant would have been complicit in attempting to import goods that could be concealed from the registering authorities.
There is no reason for burdening the importer with penalty, intended by law for deterrence, under section 112 of Customs Act, 1962 - appeal allowed - decided in favor of appellant.
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2020 (1) TMI 1346
Valuation of imported goods - stainless steel melting scrap-316 grade - mis-declaration of value - case of appellant is that the assessing authorities should have subjected the material to testing but had failed to do so - HELD THAT:- In M/S CHANDAN STEEL LTD. VERSUS COMMISSIONER OF CUSTOMS (EXPORT) , JNCH, NHAVA SHEVA [2018 (5) TMI 995 - CESTAT MUMBAI], the Tribunal has held that customs examination report, without obtaining the expert opinion, cannot be the reason to determine the nature of goods and that mere agreement by the appellant or his employee with the contents of such examination report cannot be considered as conclusive proof in support of claim of Revenue regarding confiscation of goods, payment of fine and penalty.
There are no reason to disagree with the finding therein that report of visual examination of the cargo does not offer sufficient evidence to conclude that the goods are to be used other than for the purposes claimed or that these had been mis-declared - appeal allowed - decided in favor of appellant.
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2020 (1) TMI 1345
Absolute confiscation of the seized imported goods - Analog Watches - Enhancement of punishment awarded - HELD THAT:- It is observe that enhanced punishment was awarded without following the due process and CHA was also penalised against whom no specific direction was available in the order of CESTAT for initiation of adjudication process.
Appeal allowed.
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2020 (1) TMI 1344
Cash Refund of the accumulated CENVAT Credit - Ship Management Service which includes crew Management service provided by the appellant to their associate overseas company at Bermuda - export of services or not - allegation that the services rendered to their overseas group companies is not an ‘export service’ as defined under Place of Provisions of Service Rules, 2012 - period October, 2015 to December, 2015, April, 2016 to September, 2016 and October, 2016 to December, 2016 - HELD THAT:- The undisputed facts are that by an agreement dated 1.4.2013 between the appellant (described as ‘Ship Manager’)and the overseas associate company Torm Bermuda (called as ‘Primary Manager’), various services were agreed to be provided by the appellant to their overseas associate company. The services mentioned in the said agreement are broadly relate to Technical and Operation Services, Agency Services, SQE Services, Vetting Services, Crew Management Services etc.. The scope of each said services are narrated under various clauses of the agreement which as whole described as Ship Management service. Interpreting one of the said services particularly ‘Agency Services’, the learned Commissioner (Appeals) has concluded that the relation between the appellant service provider and the overseas service recipient are not on principal to principal basis but as a principal and agent which falls within the scope of ‘intermediary’ as defined under Rule 2(f) of POPS Rules, 2012, hence not an export service.
This issue has been considered by the Tribunal in the case of M/S SEASPAN CREW MANAGEMENT INDIA PVT. LTD. VERSUS COMMISSIONER OF CGST, MUMBAI [2019 (5) TMI 1813 - CESTAT MUMBAI] where M/s Seaspan Crew Management Pvt. Ltd. were supplying the manpower to their overseas associate company Seaspan Canada. The allegation of the Department was that the services provided by Seaspan India to Seaspan Canada as an intermediary, hence the services rendered cannot qualify as export services, consequently, refund under Rule 5 of the CENVAT Credit Rules, 2004 is not admissible to them - This Tribunal in more or less similar circumstances held that the service provided by the assessee in the said case was not an ‘intermediary service’ but on principal to principal basis, hence, eligible to refund under Rule 5 of the CENVAT Credit Rules.
There are not much difference in the types of services provided by the appellant in the present case in contrast to stated case, hence, applying the principles laid down in the said judgment, it can be concluded that the service provided by the Appellant fall under the scope of export service, consequently, the impugned orders are set aside and the appeals are allowed.
Appeal allowed - decided in favor of appellant.
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2020 (1) TMI 1343
Recovery of inadmissible CENVAT credit - cross-utilising of credit by manufacturers as providers of service - review of the order by the competent Committee of Chief Commissioners under section 35E(1) of Central Excise Act, 1944 - HELD THAT:- Though it was grossly improper on the part of the Committee of Chief Commissioners to insist that an appeal filed on their direction by the adjudicating authority should even suggest that decisions accorded by competent appellate authorities or constitutional courts do not bind adjudicating authorities merely because the executive authority has chosen not to accept those, we do not intend to dwell overmuch on such demonstrated lack of respect for rule of law and leave it to the management of the Central Board of Indirect Taxes & Customs to evolve appropriate methods for proper sensitisation at the senior levels that are entrusted with the high responsibility of review.
Appeal dismissed - decided against Revenue.
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2020 (1) TMI 1342
Recovery of wrongly availed CENVAT credit - legality and propriety by the competent authority under section 35E of Central Excise Act, 1994 - period January 2005 and October 2007 - HELD THAT:- The issue of entitlement to avail credit by the recipient of material on which liability to duty has been discharged by the supplier, despite non-leviability of duty, is now settled by the decision of the Tribunal in M/S NEULAND LABORATORIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, HYDERABAD- I [2013 (11) TMI 1339 - CESTAT BANGALORE] where it was held that the assessee may receive inputs/capital goods/services classifiable under almost all the headings, it is difficult to imagine that legislature would require the assessee to determine whether duty is payable for all these items or not and then take credit. Even a jurisdictional Central Excise officer may not have all the items listed in the Schedule for assessment. In fact, assessment has been taken away even from the Central Excise officer.
Appeal dismissed - decided against Revenue.
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2020 (1) TMI 1341
Disallowance u/s. 40(a)(ia) - HELD THAT:- As is clear from the provisions of Section 40(a)(ia) if the payee had filed the return of income and shown the interest income in the Profit & Loss A/c which is clear from the Form-26A filed by the assessee, which was sent by the CIT(A) to the AO for verification and the Assessing Officer thereafter had submitted the report but simultaneously taken the objection that the said certificate of Form 26A was not filed before the AO
The objections of AO before the CIT(A) and before the Ld. DR is technical in nature and once the content of Form-26A were not disputed, then the assessee is entitled to the benefit of proviso to Section 40(a)(ia) of the Act, for that purpose we may fruitfully rely upon the decision of the Hon'ble Supreme Court in the case of CIT Vs. Ansal Land Mark Township (P) Ltd. [2016 (8) TMI 1281 - SC ORDER]. Accordingly, Ground Nos. 1 & 2 raised by Revenue are dismissed.
Rejection of book results u/s. 145 - bills/vouchers found to be inaccurate/bogus/excessive - HELD THAT:- Once the books of account have rejected by the Assessing Officer and confirmed by the CIT(A), then, it was incumbent upon both the lower authorities i.e., AO as well as the CIT(A) to physically verify the bills/vouchers of the expenditure and specify the expenditure which in the estimation of both the authorities were excessive or was not related to the business of the assessee or was bogus. Needful was not done by the Ld. CIT(A) and he had reduced the disallowance from ₹ 1 Crore to ₹ 5 Lakhs - we are of the opinion that this issue is required to be remanded back to the file of Ld. CIT(A) with a direction to verify the bills/vouchers and give a categorical finding as to the nature of expenditure incurred by the assessee, which were found to be excessive/bogus etc.
While examining the bills/vouchers, pertaining to freight and track running expenses, if the Ld. CIT(A) comes to the conclusion that the expenditure were more than ₹ 1 Crore, then, he will not enhance the disallowance from ₹ 1 Crore to any other amount. In the converse if the Ld. CIT(A) comes to the conclusion that the expenditure (bills/vouchers) pertaining to freight and truck running expenditure were found to be in order, then, no disallowance would be made or the disallowance would be restricted to the actual bills/vouchers found to be inaccurate/bogus/excessive. This exercise would be done by the CIT(A) in accordance with law, after giving due opportunity of hearing to the assessee. It is expected the Ld. CIT(A) shall pass a reasoned and speaking order - Ground No. 3, raised by the Revenue is treated as allowed for statistical purposes.
Disallowance from Freight and Truck Repair & Maintenance Expenses - HELD THAT:- CIT(A) had passed a detailed order, after verifying the case record and thereafter had restricted the disallowance to ₹ 1 Lakh instead of ₹ 25 Lakhs. Since the Ld. CIT(A) had verified the record and nothing had been pointed by the Ld. DR that the record which was verified was not sufficient to come to the conclusion or the finding recorded by the Ld. CIT(A) in para 11 was incorrect or contrary to the facts. In the light of the above, we do not find any reason to interfere with the findings giving by the Ld. CIT(A).
Depreciation for the trucks - HELD THAT:- Case of the assessee was decided on scrutiny u/s. 143(3) of the Act and no doubt by the AO in the A.Y. 2009-10 in respect of claim of depreciation.
The record further shows that the assessee has given the details of the trucks along with Chassis number, which were put to use after being registered with MP State Transport Department. This information was also available on the website of the MP State Transport Department. In our view, for the purpose of claiming the depreciation, the assessee was required to prove that the asset was put to use in the year under consideration. For the purposes of claiming the depreciation for the trucks, it would be sufficient if the trucks were registered with the Transport Authorities before the cut-off date and have a valid petrol/oil receipt showing the consumption of fuel. This had sufficiently been demonstrated by the assessee before the authorities below.
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2020 (1) TMI 1340
Issue Notice - No coercive steps shall be taken against the petitioner in the meanwhile.
Tag the appeal with PRINCIPAL COMMISSIONER OF INCOME TAX-2 VERSUS KAMLESH PRAHLADBHAI MODI [2018 (5) TMI 1164 - GUJARAT HIGH COURT].
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