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Showing 381 to 400 of 2056 Records
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2019 (7) TMI 1677
Valuation - inclusion of additional consideration of sales tax collected by them from the buyers and retained by them equivalent to the VAT-37B challan - issued as per the policy of Rajasthan Government under Rajasthan Investment Promotion Policy, 2010 - Section 4 (3) (d) of the Central Excise Act, 1944 - HELD THAT:- The matter is no longer res-integra as it has already been decided by this Tribunal in the case of M/S SHREE CEMENT LIMITED VERSUS COMMISSIONER (APPEALS) CENTRAL EXCISE & CENTRAL GOODS & SERVICE TAX [2019 (9) TMI 66 - CESTAT NEW DELHI] where it was held that there is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans.
Since, the facts of the case are similar to one which has already been decided by this Tribunal in the said final order, it is held that the order-in-appeal of the Commissioner (Appeals) is legally sustainable - appeal dismissed - decided against Revenue.
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2019 (7) TMI 1676
Provisional release of goods - Misdeclaration of imported goods - Section 110A of the Customs Act, 1962.
Whether the Commissioner (Appeals) was correct in entertaining the appeal against the letter issued by the Assistant Commissioner rejecting the provisional release of the goods without indicating in it that the decision to reject was taken by the Commissioner and that he was only conveying it? - HELD THAT:- The letter of the Assistant Commissioner nowhere indicates that the decision was taken by the Commissioner even though the copy of note sheet produced by the Ld. D.R. indicates so. Therefore, there was no infirmity in the order of the Commissioner (Appeals) entertaining the appeal against the order from the Assistant Commissioner.
Provisional release of goods - Whether the goods in question can be released to the respondent holding them as the owner of the goods under Section 110A of the Customs Act, 1962? - HELD THAT:- In the present case is concerned, it is undisputed that the invoices and bill of lading are in the name of the respondent. It is true that in their statement, the respondent denied that they are not the importers, which is now being disputed by the respondent’s Counsel. However, the key to decide who the owner of the goods in case of international trade is the bill of lading, which is the document of title. Since the Bill of Lading is in the name of the respondent, they are the owners of the goods. It does not matter whether they have already paid for the goods or have yet paid so. It also does not matter whether after import, they in turn, sells the goods to the indenters who placed orders on them. The goods have been imported by the respondent and the Bill of Lading is in their name and therefore, they are the owner of the goods - Therefore, the goods can be provisionally released to them under Section 110A of the Customs Act, 1962.
The impugned order of the first appellate authority is correct and calls for no interference - Appeal dismissed - decided against Revenue.
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2019 (7) TMI 1675
Reopening of assessment u/s 147 - estimating the income of the assessee firm at 25% on the advance received by the assessee from its customer - HELD THAT:- The words 'reason to believe' cannot mean that the Assessing Officer should have finally ascertained the facts by legal evidence. They only mean that he forms a belief from the examination he makes or from any information that he receives. If he discovers or finds or satisfies himself that the taxable income has escaped assessment, it would amount to saying that he has reason to believe that such income had escaped assessment. The justification for his belief is not to be judged from the standards of proof required for coming to a final decision. A belief though justified for the purpose of initiation of the proceedings under section 147, may ultimately stand altered after the hearing and while reaching the final conclusion on the basis of the intervening enquiry. At the stage where he finds a cause or justification to believe that such income has escaped assessment, the Assessing Officer is not required to base his belief on any final adjudication of the matter.
Thus it is evident that the AO has initiated the reassessment proceedings u/s 147/148 as per the provisions of the Act and all the conditions laid down for reopening has been fulfilled. Hence, this ground of the appellant fails and the ground of appeal is dismissed.
Estimation of income - As in compliance of the agreement no registered sale deed was executed in the year under consideration and the amount of total area sold was also reduced from 34720 to 18954 sq.ft for the total consideration of ₹ 11,76,70,000/- instead of the original amount of ₹ 16,73,50,400/-. Therefore, the Assessing Officer has wrongly determined the profit @25% of ₹ 13,53,76,000/- without any basis or material in position merely on the basis of presumption which is not sustainable in the eye of law. Even otherwise, the sale deeds in dispute was executed in financial year 2015-16 for which the assessee has offered its income. Therefore, the ld.First Appellate Authority has rightly deleted the addition in dispute by passing the detailed order mention above. Therefore, no interference is called for in the well-reasoned order passed by the ld.First Appellate Authority in deleting the addition in dispute and we dismiss the Revenue appeal and uphold the impugned order.
After going through the findings given by the ld.First Appellate Authority, which we have reproduced above, we fully agree with the same and uphold the impugned order for initiating the proceedings u/s.147 of the Income Tax Act and dismissed the appeal filed by the assessee.
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2019 (7) TMI 1674
Rejection of books of accounts - NP estimation - HELD THAT:- As noticed that the assessee is engaged in various sectors of business wherein the rate of net profit may not be at a similar line. We also notice that the assessee could not produce complete bills and vouchers and sector-wise books of accounts before the AO.
Looking to the voluminous nature of the business carried on by the assessee and considering the arguments advanced by both the sides, we restrict the net profit to 6% on the gross turnover of the assessee of ₹ 40,10,71,312/- as against 6.5% applied by the CIT(A) on gross receipts. We further make it clear that from the net profit of 6%, no further any depreciation shall be allowed.
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2019 (7) TMI 1673
Oppression and Mismanagement - validity of Board Meeting - validity of AGM - Mandatory signature to operate the Bank Account - alteration of composition of Board of Directors.
Whether the removal of the name of the first petitioner vide resolution passed in the board meeting held on August 22, 2016 who was sole signatory for operating the bank account of the first respondent-company, constitutes an act of oppression? - HELD THAT:- The petitioners were duly informed about the board meeting proposed to be held on August 22, 2016 through e-mail dated August 19, 2016 because as per the past practice, the company used to send the notice of the board meetings through e-mails. The first petitioner had attended the meeting and signed the incoming and outgoing register. However, he denied to have attended the board meeting, but did not deny the signatures put on the entry register. It is noted that the presence of the first petitioner at the registered office of the first respondent-company, where the board meeting was conducted is sufficient proof of the fact of his participation in the board meeting held on August 22, 2016, as claimed by the respondents. In the case on hand the resolution passed by the majority of the directors is only to regulate the procedure pertaining the signatories to the bank accounts of the first respondent-company, which in no way can said to be oppressive - this Tribunal is not inclined to interfere with the decision of the board by which any two of the directors have been authorised to operate the bank accounts of the first respondent-company. Accordingly, issue No. 1 is decided against the petitioners and in favour of the respondents.
Whether in the facts and circumstances of the case, this Tribunal can interfere with the management of the first respondent-company by directing to give proportionate representation to the shareholders on the board of the directors? - HELD THAT:- It is noted that the respondents have not pleaded anything on the issue under reference. However, in case of a private company, the articles of association can prescribe the method to appoint any and all directors. In case the articles are silent, the directors must be appointed by the shareholders. In the case on hand the articles of the first respondent-company provide that any person whether a member of the company or not, may be appointed as director of the company and no qualification by way of shareholding shall be required from any director. Therefore, in the absence of any provision in the articles of association or shareholders ? agreement, the first respondent-company cannot be forced to have a proportionate representation of the shareholders or their nominees on the board - the issue stands decided against the petitioners and in favour of the respondents.
Whether the alleged construction made on the Government land by the respondents without any approval of board and competent authorities constitutes an act of mismanagement? - The petitioners have not placed any evidence on record to prove the construction of buildings or superstructures as contended. Moreover, the act complain of is an isolated act, which need not be inquired into. Therefore, the issue stands decided against the petitioners and in favour of the respondents.
Whether writing-off the bad debts of ₹ 48,41,801 during the financial year 2017-18, by the respondents constitutes an act of mismanagement? - HELD THAT:- The petitioners would contend that during the financial year 2017-18, an amount of ₹ 48,41,801 has been written off as bad debts, while in the previous it was nil and the details as to the identity of the party, whether a related party or otherwise is not disclosed. The respondents would contend that bad debt written off is in the normal course of business and the tractions are absolutely with unrelated parties and since the recovery was not forthcoming, to reflect a true and fair view in the accounts, these sums were written off. It is noted that the decision of the board of directors to write off the bad debt is a commercial decision, which does not warrant any judicial interference - this issue also stands decided against the petitioners and in favour of the respondents.
The acts complained of are neither falling within the purview of oppression nor mismanagement - Petition dismissed.
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2019 (7) TMI 1672
Application for withdrawal of appeal - HELD THAT:- On consideration of the grounds mentioned in the application, leave to withdraw the appeal, as prayed for, is granted.
The application for withdrawal stands allowed and the appeal stands disposed of as withdrawn.
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2019 (7) TMI 1671
Refund of service tax paid - trust recognised under the provisions of Section 12(A)/ 12AA of the Income Tax Act - ground taken for refund in the application is that the appellant have got a building constructed for charitable purposes and they being Charitable Trust recognized under the provisions of the Income Tax Act, which entitles to exemption from service tax under clause 13(c) of Notification No.25/2012-ST dated 20.06.2012 - HELD THAT:- The appellant is in possession of the certificate of registration under Section 12A(a) read with Section 12AA of the Income Tax Act. The certificate is granted under Section 12A and the procedure for grant of certificate is given in Section 12AA of the Income Tax Act. Further, it is evident from the certificate of registration dated 08.12.1998, that the appellant is having the status of being registered under the provisions of Section 12AA of the Income Tax Act. Further, the appellant has also led evidence that they are continuing the status as the Charitable Trust/Organisation, as they have been granted exemption in their assessments for the financial years 2014-15 and 2015-16 by the Income Tax authorities which is applicable to Charitable Trust registered under Section 12AA, as is evident from the intimation under Section 143(1) of the Income Tax Act issued by the Income Tax Department.
The appellant is entitled to refund with interest as per Rules - Appeal allowed - decided in favor of appellant.
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2019 (7) TMI 1670
Classification of goods - Lays, Kurkure, Cheetos, Quaker Oats - whether taxable in the residual entry under the provisions of Pondicherry Value Added Tax Act, 2007? - Notification issued on 31.07.2013 viz., G.O.Ms.No.25/F2/2013 by the Government of Puducherry - HELD THAT:- It is undoubted and as rightly referred and relied upon by the Coordinate Bench of Madras High Court in the case of Pepsico [2009 (11) TMI 851 - MADRAS HIGH COURT] that in order to decide the questions like the one involved in the present case, the rule of interpretation is to adopt the common parlance test and the resort to residual entry cannot be made, unless by no conceivable process of reasoning, the commodities in question can be brought under any of the tariff items specified in the relevant Notification.
As far as the settled legal position about invoking the residual entry and common parlance test is concerned, not much of the serious debate is now left to be decided and the above two yardsticks for interpreting the relevant Notification are now well settled viz., to apply common parlance test and the resort to residual entry only if it is not possible to bring the commodity in question in the specified entry. The Special Entry like the Special Law overrides the General Entry or the General Law. "Generalia Specialibus Non Derogant", is a settled maxim for interpretation.
By the Dictionary meaning and common parlance test, again there is no iota of doubt that all broken grains or cereals including oats, when cooked with water or milk will result in a food item, which can be described as "Porridge". It is on the breakfast table for most of us. So, "Porridge" may be made of different grains and oats amongst them being one which in the present case, has been sold under the brand name of Quaker and the same cannot be ruled out of the definition of "Porridge", so as to fall in the Entry 99 of III Schedule of the taxable at 5% . Again, the contention of the learned counsel for the Revenue that it is to be taxed in the residual entry is devoid of any merit.
The items in question viz., Potato Chips, Salted in the brand name of Lays, Salty Kurkure and Cheetos are taxable as 'Savories' at the rate of 2 % in the Notification dated 31.07.2013 and 'Quaker Oats' are taxable at 5 % as 'Porridge' - Revision allowed.
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2019 (7) TMI 1669
CIRP process - Release the Intervener’s raw material/stock lying at the Corporate Debtor’s plant immediately - direction to Corporate Debtor/RP/COC to accept the Difference Amount and add the same to the admitted claim amount of the Intervener - main contention of the Resolution Professional is that the Intervener had to discharge its obligation, as committed vide Clause 11.2 of the said Agreement, before demanding the return of goods - HELD THAT:- There is no ambiguity that once the stock-auditor had earmarked and affirmed the ‘ownership’ of the Applicant, then, the ‘Explanation’ annexed to Section 18 IBC is to be applied in this case as well. As far as the basis for demanding ₹ 2.30 Crore, a calculation chart is available as an Annexure of a pleading wherein offered the details of expenses incurred for the month of May, June, July and August 2019 amounted to ₹ 3,57,87,366/- and total receipts on this account amounted to ₹ 1,34,60,644/-, thus the balance of ₹ 2,23,26,722/- is the amount for claim by the Resolution Professional.
The summum bonum is that whenever the issue of set off or cross- claims is to be settled the first step expected to be examined is the nexus between the two rival claims. As far the facts of the present case are concerned, the nexus between the goods supplied and expenditure directly incurred in respect of those very goods supplied can only be appropriate for adjustment against each other. Although the calculation is on record, as also referred supra, but both the sides are at liberty to verify the nexus and can revise the figures of cross-claims. Needless to mention again, to carry out the swapping of stock versus payment a direction is already incorporated in this Order.
The main objection of the Resolution Professional is that the expenditure incurred for protection of goods whether to be borne by intervener or to be treated as a CIRP cost. At this juncture, it is also worth to place on record that none of the party has made out a case that the goods in question be declared as essential goods or services. Therefore, it cannot be held that the intervener should not stop or terminate or suspend the supply of raw material.
Applicability of Section 18(1)(f) - HELD THAT:- The Intervener is required to reimburse to the Resolution Professional the Pre-CIRP cost incurred amounting to ₹2.30 Crores( apx.) being an expenditure agreed upon as per Clause 11.2 of the said Agreement. On one hand the said payment be transferred by the Intervener to the account of the Corporate Debtor, on the other hand, the Resolution Professional is hereby directed that the delivery of stock be executed by handing over to Intervener or its representative. Expenditure of transportation etc., if any, be borne by the Intervener. It appears that there should not be any misunderstanding among the parties about the impugned stock, because the same is claimed to have been earmarked by the stock auditor.
The instant application filed by the Intervener is partly allowed.
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2019 (7) TMI 1668
Grant of ad interim temporary injunction - Money decree for an unliquidated sum of damages - Whether the plaintiff is entitled to be secured for such a fraud that has been played on it - HELD THAT:- In various judgements, Supreme Court has held that Section 94 read with Order 39, Rule 1 is not exhaustive and circumstances may be present that are beyond the provisions. In such circumstances, the Courts have held that power may be exercised by the Civil Courts under Section 151 of the Code for the ends of justice and to prevent the abuse of the process of the Court - The MANOHAR LAL CHOPRA VERSUS BAHADUR RAO RAJA SETH HIRALAL [1961 (11) TMI 59 - SUPREME COURT] judgment clearly enunciates the ratio that Civil Courts have the power to fill in the loopholes/ gaps that may be there in the Code for the ends of justice. According to the above judgment, this power is inherent and is not stultified when it comes to delivering justice.
In rare and exceptional cases, Civil Courts may grant injunctions with regard to the procedural and substantial rights of the parties in fit cases for the ends of justice. The only exception is that the Civil Courts cannot in the guise of inherent powers available under Section 151 of the Code pass orders that are in conflict and are in contravention to the provisions of the Code.
In the present scenario, the petitioner has brought down the threshold required for the subjective satisfaction of this Court required under Rule 1(b) by prima facie proving a case of collusion and fraud by the defendants. Furthermore, the conduct of the defendants as established in the prima facie findings gives further credence to the threat and perception of the petitioner that the defendants shall alienate their property in such a manner that the fruits of the decree shall not be available to the petitioner. It is to be further noted that the claim of the plaintiff is not predicated on a claim of simpliciter damages and losses caused to him but specific sums of money that have been passed on in an illegal and fraudulent manner by the employee to the distributors. The reports of KPMG and BDO are based on a careful audit of the documents in relation to the transactions. Upon such audit, the exact figures of excess credit have been ascertained, and therefore, the claim of the plaintiff is of an ascertained sum of money that has been illegally and fraudulently siphoned off by the employee in favour of the distributors. Ergo, in my view this is a fit case for granting an ad interim injunction against the defendants, in the manner discussed hereinafter, to secure the claim of the plaintiff.
Thus, the petitioner has been able to prove a prima facie case of collusion and fraud by the respondents, the conduct of the respondents and the irreparable loss and injury that would be caused to the petitioner, the three tests for grant of ad interim temporary injunction are satisfied in the instant case, and accordingly, distributor no. 1 and distributor no. 2 are restrained from transferring and/or alienating and/or creating any third party interest in the properties.
In the commercial world as exists today, the citizens have a right to expect that the judiciary shall come to their rescue at the very first instance when a fraud is committed on them. The law cannot be so narrow minded that it shall wait for umpteen years to give relief to a plaintiff that approaches the court and prima facie proves that fraud has been committed on him. It is a well established principle that fraud unravels all and no man can be allowed to take advantage of such fraud - the High Court has a duty to use its inherent powers, in appropriate cases for the ends of justice, equity and good conscience. Furthermore, in the commercial world of today it is the duty of the High Court to protect the honest businessman against persons who use unscrupulous means to cheat such a businessman. Failure to do so, would amount to eroding the confidence of the citizens in the High Court.
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2019 (7) TMI 1667
Compounding of Offence - section 166 read with section 621A of the Companies Act, 1956 - applicants were not given an opportunity of hearing by the Registrar of Companies before rejection of GNL-1 - principles of natural justice - HELD THAT:- It is seen from the order at paragraph (i) in page No. 40, it was directed that the present applicant-company and its directors to file compounding applications before the Registrar of Companies, Hyderabad for various non-compliances/delayed compliances with regard to various provisions of the Companies Act. Subsequently, the applicants herein have filed the present compounding applications. The PCS representing the applicants pleaded for taking lenient view on the ground that this is the first offence committed by the company. The Registrar of Companies report also confirms the same being the first offence. Therefore, the company applications are allowed, accordingly this Bench is inclined to impose the fine for compounding the alleged violation.
The company is directed to remit the penalty from its accounts. The officers-in-default shall pay the penalty from their own resources. The applicants shall comply with the order within three weeks from the date on which the order is uploaded on the website of the National Company Law Tribunal. The company is directed to file a copy of this order along with the required form with the Registrar of Companies, Hyderabad, within the time prescribed.
Application disposed off.
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2019 (7) TMI 1666
Validity of assessment proceedings - time limitation - Section 31 of the Bihar Value Added Tax Act, 2005 - attachment of bank accounts - no scrutiny or assessment was carried out before the ‘due date’ within the meaning of the explanation attached to Section 24 of ‘the Act’ - HELD THAT:- For a conjoint reading of Section 31 and Section 27 would confirm that while liberty has been granted to the assessing authority to proceed in the matter of reassessment based on a departmental audit made under Section 26(3) of ‘the Act’, with 4 years of the ‘due date’, the outer limit for conclusion of such obligation is found in the 3rd proviso attached to Section 27 and the reason is because the omission or failure or non-disclosure has been treated equivalent to a non-filing of the return as manifest from the legislative intent. Having observed thus, there is no infirmity in so far as the issue of limitation raised by Mr. Ranjan is concerned and the proceedings are within time.
The assessing authority has completely failed on his discharge and which is confirmed from the order dated 23.10.2017 whereby proceeding has been mechanically initiated by the assessing authority on a simple consideration of the departmental audit objection and on receipt of the report.
Though Mr. Chiranjiva Ranjan advocates for putting a quietus to the matter on lapse but since the initiation is within the time frame and indulgence is invited on account of procedural irregularity in the proceeding, we are persuaded to remit the matter to the assessing authority, who shall consider the audit objection and proceed in the matter in accordance with law bearing in mind the legal position settled, within a maximum period of three months from the date of receipt/production of a copy of this judgment.
The assessment order dated 31.03.2018 together with the demand notice of the same date, impugned at Annexures 1 and 1/2 to the writ petition, along with the attachment notice dated 24.1.2019, impugned at Annexure 3, are quashed and set aside - Petition allowed.
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2019 (7) TMI 1665
TDS u/s 194I - Disallowance u/s 40(a)(ia) - short deduction of tds - default u/s 201 - HELD THAT:- Assessee’s case is squarely covered by the judgment of the Hon’ble Calcutta High Court in the case of CIT vs. S.K. Tekriwal [2012 (12) TMI 873 - CALCUTTA HIGH COURT] had held that in case of any shortfall due to any difference of opinion as to the taxability of any item or nature of payments falling under the various TDS provisions, the assessee can be declared to be the assessee in default u/s 201 of the Act but no disallowance can be made by invoking provisions of section 40a(ia).
The Hon’ble High Court of Calcutta observed that the provisions of section 40a(ia) have two limbs; one is where, inter alia, the assessee has to deduct tax and second where after deducting tax, inter alia, the assessee has to pay the same into government account. The Hon’ble High Court of Calcutta went to observe that there was nothing in the said section to treat, inter alia, the assessee as defaulter where there is a shortfall in deduction and further, section 40a(ia) refers only to the duty to deduct tax and pay to government account. Undisputedly, in the present appeal also, there is no allegation that the tax deducted was not paid into the government account and the only fault of the assessee is the failure on its part to deduct tax at the prescribed rate. This, as per the judgment of the Hon’ble High Court of Calcutta, does not attract disallowance u/s 40a(ia) - Decided in favour of assessee.
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2019 (7) TMI 1664
Clarification/ modification of the resolution plan - HELD THAT:- No such modification is competent by the NCLT Adjudicating Authority. Even otherwise no one has put in appearance in support of the application.
The application is wholly misconceived and the same is dismissed.
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2019 (7) TMI 1663
TP Adjustment - comparable selection - selecting good comparables to the assessee on several ground including the functional dissimilarity, non availability of segmental data and diversified activities besides high end use brand worth - HELD THAT:- Companies unrelated to service of export of data processing and back office support undertaken by the assessee need to be deselected from final list of comparability. Services rendered by the assessee are only back office operations falling in the category of ITES and not KPO.
eClerx is not a good comparable at all to the assessee. Apart from that no segmental information is also available. The reasoning given by the ld. DRP in respect of AY 2011-12 equally applies to the facts obtaining in this year also. We, therefore, find eClerx not a good comparable and have to be deleted from the list of comparables for benchmarking international transaction.
Exclusion of M/s Accentia Technologies and Infosys BPO on the ground that in respect of each comparable, certain extraordinary events had occurred during the previous periods which distorted the profitability thereby increasing the margin, cannot be characterized as unreasonable.
Rejection of comparable not on the ground of functional dissimilarity, but only because of a different accounting period - As gone through the financials of this CG Vak Software the income from software development product and services is separately mentioned and was also at page 26, the segment revenue and segment results are also provided. In these circumstances, we are of the considered opinion that in the absence of any finding that this company is functionally dissimilar, ld. TPO should have considered these figures to identify whether CG Vak Software is a suitable comparable with the assessee. We, therefore, direct ld. TPO to consider this entity for benchmarking the international transaction.
M/s Informed Technologies Ltd. and M/s Micro genetics Systems Ltd. Ld. TPO rejected the same on the ground that both the Companies sales are below ₹ 5 Crores - As relying on case of Chris Capital [2015 (4) TMI 949 - DELHI HIGH COURT]we hold that so long as a company is functionally similar to the assessee merely because it does not match with the turnover, it cannot be rejected. We, therefore, direct ld. TPO to include Informed Technologies Ltd. in the list of comparables.
Interest of credit period granted by the company under normal trade practices - HELD THAT:- We are of the considered opinion that if working capital adjustment is granted, then no separate adjustment or interest receivables is required. We are fortified in our decision by the decision in case of Kusum Healthcare P. Ltd.[2017 (4) TMI 1254 - DELHI HIGH COURT]
TPO/AO has erroneously interchanged operating profit/operating cost margin of the companies, namely, eClerx Services Ltd. and Omega Healthcare Management Services P. Ltd. and it requires rectification - HELD THAT:- Since it is not a part of adjudication but only a mistake that had crept in the order, we are of the opinion that the same could be rectified by the ld. TPO/AO. We, therefore, direct the same.
Deduction u/s 10A in respect of AEGSC(STP) Unit set up by the assessee during the financial year 2002-03 on the ground that the STP unit was set up after splitting up its existing business of FCE(EOU) Unit - HELD THAT:- We direct the learned AO to allow the deduction u/s 10A of the Act for the Asstt. Year 2010-11 in respect of AEGSC(STP) Unit set up by the assessee during the Financial Year 2002-03.
Grant of full credit to the assessee as claimed in the return - HELD THAT:- We are of the opinion that the ends of justice would be met by directing the ld. AO to verify the credit of TDS and allow the same to the assessee.
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2019 (7) TMI 1662
Addition of undisclosed stock - HELD THAT:- Admittedly, the assessee engaged itself in the business of export of cotton garments, fabrics, etc. The assessee filed the details of purchase invoices and the lorry details by which the same was transported. Export of goods is not in dispute. AO doubts the purchase alone. When the export is not in dispute, this Tribunal is of the considered opinion the assessee could not have exported the goods without any purchase.
Now coming to the contention of the Ld.DR that the assessee had furnished additional material and therefore there is violation of Rule 46A of the Income Tax Rules, a mere perusal of the order of the Ld.CIT(A) shows that no additional material was filed.
CIT(A) simply referred to the documents filed before the AO and observed that the documents submitted clearly proves goods under dispute has been received by the assessee and exported. It does not spoke anything about the additional material.
The details of invoice and the details of transport by lorry are available before the AO as well as Ld.CIT(A). Having furnished the details of the purchase invoice and the details of lorry before the Assessing Officer, this Tribunal is of the considered opinion the assessee has discharged its onus. Therefore the burden of proof shifts on the shoulders of the Revenue. The material available on record clearly establishes that there was purchase and export. CIT(A) has rightly deleted the addition made by the AO. - Appeal of the Revenue is dismissed.
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2019 (7) TMI 1661
Banking and other Financial Services - allegation that the branch did not pay full amount of service tax on its income on the impugned service - period from October 2004 to September 2008 - levy of penalty - HELD THAT:- Appellant have not discharged their liability of Service Tax on various incomes during the impugned period over which they have realized the Service Tax in some cases and have not realized the Service Tax in some other cases. The cum-tax value benefit may be allowed in those cases where Service Tax has not been collected by the appellant - This has also been clarified vide Para 5.7 of CBEC instruction No.341/18/2004-TRU (PT) dated 17.12.2014.
Levy of Penalty - Suppression of facts or not - HELD THAT:- There are no ingredient of suppression of facts, misstatement etc. with intent to evade payment of Service Tax. Hence the penalty imposed under Section 78 of the Finance Act, 1994 is set aside.
The matter is remanded for the limited purpose of re-computation of cum-tax value and verification of the related documents - Penalty is set aside - appeal allowed in part.
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2019 (7) TMI 1660
Issuance of SCN - Levy of penalty - entire Service Tax along with interest much before the issuance of the SCN - mining services - HELD THAT:- The Appellant has already paid the entire Service Tax along with interest much before the issuance of the SCN and hence there is no cause of action to issue the SCN by the department. Also, the ‘mining services’ was introduced in June 2007 and there was lot of confusion on the actual taxability of the said services. However, once it was ascertained by the department that tax is payable, the Appellant did not dispute its liability and made immediate attempt to pay the same with interest.
The issue at hand is no more res integra and is covered by the decision of the Tribunal in the case of COMMISSIONER OF SERVICE TAX, KOLKATA VERSUS RUHIT SHUKLA & ASSOCIATED [2007 (3) TMI 164 - CESTAT, KOLKATA] where it was held that There is no difference of opinion about realization of levy from the Respondent in view of incidence of the levy by specific letters of law. But discharge of tax liability was delayed which appears to be neither deliberate nor willful or for knowable breach of law. The levy was at the initial stage and subject to Judicial review by various High Court. It was certainly a matter of confusion by tax payers on various aspects of law at the infancy stage of enactment, the imposition of penalty is not called for.
The facts of the present case are squarely covered by the aforesaid decision of the Tribunal - the impugned orders are set aside to the extent of confirmation of penalty on the Appellants - Appeal allowed in part.
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2019 (7) TMI 1659
Validity of assessment u/s 153A - non obtaining prior approval of the Joint Commissioner of Income Tax as required as required u/s 153D - correctness of JCIT’s approval - HELD THAT:- As decided in GEETARANI PANDA, MANJUSMITA DASH VERSUS ACIT, CIRCLE-2 (2) , BHUBANESWAR. [2018 (7) TMI 1888 - ITAT CUTTACK] has taken into consideration the settled legal position on the very issue of sec. 153D approval in light of earlier provision sec. 158BG vis-a-vis sec. 153D (supra) to conclude that the JCIT is not to accord a mere mechanical approval but he has to apply his mind in order to ensure that the assessing authority conducts appropriate enquiry and investigation.
And also that there is no undue or irrelevant addition made in the assessment in issue. We also find that the tribunal’s leading decision in case of PCIT vs. Shreelekha Damani [2015 (8) TMI 1250 - ITAT MUMBAI] stands affirmed in hon'ble Bombay high court in [2018 (11) TMI 1563 - BOMBAY HIGH COURT].
We conclude in these facts and circumstances that the department has not proceeded to finalise the impugned assessment(s) in true light of the relevant mandatory provision sec. 153D of the Act mainly for the reason neither the Assessing Officer had sent anything more than the draft assessment order(s) nor the JCIT had an occasion to apply his mind to ensure the twin purpose of his statutory exercise (supra). We further make it clear that since the entire exercise was carried out from both the authorities’ end on the same date i.e. 28.03.2016 itself in absence all the corresponding records, the impugned approval does not satisfy the relevant parameters of law as settled in preceding case law. We therefore quash all the impugned assessment(s) framed u/s. 153A r.w.s. 143(3) for this precise reason alone. - Decided in favour of assessee.
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2019 (7) TMI 1658
Applicability of Doctrine of merger - Maintainability of appeal - power of Revenue to file an appeal before before Commissioner(Appeals) - Revision of orders by the Commissioner of Central Excise - training institute imparting vocational training - recovery of the erroneously sanctioned refund along with interest - time limitation - principles of unjust enrichment - HELD THAT:- The Commissioner(Appeals) has not examined the merits of the case, but had dismissed the Revenue’s appeal against the Deputy Commissioner’s order on the ground of maintainability. Such dismissal is also upheld by the Tribunal. During the relevant period section 84 of the Finance Act or any other legal provision did not provide for the Revenue to appeal to the Commissioner(Appeals) against an order passed by the Deputy Commissioner. There was only a legal provision for revision by the Commissioner within two years from the date of the order. As the issue was not examined by the learned Commissioner(Appeals) or by the Tribunal, but appeals were dismissed on the question of maintainability itself, the doctrine of merger does not apply in this case.
Merits of the case - refund claim - applicability of exemption notification - non-collection of service tax from the customers - time limitation for reversal of refund - HELD THAT:- The case law of Pasha Educational Training Inst. [2008 (12) TMI 80 - CESTAT, BANGALORE] that the exemption Notifications No.9/2003-ST as well as Notification No.24/2004-ST are available to the coaching and training imparted by the appellant. On merits the appellants are eligible for the exemption Notification. Also, IRDA (Licensing of Insurance Agents) Regulation, 2000 require the specific practical training imparted by the appellant for anyone to work as an agent. Therefore, by undertaking the training one would be able to seek employment or become self-employed. The coaching/training imparted by the appellant is vocational training in terms of the exemption Notifications.
Time Limitation - HELD THAT:- The appellant was not liable to pay Service Tax, but undisputedly they did so. The relevant period in the case is 19.12.2003 to 31.03.2006. The refund application was filed on 27.10.2006 which would mean that part of their refund claim was filed beyond the period of one year within which the refund claim must be filed. Part of the refund claim is within the period of limitation. Therefore, in our considered view it would meet ends of justice if refund is sanctioned within the period of limitation. Any claim filed beyond the period of limitation is not admissible in view of the statutory time limit.
Principles of unjust enrichment - HELD THAT:- The refund claim must still be sanctioned, but credited to consumer welfare fund instead of giving it to the appellant. However, the appellants must be given an adequate opportunity to establish whether they have passed on the burden of the Service Tax to their clients or otherwise.
Appeal allowed in part.
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