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Showing 381 to 400 of 1486 Records
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2020 (3) TMI 1106
Benami transaction - the plaintiff failed to prove that money was paid from the fund of the joint family of the plaintiff and defendant No.1 - As urged that the plaintiff failed to prove that money was paid from the fund of the joint family of the plaintiff and defendant No.1. - maintainability of the suit - HELD THAT:- In the instant case when the defendant abandoned the issue of maintainability of the suit on the point of inconsistent plea of title by the plaintiff and again right of tenancy over the self same property, the defendant cannot challenge the maintainability of the suit at the stage of first appeal. Mr. Saha also refers to the decision of this Court in Smt. Minati Sen @ D.P. Sen vs. Kalipada Ganguly [1997 (6) TMI 366 - CALCUTTA HIGH COURT] in the said report the respondent raised an issue that both the Courts below did not consider as to whether the defendant/appellant was guilty for damaging the suit property by addition and alteration. This Court found that the said issue was not pressed by the plaintiff/respondent in the trial court and held that when the issue was not pressed by the plaintiff/respondent in the trial court, there was no justification for the appellate court to go into this question and decide the same in favour of plaintiff/respondent. When a party has raised an issue in the trial court and deliberately has abandoned it, he cannot be allowed to raise it again at the appellate stage.
Order VII Rule 7 of the Code of Civil Procedure authorizes the appellant to claim a relief in the alternative on the facts stated in the plaint and it is open to him to pray even for inconsistent relief. But it must be shown by the plaintiff that each of such pleas is maintainable.
In the instant case, as gone through the plaint time and again. In paragraph 8 of the plaint, the plaintiff/respondent stated as to how the consideration money was paid to purchase the suit property in the name of defendant No.1. In paragraph 12 of the plaint the plaintiff stated that since the suit property stood in the name of the defendant No.1 and in order to avoid future complications the defendant No.1 settled 2/3rd share of the suit property in favour of plaintiff and proforma defendant No.2 at yearly settlement of ₹ 9/- by executing a registered deed of settlement on 10th January, 1955. Thus agreement with the learned Advocate for the respondent that the respondent claimed title in respect of 1/3rd share of the suit property on the basis of the said registered deed of settlement executed by the defendant No.1.
Whether finally published Record of Rights in respect of the suit property would disentitle the plaintiff to institute a suit for declaration of title? - In Jharna Ghosal vs. Satyendra Prosad Dhar [1978 (1) TMI 178 - CALCUTTA HIGH COURT] held that Section 57B of the said Act did not either expressly or by necessary implication exclude the jurisdiction of civil courts to decide questions of title.
No substantial question of law involved in the instant appeal and this appeal is liable to be dismissed on contest, however without cost.
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2020 (3) TMI 1105
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - Time Limitation - HELD THAT:- The ‘Corporate Debtor’/Respondent has neither challenged the decree as mentioned earlier nor filed any review till the date of the filing of the petition under Section 7 of the I & B Code. It is also clear that the Defendant No.1 to 5 in the said suit were jointly and severally liable to discharge their obligations of the decree above leaving it to the sole discretion of the Plaintiff/Appellant to recover the said amount from any of the said Defendants.
Time Limitation - HELD THAT:- The ‘Corporate Debtor’/Respondent made a false statement before the Adjudicating Authority, and the Adjudicating Authority had no reason to disbelieve such a statement. The Adjudicating Authority had failed to appreciate that the ‘Corporate Debtor’/Respondent had mischievously not placed any record about the alleged Review Application. In the circumstances, the impugned order dated 05th July 2019 regarding the rejection of the Application filed under Section 7 of the I & B Code deserves to be rejected.
Since all the ingredients of Section 7 of the, I & B Code 2016 are satisfied and the Application for initiation of the corporate insolvency resolution process is complete, therefore, the Appeal is allowed.
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2020 (3) TMI 1104
Approval of Final Resolution Plan - section 31 of the IBC - extension of CIRP period - HELD THAT:- The resolution professional has examined the modified plan and has found it to be in compliance with section 30(2) of the IBC read with regulation 38 of the CIRP Regulations.
The provision regarding waiver of any liability accruing in respect of minimum alternate tax (MAT) kept in resolution plan originally has been deleted in modified plan. The term of plan is increased from three years to seven years without affecting the feasibility and viability of the plan. The resolution professional Mr. Vikram Bajaj will be the monitoring and supervising agency for implementation of the plan. The remuneration of the monitoring agency shall be ₹ 1,50,000 plus taxes and out of pocket expenses at actual - The corporate debtor will stand amalgamated with the resolution applicant as per the scheme of amalgamation. It is stated that the scheme of amalgamation between Swadisht Oils Pvt. Ltd. (transferor company) and Rajasthan Liquors Ltd. (transferee company) as given in annexure B to modified resolution plan at pages 153-168 is to facilitate the insolvency resolution of transferor company and shall enable continuity of operations of SOPL and enhance its viability, apart from saving employment of existing employees and works.
The modified resolution plan submitted by "Atyant Capital India Fund-1" is found in conformity of section 30(2) of the Code and the same is approved.
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2020 (3) TMI 1103
Organisation of a political nature as barred from receiving foreign contributions - Sections 5 (1) and 5 (4) of the Foreign Contribution (Regulation) Act, 2010 and Rules 3 (i), 3 (v) and 3 (vi) of the Foreign Contribution (Regulation) Rules, 2011 as violative of Articles 14, 19 (1) (a), 19 (1) (c) and 21 of the Constitution of India - Guidelines for declaration of an organisation to be an organisation of a political nature not being a political party are found in Rule 3 of the Rules - principal challenge of the Appellant-organisation to Section 5 (1) of the Act is on the ground that the terms ‘activity, ideology and programme’ are vague and have not been defined in the Act which result in conferring unbridled and unfettered power on the executive. Therefore, the Appellant-organisation contended that Section 5 (1) is violative of Article 14 of the Constitution. Section 5 (4) is also challenged on the ground that the authority to whom a representation should be made has not been specified and it is not clear whether the authority would be an independent authority or the Central Government itself
HELD THAT:- Where the provisions of a statute are vague and ambiguous and it is possible to gather the intention of the legislature from the object of the statute, the context in which the provisions occur and purpose for which it is made, the doctrine of “reading down” can be applied - DTC v. Mazdoor Congress [1990 (9) TMI 334 - SUPREME COURT] . To save Rule 3(v) from being declared as unconstitutional, the Court can apply the doctrine of “reading down”.
A balance has to be drawn between the object that is sought to be achieved by the legislation and the rights of the voluntary organisations to have access to foreign funds. The purpose for which the statute prevents organisations of a political nature from receiving foreign funds is to ensure that the administration is not influenced by foreign funds. Prohibition from receiving foreign aid, either directly or indirectly, by those who are involved in active politics is to ensure that the values of a sovereign democratic republic are protected. On the other hand, such of those voluntary organisations which have absolutely no connection with either party politics or active politics cannot be denied access to foreign contributions. Therefore, such of those organisations which are working for the social and economic welfare of the society cannot be brought within the purview of the Act or the Rules by enlarging the scope of the term ‘political interests’. We are of the opinion that the expression ‘political interests’ in Rule 3 (v) has to be construed to be in connection with active politics or party politics.
Any organisation which habitually engages itself in or employs common methods of political action like 'bandh' or 'hartal', 'rasta roko', 'rail roko' or 'jail bharo' in support of public causes can also be declared as an organisation of political nature, according to the guideline prescribed in Rule 3 (vi). Support to public causes by resorting to legitimate means of dissent like bandh, hartal etc. cannot deprive an organisation of its legitimate right of receiving foreign contribution. It is clear from the provision itself that bandh, hartal, rasta roko etc., are treated as common methods of political action. Any organisation which supports the cause of a group of citizens agitating for their rights without a political goal or objective cannot be penalized by being declared as an organisation of a political nature. To save this provision from being declared as unconstitutional, we hold that it is only those organisations which have connection with active politics or take part in party politics, that are covered by Rule 3 (vi). To make it clear, such of those organisations which are not involved in active politics or party politics do not fall within the purview of Rule 3 (vi). We make it clear that organisations used for channeling foreign funds by political parties cannot escape the rigour of the Act provided there is concrete material. In that event, the Central Government shall follow the procedure prescribed in the Act and Rules strictly before depriving such organisation the right to receive foreign contributions.
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2020 (3) TMI 1102
Violation of provisions of Section 10(6) of the FEMA Act - Responsibility of Authorised person - goods had arrived in India, but the Company failed to submit Bill of Entry and did not take delivery of the goods - goods not released and as such kept in bonded warehouse - defence of the appellant that he could not be made responsible for the stated contravention. For, he became the Managing Director of the Company much later i.e. on 22.10.2001 - HELD THAT:- In the present case, the finding of fact is that the import of goods for which the foreign exchange was procured and remitted was not completed as the Bill of Entry remained to be submitted and the goods were kept in the bonded warehouse and the Company took no steps to clear the same. As a result, Section 10(6) of the FEMA Act is clearly attracted being a case of not using the procured foreign exchange for completing the import procedure. It is also possible to take the view that the Company should have taken steps to surrender the foreign exchange to the authorised person within the specified time as provided in Regulation 6 of the Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulations, 2000 (for short, “the FEMA Regulations”) issued by the Reserve Bank of India
Contravention referred to in Section 10(6) of the FEMA Act is a continuing actionable offence. If so, the Company and the persons managing the affairs of the Company remain liable to take corrective measures in right earnest. Considering the admitted fact that the appellant took over the management of the Company on 22.10.2001 and was fully alive to the default committed by the Company, yet failed to take corrective steps in right earnest. Notably, being conscious of such contravention, the appellant had sought indulgence of the authorities for more time.
Appellant cannot now be heard to contend that no liability could be fastened on him individually. Indeed, regulation 6 of the FEMA Regulations provides for the period within which the foreign exchange ought to be surrendered if the Company was not wanting to take delivery of the goods imported. That, however, does not mean that the contravention ceased to exist beyond the specified period. On the other hand, after the specified period as predicated in regulation 6 had expired, it would be a case of deemed contravention until rectified.
It is not the case of the appellant that he is not an officer or a person in charge of and responsible to the Company for the conduct of the business of the Company, as well as, the Company on or after 22.10.2001. Considering the fact that the appellant admittedly became aware of the contravention yet failed to take corrective measures until the action to impose penalty for such contravention was initiated, he cannot be permitted to invoke the only defence available in terms of proviso to subSection (1) of Section 42 of the FEMA Act that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. In the reply filed to the show-cause notice by the appellant, no such specific plea has been taken.
We hold that no error has been committed by the adjudicating authority in finding that the appellant was also liable to be proceeded with for the contravention by the Company of which he became the Managing Director and for penalty therefor as prescribed for the contravention of Section 10(6) read with Sections 46 and 47 of the FEMA Act read with paragraphs A-10 and A-11 (Current Account Transaction) of the Foreign Exchange Manual 200304. The first appellate authority and the High Court justly affirmed the view so taken by the adjudicating authority.
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2020 (3) TMI 1101
Valuation - inclusion of warranty claims in assessable value - reverse charge mechanism - Section 66A of FA - Revenue neutrality - extended period of limitation - It was held that When the Overseas Distributor is establishing the network of Authorized Repairers for carrying out the warranty responsibility of the appellant, indeed, this will satisfy ‘customer care services’ provided on behalf of the client contained in Sub-Clause (iii) of the definition of ‘Business Auxiliary Service’, and would be taxable.
HELD THAT:- There are no reason to interfere with the impugned order - appeal dismissed.
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2020 (3) TMI 1100
Valuation - Franchise services - Whether bifurcating the amount of weekly gross sales into the payment of royalty (@ 8% thereof) and the payment towards Franchise Advertisement Fund (@ 4.5% thereof) takes the later value out of the ambit what is called as transaction value/the gross value? - It was held that The amount of weekly gross sales @ 4.5% but for franchise advertisement fund is nothing but the part of gross value of the contract for providing the franchise service and, hence, was equally taxable as 8.5% of the said weekly gross sales is taxable.
HELD THAT:- There are no reason to interfere with the impugned order(s) passed by the Tribunal - appeal dismissed.
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2020 (3) TMI 1099
Refund of service tax - rejection on the ground of time limitation - service tax paid on various activities, which were exempt from service tax in terms of Mega Exemption N/N. 25/2012-ST dated 20/06/2012 - HELD THAT:- Every refund claim arises on account of fact that the same was not required to be paid - Reference can be made to the Hon’ble Madras High Court decision in the case of ASSISTANT COMMISSIONER OF SERVICE TAX, CHENNAI VERSUS M/S NATARAJ AND VENKAT ASSOCIATES [2014 (5) TMI 179 - MADRAS HIGH COURT] laying down that the refund claim beyond the period of limitation provided under law is totally barred by limitation. Even the fact that the tax was paid under a mistake of law, cannot be adopted for grant of such refund.
There are no justifiable reasons to interfere in the impugned order of Commissioner (Appeals) - appeal dismissed - decided against appellant.
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2020 (3) TMI 1098
Club and Association Service - Levy of service tax - advance entrance/enrollment fee collected from prospective members - Mutuality of interest - HELD THAT:- The issue herein is squarely covered in favour of the appellant/assessee by Hon’ble Supreme Court in the case of STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT] and also by the Hon’ble Jharkhand High Court in the case of RANCHI CLUB LTD. VERSUS CHIEF COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX [2012 (6) TMI 636 - JHARKHAND HIGH COURT] where it was held that from 2005 onwards, the Finance Act of 1994 does not purport to levy service tax on members’ clubs in the incorporated form.
Thus, there being mutuality of interest between the club and its members, there is no transfer of ownership of the service - appeal allowed - decided in favor of appellant.
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2020 (3) TMI 1097
Maintainability of petition - non-compliance with the requirement of pre-deposit - Section 35F of the Central Excise Act, 1944 - HELD THAT:- Today, Mr. Jorgay Namka, learned counsel for the petitioner has submitted that the petitioner is not in a position to pay the requisite amount in terms of Section 35F of the Act - If that be the position, we have no alternative but to dismiss the IA.
Application dismissed.
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2020 (3) TMI 1096
Recovery of dues - sick company - Wrongful adjustment of sanctioned refund - demand of interest - relevant period starting from 19 March, 2017 (expiry of three months from the date of the order dated 20 December, 2016 passed by the Tribunal) till the date of payment of refund amount or not - HELD THAT:- It is not possible to accept this submission of the learned Authorized Representative of the Department. As noticed by the Commissioner (Appeals), the dues pertaining to the orders dated 18 October 2001 and 23 February 2001 confirming the demands, were not disclosed by the Department or the earlier management to the BIFR and the same were not considered in the scheme sanctioned by BIFR. The BIFR had also by order dated 22 May, 2002 protected the management from recovery of dues which were not disclosed by the old management or not provided for in the package approved by the BIFR.
It is not the case of the Department that the dues pertaining to the aforesaid two orders confirming the demands had been disclosed by the Department or the earlier management to the BIFR. The proceedings before the BIFR had not been assailed before any appellate forum.
Appeal dismissed.
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2020 (3) TMI 1095
Filing of the appeals before statutory authorities and recovery of dues under various laws in the situation of outburst of Corona Virus pandemic - HELD THAT:- This present scenario of outburst of deadly corona virus is very precarious and sensitive, as the lawyers and the staff rendering assistance to this Court and the Judges are vulnerable, thus in order to prevent such rampant of spread by taking preventive measures, I deem it appropriate to issue general directions to the departments concerned like the banks, financial institutions, Income tax authorities, authorities dealing with the erstwhile KVAT, GST, recovery of tax on motor vehicles and building tax to defer the recovery proceedings or coercive measures till 06.04.2020.
In order to overcome the apprehension that this general order may cause impediment or hindrance to persons who are willing to opt for the Amnesty Scheme, it is made clear that this order will not be an impediment for any of such defaulters to avail the Amnesty scheme as and when such scheme is promulgated or in vogue. It is also made clear that the borrowers of the bank, if want to pay off the dues of the bank, it will be open to them to abide by any of the RBI directives or any other directive which is likely to come into place de hors this order - Similarly, defaulters of GST, KVAT, Building tax, Motor Vehicles tax etc. who are willing to pay the demanded amount subject to certain conditions which the department would have fixed within their power to relax or otherwise, would not be bound by this order.
In cases wherein tax authorities are required to complete the assessment proceedings before 31.3.2020, they can be deferred subject to the order of this Court but it is made clear that the assessees would not raise the objection of limitation - The adjudicating authorities already seized of the proceedings and communicated for appearance on a particular date there is likelihood of the party may be handicapped in not approaching on a fixed date in view of the present situation. In such circumstance, the adjudicating authorities are directed not to pass any adverse order till 06.04.2020.
The Registry is directed to list all the matters pending in this regard batch-wise post 06.04.2020.
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2020 (3) TMI 1094
Principles of natural justice - opportunity to cross-examine denied - difference on account of certain inter-state transaction reflected in the return as well as the details available from the check post - presumption of certain facts - Section 114(g) of the Indian Evidence Act - HELD THAT:- Pith and substance of the facts revealed, which are not being mentioned again in order to avoid repetition would reveal that the petitioner had been afforded an opportunity to crossexamine the witnesses. In case the other evidence which has been sought are not produced, the petitioner can always derive the benefits of provisions of Section 114(g) of the Indian Evidence Act.
Provisions of Section 114(g) of the Indian Evidence Act enables the authority or the court to presume existence of certain facts. The petitioner can always take the benefit of such provisions at the relevant point of time by making submissions in an appropriate forum and competent authority but not through the process of this Court, as it appears to be a adoption of a dilatory tactics.
Petition dismissed.
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2020 (3) TMI 1093
Maintainability of petition - non-compliance with the condition of pre-deposit - non-application of mind - HELD THAT:- The Tribunal, after considering the records relating to assessment, passed Ext.P2 order dated 29.03.2010, wherein the Tribunal found that both, the contentions raised by the assessee and the arguments put forth by the Revenue, have not been considered by the authorities below - The Tribunal therefore remanded the matter solely for the purpose of giving the assessee and the Revenue an opportunity to reiterate their contentions with supporting evidences and to enable the assessing authority to pass a speaking order considering all the aspects.
A reading of Ext.P9 would show that the Fast Track Assessment Team, after narrating the factual sequences, only recorded the contentions of the assessee - The manner in which the Fast Track Assessment Team has passed Ext.P9 order is not justifiable. The remand as per Ext.P2 order by the Tribunal was for the sole requirement to consider and meet the objections raised by the petitioner. While the fact being so, the 3rd respondent-Fast Track Assessment Team could not have passed an order in the nature of Ext.P9, without answering the contentions raised by the petitioner. In such circumstances, Ext.P9 order is liable to be set aside.
The case is remitted to the 3rd respondent for reconsideration.
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2020 (3) TMI 1092
Levy of Interest u/s 24 (3) of TNVAT Act - incorrect availment of deferral for the assessment years 2001-02 and 2002-03 - adequate reasons for levy of interest given or not - HELD THAT:- This Court, in order to give an opportunity, by treating the impugned orders as show cause notices, directs the petitioner to submit the required documents to correlate the production figure before the authority / respondent, within a period of four weeks from the date of receipt of a copy of this order - The respondent shall consider the same and pass appropriate orders afresh.
Petition disposed off.
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2020 (3) TMI 1091
Principles of Natural Justice - Validity of assessment order - main ground of attack by the petitioner is that no opportunity was granted to the petitioner for production of documentary evidence before the authority for passing appropriate orders - HELD THAT:- Admittedly, the cause of action for issuing the pre-revision notices was on the basis of the proposal submitted by the Enforcement Wing Officials, pursuant to an inspection conducted in the place of business of the petitioner. When the petitioner submitted their objections to the pre-revision notices, the Assessing Officer has to independently adjudicate the matter and he shall not be influenced by the directions issued by the Enforcement Wing Officials. But he has not done so in this case.
Further, no reasonable opportunity was provided to the petitioner for production of necessary documentary evidence before the authority for passing appropriate orders, as per Section 27(2) of the TNVAT Act.
This Court is inclined to set-aside the assessment orders dated 29.10.2015 and are set-aside accordingly. The matters are restored to the file of the Assessing Officer / first respondent - petition allowed by way of remand.
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2020 (3) TMI 1090
Audit of the business operations of the petitioner - Section 64 (4) of the TNVAT Act - Whether the inspection done by the second respondent, who is below the rank of Commissioner is against the provisions of law? - HELD THAT:- Section 64 (4) of the Act empowers the Commissioner to order for audit of any registered dealers and such audit is required to be done by an Officer not below the rank of Deputy Commercial Tax Officer and such responsibility cannot be delegated to others or usurped by others - In the case on hand, the Joint Commissioner (CT) Enforcement I, who is subordinate to the Commissioner, has ordered for audit, which is against the provisions of the Act. Based on the same, the first respondent has passed the impugned assessment orders, which are as rightly contended by the learned counsel for the petitioner, liable to be set-aside.
This Court is inclined to set-aside the impugned assessment orders and remit the matters back to the authority, for passing orders afresh, after providing due opportunity to the petitioner, for production of necessary accounts as well as filing proper objections - Petition allowed by way of remand.
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2020 (3) TMI 1089
Money seized in search - seeking order or direction directing the 1st respondent to release and disburse to the petitioner, the amount withheld illegally - HELD THAT:- First respondent had earlier filed appeal before the Judicial First Class Magistrate Court, Pattambi under Section 451 of Cr.P.C and under section 132 of the Income Tax Act, 1961 for getting the custody of the amount seized by the 2nd respondent to the Income Tax Department, which was allowed by the learned Magistrate. It is also equally not in dispute, that aggrieved by the said order rendered by the learned Magistrate, the petitioner has preferred a Crl.Revision Petition which is now pending before the Sessions Court, Palakkad.
Since the legality and correctness of the said issue decided by the learned Magistrate in giving custody of the seized amount to the 2nd respondent is now pending consideration before the Sessions Court,even going by the admitted case of the petitioner, it is not right and proper for the petitioner to approach this Court with similar prayers so as to short circuit the hierarchy of remedies available thereunder.
In case if the petitioner has any grievances, it is for the petitioner to move the said Sessions Court for final orders. Even thereafter, in case if the petitioner has any legally justiciable grievances thereto, he certainly has various other remedies to challenge the same, including the option of filing an appropriate petition under section 482 of the Cr.P.C before this Court. The matter is pending before the Sessions Court and when further remedies are available for the petitioner, it is not right and proper for this Court to short circuit the said due process and make a “frog leap” by resorting to proceedings under Article 226 of the Constitution of India. Going by the facts and circumstances of this case, this Court is of the considered opinion that the other prayers in the writ petition including prayers no. 1 and 3, should be entertained by this Court on merits and it is not a fit case to exercise discretionary jurisdiction under Article 226 of the Constitution. In the light of these aspects, the petitioner is bereft of any merits and the same will stand dismissed.
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2020 (3) TMI 1088
Exemption from GST - Printing and supply of Text books and Printed Materials, Karnataka Kaipidi, Annual Reports, Receipt Books, Measurement Books and Log books to Government Departments not registered under GST Act and Government Departments registered under GST Act - Printing & supply of Answer booklets, Visiting cards, Letter heads, Forms, Covers, File wrappers, invitation cards, Scribbling pads, Rubber stamps to Government Departments not registered under GST Act and Government Departments registered under GST Act - Printing and supply of Annual Reports and Receipt Books to Autonomous bodies - Supply of Log Books to Autonomous bodies - Printing & supply of Text books/ Karnataka kaipidis/Karnataka gazettes & Economic Survey of Government of Karnataka to Public & recognized book stalls - Supply of waste paper to public - Supply of old Machinery as Scarp to public - Supply of stationary Articles to Government Departments not registered under GST Act and Government Departments registered under GST Act - Transportation service received by applicant from GTA to Applicant is the recipient - Transportation service received by applicant from service provider other than GTA and courier agency to Applicant is the recipient - Printing and supply of Law reports to Honourable High Court of Karnataka - Issue of NOC to public - Printing and supply of Bus tickets to BMTC.
Supply to Various Departments of Government of Karnataka - whether the instant activity of printing and supply of text books & printed material / Annual Reports / receipt books/ measurement books & log books to other departments of same Government of Karnataka, who have not obtained separate registration under the GST Act, amounts to supply in terms of Section 7(1)(a) of the CGST Act 2017 or not? - HELD THAT:- The applicant claims exemption for the above said activity under entry No.8 of the Notification No.12/2017-Central Tax (Rate) dated 28.06.2017. This entry exempts only the services provided by the State Government to another State Government and hence the said entry is not relevant to the instant issue.
Supply of Goods to Various Departments of Government of Karnataka - supply of printed material i.e. answer sheets/visiting cards/ letter heads/ forms/covers/file wrappers/invitation cards/ scribbling pads / rubber stamps; content is provided by any of the Department of Government of Karnataka; physical inputs including paper belong to the applicant - HELD THAT:- The impugned activity of printing and supply of Answer sheets/visiting cards/ letter heads/ forms/covers/file wrappers/invitation cards/ scribbling pads / rubber stamps to other Departments of same Government of Karnataka who have not obtained separate registration under the GST Act does not qualify as supply in terms of Section 7(1)(a) of the CGST Act 2017 - However, if the said supply is done to the other Departments of Government of Karnataka who have obtained separate registration under the GST Act, said transaction qualify as supply in terms of Section 7(1)(a) of the CGST Act 2017 and liable to tax under GST.
Supply of Service to Autonomous bodies - printing & supply of Annual Reports / Receipt Books respectively, to autonomous bodies i.e. BRTS Company, Hubli-Dharwad Karnataka Electricity Regulatory Commission, Chamundeshwari Electricity Supply Company, Power Company of Karnataka Limited, BESCOM / HESCOM / MESCOM / KPTCL, Udupi / Bellary Nagarabhivrudi Pradhikara, Higher Education Council; content is provided by autonomous bodies - HELD THAT:- The impugned supply is that of services, classified under SAC 9989 and attracts 12% GST, in terms of Sl.No.27 of Notification No.11/2017-Central Tax (Rate) dated 28.06.2017.
Supply of Goods to Autonomous bodies - Printing & supply of Log Books to autonomous bodies i.e. Karnataka Kolageri Abhivruddi mandali, Karnataka State Aids Prevention Society, Karnataka Vasathi Shikshana Samsthe, Karnataka Sarvajanika Arogya Samsthe - HELD THAT:- In the instant case, the applicant is engaged in supply of Log Books to autonomous bodies, where the content is not provided by the recipient but provided by any of the department of Government of Karnataka. The applicant supplies the Log Books itself out of the readily available stock and hence supply of the said items amounts to supply of goods - Log book is nothing but a register to maintain the details of movement of the vehicle; merits classification under Chapter Heading 4820 and gets covered under entry No.154 of Schedule III to Notification 01/2017-Central Tax (Rate) dated 28.06.2017 and thereby attracting GST A 18%.
Supply to Public & Recognised Book Stalls - printing & supply of Text books/ Karnataka kaipidis/Karnataka gazettes & Economic Survey of Government of Karnataka to Public & recognised book stalls - HELD THAT:- All the items in the instant issue, i.e. Text books/ Karnataka kaipidis/Karnataka gazettes & Economic Survey of Government of Karnataka, are nothing but printed books and merits classification under Chapter Heading 4901. Entry No.119 of Notification 02/2017-Central Tax (Rate) dated 28.06.2017 exempts the printed books i.e. goods falling under heading 4901. The impugned items are squarely covered under the said entry and hence are exempted.
Supply of waste paper etc. - supply of waste paper, old sweepings, old & obsolete forms and books, unusable articles as waste - HELD THAT:- In the instant case it could be inferred from the question that the applicant seeks advance ruling with regard to rate of GST applicable on the sale/ supply of waste paper. Waste & scrap paper is classified under heading 4707 and attract 5% GST.
Supply / sale of old machinery as scrap - supply of old machinery as scrap - HELD THAT:- In the instant case, the old printing machinery of ferrous material is intended to be sold/ supplied as scrap and the said old machinery, if sold as scrap, is considered as Ferrous Waste and Scrap. Thus the rate of GST applicable on the said Ferrous Waste and Scrap is 18% in terms of the aforesaid notification/entry number.
Supply of Stationery articles to Government Departments - pure agent services or not - HELD THAT:- In the instant case the applicant, being the part of Government of Karnataka, procures the required stationery and distributes the same to various departments, but does not procure any other services or goods or both for the supply / distribution of the stationery items and hence the applicant does not qualify to be a pure agent - the impugned activity of supply of stationary items to other Departments of same Government of Karnataka who have not obtained separate registration under the GST Act does not qualify as supply in terms of Section 7(1) (a) of the CGST Act 2017, as explained at para 10 (a) supra. However, if supply of stationary items is done to the other Departments of Government of Karnataka who have obtained separate registration under the GST Act, then the transaction qualify as supply in terms of Section 7(1)(a) of the CGST Act 2017 and liable to tax under GST.
Taxability of Transportation charges paid by the Applicant - whether they are liable to pay GST on the transportation charges paid to the service provider, in relation to transportation of the text books & other printed forms/PUC answer booklets? - The first situation i.e. the service provider is the GTA and also the applicant is receiver of the service of Transport of Goods by Road - HELD THAT:- In this case the applicant, being the receiver of the service, if falls under the specified 7 categories mentioned at column 4 of the Notification No. 13/2017 Central Tax (Rate) dated 28-06-2017, then the applicant is liable to pay GST on the service of GTA, under Reverse Charge Mechanism, in terms of the said Notification. The applicable rate of GST, on the said service is as per item (iii) of entry no 9 of the notification 11/2017 Central tax (Rate) dated 28/06/2017 as amended by the notification 20/2017 Central tax (Rate) dated 22/08/2017.
The applicant, in the second situation, if receives the service of transportation of goods [the text books & other printed forms/PUC answer booklets] by road from other than the GTA and Courier agency, such transportation service is exempted from payment of GST as per entry no. 18 of the notification 12/2017 Central Tax (Rate) dated 28/06/2017.
Whether they can deduct TDS on the transportation charges paid? - HELD THAT:- The applicant has to pay GST, under RCM, in the first situation and not required pay in the second situation. Therefore in either of the situation the applicant not paying the tax (GST) to the provider of the service and hence the question of deduction of TDS on the transportation charges paid does not arise.
Printing & Supply of “Indian Law Reports” to the Hon’ble High Court of Karnataka - HELD THAT:- In the instant case the applicant being a Government press, established by the Government of Karnataka, under the control and supervision of Primary & Secondary Education Secretariat and hence becomes part of Government of Karnataka. Applicant printing & supply the Indian Law Reports to the Hon’ble High Court of Karnataka, Bengaluru; content is provided by Hon’ble High Court of Karnataka; physical inputs including paper belong to the applicant. Therefore, in the instant activity, the principal supply is that of supply of printing service and transaction becomes supply of service - Therefore from the said entry it is observed that any service provided by the Government of Karnataka to business entity is excluded from exemption - thus, the printing & supply of Indian Law Reports to the Hon’ble High Court of Karnataka, Bengalure by the applicant is exempted om GST in terms of entry no 6 of the notification 12/2017 Central Tax (Rate) dated 28/06/2017.
Issuance of No Objection Certificate (NOC) to private persons, for change of name - HELD THAT:- The applicant being the Department of Government of Karnataka, issues the No Objection Certificate to the private individuals and collects an amount of ₹ 100/-. This activity of the applicant amounts to provision of service by the State Government to an individual. The services provided by the State Government, where the consideration for such service does not exceed five thousand rupees are exempted from GST, in terms of entry number 9 of the Notification No.12/2017 Central tax (Rate) dated 28/06/2017. Thus impugned activity of issuing NOC to the private individuals for the consideration of ₹ 100/- is exempted from GST.
Printing & Supply of Bus Tickets to BMTC, Bengaluru - HELD THAT:- In the instant case the applicant is involved in printing & supply of bus tickets; content is provided by the BMTC (recipient); physical inputs including paper belong to the applicant and hence the impugned activity amounts to supply of service, in terms of para 4 of the circular supra. The impugned supply is that of services, classified under SAC 9989 and attracts 12% GST, in terms of Sl.No.27 of Notification No.11/2017-Central Tax (Rate) dated 28.06.2017.
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2020 (3) TMI 1087
Filing of Form GST TRAN-1 - time limit for filing of the form - Petitioner has challenged the Rule 117 of the Central Goods and Services Tax Rules, 2017 as ultra-vires Sections 140(1), 140(2), 140(3) and 140(5) of the Central Goods and Services Act, 2017 to the extent that it prescribes a time limit for filing of TRAN-1 Form.
Challenge to the impugned Rule on the ground of it being ultravires of the parent statute - HELD THAT:- The time limit in Rule 117(1) is traceable to the rule-making power conferred in Section 164(2). The credit envisaged under Section 140(1) being a concession, it can be regulated by placing a time limit. Therefore, the time limit under Rule 117(1) is not ultra-vires of the Act - In view of the finding that the rule-making power exists for Rule 117 and traceable to Section 164, laying the Rule before the Parliament strengthen the case of the Respondents for supporting its validity.
Challenge on the ground of the Rule being unreasonable and violative of Article 14 of the Constitution on India - HELD THAT:- The GST Act deals with the generation and distribution of the revenue. The collected revenue is expended on various functions for which budgetary allocations are made and time limits are stipulated for the execution of various schemes. For fiscal planning, certainty regarding receipt and distribution of revenue is necessary. If relief is to be granted to the individual Petitioner overriding the time limit on equity, the perception of what is equitable will differ from authority to authority. This would lead to uncertainty. The operation of this complicated tax system will become unworkable. The time limit placed under the impugned rule being rooted in need to have certainty in fiscal management, we are of the opinion that equity jurisdiction ought not to be exercised - the time limit stipulated under Rule 117 is neither unreasonable or arbitrary nor violative of Article 14. This rule is in accordance with the purpose laid down in the Act.
Meaning of the phrase ‘technical difficulties’ under Rule 117(1A) and the role of the IT Redressal Cell and whether by creating categories discretion is being fettered - HELD THAT:- The categorization made by the Cell is not fettering the discretion but involving rules of evidence to determine whether a registered user encountered difficulties while submitting forms on the common portal. It is only if the registered user encountered technical difficulties on the common portal, that Rule 117(1A) comes into play - The input tax credit in the transitional provision is a concession to be utilised in a time-bound manner, and further extension is given if the GST Council finds that there was a technical difficulty at its end. If there is no technical difficulty on the common portal for the registered user, this additional concession is not extended. Whether to grant further concession as Rule 117(1A) will be determined from examination the system logs from the portal. Exercise of equity jurisdiction in some cases and not in other cases would cause an anomalous situation, particularly when a time limit has been placed in a taxing statute for achieving certainty and finality.
Relief to the petitioner - HELD THAT:- The time limit stipulated under Rule 117 of the Rules is not ultra vires of the Act. This Rule is traceable to the power conferred under section 164(2) of the Act. The time limit stipulated in Rule 117 is in consonance with the transitional nature of the enactment, and it is neither arbitrary nor unreasonable. Availment of input tax credit under section 140(1) is a concession attached with conditions of its exercise within the time limit. The IT Grievance Redressal Cell is set up by the GST Council to examine the existence of technical difficulties on the common portal. Sufficient guidance is provided in the definition of technical difficulty in Rule 117(1A). Examining the system log to ascertain the existence of technical difficulties on the common portal for registered persons, is not arbitrary, nor does it lead to a fettering of discretion by the authorities - Those registered persons who could not submit the declaration by the due date because of technical difficulties on the common portal as can be evidenced from the system logs are given an extension on the recommendation of the Council. Where no such evidence is forthcoming, no recommendation is made. In the Petitioner’s case, no such proof emerges and, therefore, no direction as sought for can be issued.
Petition dismissed.
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