Addition on the ground of unexplained construction and working in progress expenses - profit estimation - no books of accounts and supporting bills/vouchers were maintained by the assessee at the time of search - Held that:- Tribunal considering gross profit of the assessee for the previous year has rightly estimated 1% of the total turnover. In that view of the matter, the view taken by the Tribunal is required to be affirmed. Decided in favour of assessee and against the department.
Reopening of assessment - assessment done on the basis of material found during the course of survey and not on the basis of annulled assessment u/s 143(3)- Held that:- It will not be out of place to mention that the judgment which sought to be relied upon by the tribunal in the case of Babulal Lath (2001 (3) TMI 1031 - ITAT MUMBAI) has not been diluted by any other court wherein held as the proceedings under section 147 were initiated to circumvent the time-barred assessment [which was quashed by the Commissioner (Appeals)] and, hence, they are illegal, without jurisdiction and bad in law.
We are of the considered opinion the tribunal has rightly held that the matter of re-assessment u/s 147 was done on the basis of material found during survey subsequent to assessment on 18.3.03. Therefore, we are of the opinion that tribunal rightly decided the issue in favour of the assessee and first issue is required to be answered in favour of the assessee. With regard to second issue in view of finding on issue no.1, this issue is also answered in favour of the assessee.
Revision under Section 264 - scope of revision - review petition is directed against order [2017 (9) TMI 175 - MADHYA PRADESH HIGH COURT] - Maintainability of review application - Held that:- It is well settled that cases are heard and decided only once. To make a departure from this salutary rule, review application must strictly fall within the established parameters. In the light of settled principle of law, in our considered opinion, there is no merit and substance in this review application. The scope of review is well settled. In a review, Court has very limited jurisdiction circumscribed by the definitive limits. Even after elaborate arguments, no error apparent on the face of record could be pointed out. By seeking review, the applicant cannot prays for rehearing of the writ petition which has already been disposed of.
In view of the foregoing, we find that no case is made out for review. Accordingly, this review petition fails and is hereby dismissed summarily. Review petition fails
Levy of anti dumping duty - effective date - Ascertainment of date on which the Public Notice in Gazette was made available to the Public - Held that:- Unless the levy sees the light of the day through the gazette made available to public, no levy can be imposed. According to appellant RTI exercise shows that the decision of Government was in public domain on 25/10/2008 while anti dumping duty has been levied on 20/10/2005.
The controversy as above is to be resolved by factual enquiry by learned adjudicating authority from the Government press from where gazette of India is published. Enquiry result is to be confronted to the appellant and recording pleadings and evidence of appellant appropriate decision shall be taken by the learned adjudicating authority following the ratio laid down by the apex Court in the Jindal Industries v. Union of India [2002 (5) TMI 63 - HIGH COURT OF DELHI].
The matter is remanded to the learned adjudicating authority.
Refund claim - unjust enrichment - liability of duty on RCC Poles - Section 12(B) of the Central Excise Act, 1944 - After considering various decisions and by observing that the poles are the property of TNEB, and not sold to any other person, the Commissioner of Central Excise (Appeals), held that TNEB is not a manufacturer of RCC poles, and that there is no question of unjust enrichment, when the poles were cleared for their own use. However, the appellate authority held that TNEB would be entitled to refund of duty paid through Personal Ledger Account only, and no refund can be given, in respect of duty paid, through Modvat Account, as TNEB is not the manufacturer.
Held that:- Question, as to whether, incidence of duty, paid by TNEB, has been passed on to the customers, arises if only there is any transaction to that effect. TNEB is not a manufacturer of RCC poles and the same have been used by them. When the Revenue has not produced any evidence to prove that there was any customer, who had purchased RCC poles from TNEB, we fail to understand, as to how, the theory of unjust enrichment, can be applied to the case on hand.
Whether, TNEB was a manufacturer of RCC poles and whether there was any transaction with a customer, on facts, have been concurrently held against the revenue. On the material on record, findings of fact, by the appellate authority and the Tribunal, cannot be considered as perverse - Appeal dismissed - decided against Revenue.
Member's club - club or association or not? - Chapter-V of the Finance Act, 1994 as amended by the Finance Act, 2005 - Held that:- The first petitioner is admittedly a members’ club. The concept of mutuality applies with regard to transactions between a member and the members’ club. A members club is considered as a one legal entity of the member involved irrespective of the member of members or the legal entity that the members seek to clothe the club with, in so far transactions between the club and its members are concerned. When food or drinks are consumed by a member, this transaction is not considered as a sale by the club to its member as on the anvil of mutuality, a member and the club being the same, a member cannot be said to selling anything to itself for the transaction to qualify as a sale - the first petitioner being a members’ club, it is not liable to pay the service tax under the Finance Act, 1994 as amended by the Finance Act, 2005.
The issue as to whether a members’ club is liable to pay service tax under Sections 65, 66 and 67 of the Finance Act, was considered by the Jharkhand High Court. In Ranchi Club Limited [2012 (6) TMI 636 - JHARKHAND HIGH COURT] it has held that, a members’ club is not liable to pay the same - there is no reason as to why a view contrary to that of Ranchi Club Ltd. is required to be taken in the facts of the present case.
The authorities will not proceed with the show cause notice which is a subject matter of the interim application - petition allowed.
Registration u/s 12AA r.w.s. 12A and denial of exemption u/s 80G denied - non-submission of the details especially the original copy of the Trust Deed along with certified copy - Held that:- We find that the assessee has filed para-wise details to the questionnaire issued by the CIT(E) as per his letter dated 29.06.2015 and such reply was received by the office of CIT(E) on 26.11.2015 i.e. before passing of the impugned order - the assessee has also enclosed the photocopy of the MOA and the original was also brought on the same date.
No justification for denial of registration u/s 12AA r.w.s. 12A and exemption u/s 80G to the assessee. We, therefore, direct the ld. CIT(E) to grant registration u/s 12A and exemption u/s 80G of the I.T. Act as requested by the assessee. - Decided in favour of assessee.
Denial of natural justice - absence of any show cause to appellant - Held that:- It is stated by learned counsel for the parties that the matter is already pending before the National Company Law Tribunal (NCLT) and it is listed on 10th October, 2017.
In view of the above and particularly the decision taken by the SEBI on 09.08.2017, we are not inclined to interfere with the order passed by the High Court.
The special leave petitions are dismissed. However, liberty is granted to the petitioner(s) to raise all issues before the NCLT. This is of course subject to all objections. - HC Ref case - 2012 (2) TMI 653 - GUJARAT HIGH COURT
Exclusion of comparables on the grounds of functional dissimilarity - method for comparables analysis was the Transaction Net Margin Method - Held that:- Having perused the impugned order of the ITAT [2017 (8) TMI 225 - ITAT DELHI] the Court is of the view that no substantial question of law arises therefrom in the facts and circumstances of the case. The question of law is left open to be urged in an appropriate case.
Addition u/s 68 - Held that:- A detailed analysis has been undertaken both by the CIT (A) and the ITAT of the materials placed on record. It has been concurrently held that the Assessee has discharged its burden of proving the identity and creditworthiness of the creditors and the genuineness of the transactions. - Decided in favour of assessee.
Refund of Service tax paid erroneously - principles of natural justice - Held that:- The appellant contended that the said amount was paid from its own source under reverse charge mechanism. Both the authorities below had not examined this issue - the matter is remanded to the Adjudicating Authority to decide afresh - appeal allowed by way of remand.
The Allahabad High Court admitted the appeal on substantial questions of law nos. 1 and 2 without issuing notice as the respondent was represented. The case was listed for hearing in the normal course, and parties were allowed to file papers if desired. (2017 (9) TMI 1673 - ALLAHABAD HIGH COURT)
G.P. estimation @ 3% - assessee has clearly violated the provisions of section 40A(3) - cash payments of above ₹ 20,000/were made for the purchases of waste paper - Held that:- The assessee pointed out that in the nature of business, he was engaged, it was not possible to make payment always in cheque. The Tribunal accepted such explanation. It appears from the record that the assessee was in the business of trading in waste paper, collecting it from traders and providing to factories for recycling. The Tribunal therefore, correctly held that the purchases made by the assessee from such small traders would often time be in cash. The assessee has thus offered proper explanation. No question of law arises. - Decided against revenue
Levy of tax on state police - Security Agency Service - Section 65(105)(w) read with Section 65(94) of the Finance Act, 1994 - The decision in the case of THE DEPUTY COMMISSIONER OF POLICE JODHPUR, SUPERINTENDENT OF POLICE VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, JAIPUR [2016 (12) TMI 289 - CESTAT NEW DELHI] contested - Held that:- The decision in the above case upheld - there is no reason to interfere with the impugned order(s) - appeal dismissed.
Maintainability of appeal - time limitation - appeal was dismissed on the ground that the same was filed beyond the period of limitation prescribed under Section 35 of the Central Excise Act, 1944. - Held that:- It is an admitted fact that due to inadvertence, the appeal was filed by the appellant in wrong forum. Since the appeal papers were not returned by the office of the Administrative Commissioner to the appellant and the same was considered for admittance by the office of the Commissioner (Appeals) for disposal, the provisions of Section 14 of the Limitation Act, 1963 can be invoked for condonation of delay, caused between the period of filing the appeal and transferring of the same to the office of the Commissioner (Appeals).
The dismissal of appeal by the Commissioner (Appeals) is not proper and justified - the matter should go back to the Commissioner (Appeals) for deciding the appeal on the basis of documents/records available before him - appeal allowed by way of remand.
Classification of Coal - The coal so imported were claimed to be steam coal, which never attracted any duty during the material period - Held that:- Different Benches of this Tribunal, have taken different views at the instance of the parties. Finally, the matter has reached to the Hon’ble Supreme Court in MARUTI ISPAT AND ENERGY PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX [2014 (10) TMI 944 - SUPREME COURT OF INDIA], where the matter is sub-judice - Without the final verdict of the Hon’ble Supreme Court, the present appeals cannot be decided.
The Larger Bench of this Tribunal in the case of Hatsun Agro Products Ltd. & Others v. Commr. of Customs, Tuticorin [............................] has taken an identical issue and held that liberty is granted to the applicants/assessees to come again before this Tribunal after having the final verdict from the Apex Court, within the prescribed time.
We also grant a liberty to the appellants to come again after having final verdict from the Hon’ble Supreme Court, within the prescribed time, if advised so - appeal disposed off.
Addition u/s 69C - amount candid and voluntary surrender made by the assessee during the course of survey - Held that:- It will not be out of place to mention that except the statement in the letter, the AO has no other material on record to assess the income of ₹ 1,82,00,000/-.
It is settled proposition of law that merely on the statement that too also was taken in view of threat given in question No.36 as narrated by Mr. Gupta and the same sought to have been relied upon, there is no other material either in the form of cash, bullion, jewellery or document in any other form which can come to the conclusion that the statement made was supported by some documentary evidence. We have gone through the record and find that the CIT (A) has rightly observed as stated hereinabove, which was confirmed by the Tribunal. - Decided in favour of assessee
Classification of imported goods - Incense stick 8’ MM 9” MM “Incense stick (unperfumed)” - whether classified under CTH 3307 41 00 or otherwise? - benefit of CVD exemption under N/N. 46/2011, dated 1-6-2011 - Held that:- The Customs Tariff Heading 3307 41 00 covers agarbatti and other odoriferous preparation which are operated by burning. The imported goods, though described as incense stick, are unperfumed and hence, cannot be covered by the above customs tariff heading since they cannot be considered as odoriferous preparation. That rules out their classification under Heading 3307 41 00 - the benefit of CVD exemption under N/N. 46/2011, dated 1-6-2011 will not be available to the imported goods.
Undervaluation - no evidence of contemporaneous import - Held that:- The Commissioner (A) has recorded that the Department has not given any evidence of contemporaneous import for reassessing the value - decision upheld.
Reversal of CENVAT Credit - benefit of N/N. 82/84 is availed - denial of benefit on the ground that the benefit of N/N. 82/84 is availed and exemption granted, appellant having availed CENVAT credit on common input services is required to reverse an amount equivalent to 6% of the value of the goods - Held that:- Identical issue decided in appellant own case INOX AIR PRODUCTS PVT. LTD. VERSUS CCE & ST VISAKHAPATNAM [2017 (9) TMI 500 - CESTAT HYDERABAD], where reliance was placed in the case of DHARAMSI MORARJI CHEMICAL CO. LTD. Versus COMMR. OF C. EX., RAIGAD [2010 (3) TMI 561 - CESTAT MUMBAI], where the very same rule 6 of Cenvat Credit Rules was invoked, where the Bench has held that the provisions of Rules are not attracted in case in hand where CT-3 certificate has been issued - reversal of CENVAT Credit not required - appeal allowed - decided in favor of appellant.
Determination as per the provisions of the Insolvency and Bankruptcy Code 2016 - Held that:- After hearing submissions of the counsel for the petitioner and respondent and having perused the record, it is clear that the petitioner has filed the affidavit and bank statement on 17.07.2017 and 18.07.2017 respectively.
Therefore, the instant petition stands ABATED for non-compliance of the provisions in view of the MCA notification dated 29.06.2017.
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