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Showing 421 to 440 of 1482 Records
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2023 (6) TMI 1062
100% EOU - Permission for import and acquisition of the raw materials duty free, for use of the same in the manufacture of export products - mis-declaration - failure to declare whether the job worker declared by them for manufacture of intermediate product exist at the time declared manufacturing unit or not - N/N. 52/2003-Cus dated 31st March 2003 - HELD THAT:- With an objective to encourage exports, the Government of India has imposed lot of faith and has allowed import and acquisition of the raw materials duty free for use of the same in the manufacture of export products - The relevant notification No. 52/2003-Cus dated 31st March 2003 allowed import and acquisition of raw material without payment of any duty subject to certain undertakings and paper formalities.
In this case, the appellant has violate the faith imposed in them in as much as they did not even bother to check whether the job worker declared by them for manufacture of intermediate product exist at the time declared manufacturing unit or not. It also shows the carelessness on the part of the manufacturer in failing to ensure as that the duty free import or acquired are being sent to the right place which have been declared by them for manufacture of the intermediate products.
The declared job worker M/s. Heartwell Life Sciences was fully aware that the duty free raw materials sent by the appellant M/s. Sun Pharmaceuticals Industries Ltd. to them were not being put to the process at the declared address. If there was any difficulty in getting the duty free imported raw materials processed for the purpose of manufacture of intermediate products at the given address at plot no. A/1, 7304, GIDC Estate, Ankleshwar. They had enough time to come clean and inform the authorities that goods are being taken to M/s. Hemdeep Organics Pvt. Ltd. explaining the difficulties being faced by them to process the same on the declared address.
There have been some procedural lapses in this matter however, the impugned order-in-original has confirmed duty and imposed redemption fine as well as penalties under various sections of Customs and Central Excise Acts. From the findings given in the impugned order, no discussion has been made as to the effect whether the duty free imported raw materials which were supplied to the job worker who did not exist at the given address, were received back after the processing or not - duty, redemption fine and penal action can be confirmed only if it is established that duty paid on raw material which was sent to the job workers have not been received by the 100% EOU of the appellant.
Since the impugned orders are silent on this aspect, the matter need to be re-adjudicated - appeal disposed by way of remand.
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2023 (6) TMI 1061
Refund of Customs Duty - burden of duty is transferred to the buyer of the goods or not - principles of natural justice - HELD THAT:- It is an admitted fact that the Original Authority has granted the refund based on this Tribunal’s Judgment [2017 (3) TMI 700 - CESTAT HYDERABAD], without examining the same from the angle of unjust enrichment as provided under the Customs Act, 1962, against which the Department filed an Appeal before the Commissioner (Appeals). The Commissioner (Appeals) has come to the conclusion that the Appellants did not succeed in establishing their case against the presumption provided under Sec.28D and in consequence, the amount of refund granted has to be held erroneously granted to the Appellants which is liable to be recovered from them as per law.
The entire issue of whether they were entitled to exemption or not, has already been decided by this Tribunal and the only limited issue was the consequential refund available to them. The Original Authority has granted the same without examining the principle of unjust enrichment, whereas, the Appellate Authority has set aside the said Order holding that Appellants have not been able to cross the bar of unjust enrichment by proving that they have not passed on the incidence of duty.
In the interest of justice, the matter needs to be referred back to the Original Authority to go through the documents furnished by them and any other additional evidence or documents which he might require to come to the conclusion whether the principle of unjust enrichment is invokable in the instant case or otherwise. It is however to be noted that merely CA Certificate per se cannot be the sole ground for proving that they have not passed on the incidence of duty, if the sanctioning authority is not satisfied with the documents and he may also rely in addition on any other documents in order to come to the conclusion as to whether duty incidence has been passed on to customer or not in the facts of the case.
Appeal allowed by way of remand.
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2023 (6) TMI 1060
Recovery of erroneous refund, without challenging the order sanctioning the refund - Refund of Additional Duty of Customs (CVD) (excess duty paid) - import of Mobile phones falling under CTH 851712 90 - N/N. 12/2012-C.E. dated 17.03.2012 - whether the incidence of excess paid CVD amount has been borne by the appellants and such incidence has not been passed on to any other person? - principles of unjust enrichment - HELD THAT:- It is an admitted fact on record that re-assessment order passed in the disputed B/Es were not questioned or objected to by the department, which is evident from the fact that no appeals were preferred by the Revenue against the finally assessed B/Es. Thus, under such circumstances, the plea cannot be raised by Revenue that the re-assessment of B/Es are neither proper nor justified.
Considering the ratio of judgement of Hon’ble Supreme Court in the case of ITC [2019 (9) TMI 802 - SUPREME COURT], the Hon’ble Bombay High Court in the case of Dimension Data India P. Ltd. [2021 (1) TMI 1042 - BOMBAY HIGH COURT], in a writ petition filed under Article 226 of the Constitution of India, have held that if there is an error in the B/Es, the same can be rectified by amendment in terms of Section 149 of the Customs Act, 1962. In the case in hand, the B/Es were re-assessed by the department pursuant to the applications filed by the appellant under Sections 149 ibid and 154 ibid.
In the present case, the facts are not under dispute that the original orders dated 06.04.2019 and 26.02.2019 passed by the adjudicating authority in sanctioning the refunds in favour of the appellants were not challenged by Revenue before the Commissioner (Appeals). Therefore, with regard to those two adjudication orders, the matter has attained finality and the question of maintainability of the refund claims cannot be questioned by Revenue at a subsequent stage, by initiating proceedings under Section 28 ibid, for recovery of the refund amounts, considering the same as erroneous refund - under such circumstances, it cannot also be said that the grant of refund is erroneous and the same should be recovered by taking recourse to Section 28 ibid. Therefore, the impugned order, confirming the demand along with interest against the appellants under Section 28(1) ibid, read with Section 28(4) ibid, and Section 28AA cannot be sustained. Further, penalty imposed under Section 114A ibid, cannot also be sustained. Accordingly, the adjudged demands confirmed in the impugned order are set aside.
Whether the amount in dispute should be credited to the CWF in terms of sub-section (2) of Section 27 ibid, or should it be paid forthwith by crediting the refund amount in favour of appellants in terms of the proviso appended to sub-section (2) of Section 27 ibid.? - HELD THAT:- The provisions for grant of refund of duty are contained in Section 27 ibid. Sub-section (2) to Section 27 ibid, mandates that if the refund sanctioning authority is satisfied that the whole or part of the duty paid by the applicant is refundable, then he may make an order in crediting the refund amount to the CWF. On reading of the said statutory provision, it transpires that crediting the refund amount to the CWF is the rule and granting of the same as refund to applicant-assessee/importer is an exception, carved out in the proviso clause appended thereto.
Any amount debited to the P & L account has to be resulted in generation of revenue and accordingly, there lies no claim for recovery of this amount. On the other hand, without considering the same as expenses in the P & L account, if the same is reflected in the Balance Sheet as ‘Claims Receivable’ under the head ‘Current Assets: Loans and Advances’, then it has to be construed that the incidence of the duties/taxes have not been passed on to any other person and the incidence of the same has been borne by the assessee/importer. Under such circumstances only, the benefit of refunds should accrue to the person who has paid such duty/tax to the Government exchequer. To put it differently, it can be said that if an amount paid is not charged to the revenue and carried as an asset in the Balance Sheet, then there lies a claim of recovery from the person against whom these amounts have been considered as recoverable for the given value.
The matter should go back to the original authority for proper analysis of the books of accounts maintained by the appellants for a conclusion, as to whether the incidence of excess paid duty (claimed as refund) has been borne by the importer-appellants or transferred/passed on to any other person - the appeal is allowed by way of remand to the Original authority only for the limited purpose of examination of the applicability of doctrine of unjust enrichment - Appeal allowed by way of remand.
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2023 (6) TMI 1059
Seeking mandamus in relation to an ongoing investigation and seek compliance of sections 217 and 220 of The Companies Act, 2013 - jurisdiction to hear the present writ petition on the same cause of action - whether the present writ petition is barred by the principle of constructive res judicata? - HELD THAT:- The statutory position under section 212 of The Companies Act, 2013 and the decision of the Supreme Court in Rahul Modi [2019 (3) TMI 1411 - SUPREME COURT], discourage passing of orders which would be contrary to law.
The observations made with regard to the legitimate expectation of the petitioners for completion of the investigation within a reasonable time frame however remains. The SFIO is hence expected to act in terms of such legitimate expectation as well as the principles of equity and fair play with regard to completing the investigation within a reasonable time frame.
Application disposed off.
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2023 (6) TMI 1058
Contravention of Section 8(1) and 9(1)(a) of FERA by the Company - petitioner and other individuals working for the Company were made vicariously liable for the alleged contravention by the Company by virtue of Section 68 of the Act - HELD THAT:- As in view of order of the Special Director, ED, the court quashed the proceedings in respect of the company alone, (the sole petitioner before it).
As considering the status of the present case, which has been dropped by the complainant in respect of all the accused persons, the proceedings in Case pending before the Learned Metropolitan Magistrate, 11th Court, Calcutta under Sections 56 and 68 of the Foreign Exchange Regulation Act, 1973 is liable to be also quashed in respect of all the petitioners therein including the petitioner in this revision.
Revisional application is allowed.
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2023 (6) TMI 1057
Levy of Service Tax - leasing of the land of Kandla Port Trust - appellant claims that tax is not leviable on the ground that the oil companies to whom the bills were raised were having unauthorized occupation of the land as the lease contract was expired - SCN not issued under Section 73 (1) of FA - interest - penalty - HELD THAT:- The appellant have raised the ground of taxability on the service of renting of immovable property for the first time before this Tribunal. However this issue is neither in the show cause notice nor in the impugned order. The show cause notice was issued only for demand of interest and penalty and there is no demand of service tax. The appellant have admittedly paid the service tax without raising any protest. It is for this reason the Revenue has not demanded the service tax under Section 73 (1) of Finance Act, 1994.
Extended period of limitation - interest - HELD THAT:- As regard the issue whether the interest is recoverable and penalty was rightly imposed or otherwise, it is found that the show cause notice for recovery of interest and imposition of penalties was issued much after the normal period of limitation. It is undisputed fact that or malafide intention on the part of the appellant particularly being a trust of Government of India. Therefore, the invocation of the extended period is not legal and proper. The show cause notice was issued under the extended period is clearly time barred.
Penalty - HELD THAT:- As regard the penalty though the same is not imposable for the above reasoning of the show cause notice being time barred. Moreover, the penalty under section 78 can only be imposed when the demand of service tax is raised under section 73 (1) of the Finance Act, 1994 - In the present case there is no demand raised in the show cause notice or otherwise under Section 73 (1) of Finance Act, 1994. In this undisputed position also the penalty under section 78 is not sustainable.
In view of the judgment in PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [1995 (3) TMI 100 - SUPREME COURT] the show cause notice being time barred the impugned order is not sustainable. As it is stated above since the show cause notice has not raised the demand of service tax which appellant had admittedly paid, the issue of taxability is left open.
Appeal allowed.
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2023 (6) TMI 1056
Levy of Service Tax alongwith interest and penalties - Late Payment Charges collected - non-reversal of Cenvat credit under Rule 6 of Cenvat Credit Rules - Trading of Scrips on own account - reimbursement expenses - levy of penalties.
Late Payment charges - HELD THAT:- The decision of the Tribunal in the case of South Eastern Coalfields Ltd [2020 (12) TMI 912 - CESTAT NEW DELHI] cited by the Appellant is squarely applicable in this case where it was held that any penal charges recovered for non-performance of contractual obligation cannot be said to be towards rendition of declared service under Section 66E(e) of the Finance Act, 1994 - the demand confirmed in the impugned order on Late Payment Charges amounting to Rs 5,09,45,857/- is not sustainable.
Credit reversal under Rule 6 of Credit Rules - imposition of Penalty of Rs.34,443/- and Rs 1390/- - HELD THAT:- The Appellant has not contested the issue. They have deposited the tax amount along with interest before issue of the Notice - there was no case of fraud or willful suppression established in the findings by the adjudicating authority. Since the entire amount of taxalong with interest has been deposited well before the issuance of the Show Cause Notice, the Notice need not have been issued as per Section 73(3) of the Finance Act, 1994. Therefore, the penalties of Rs.34,443/- and 1390/- imposed in the impugned order is liable to be set aside - the same is set aside.
Demand of Service Tax of Rs.20,14,912/- along with interest and penalty under Rule 6 of Credit Rules - Appellant has engaged himself in trading of scrips on their own account, which is an exempted service - HELD THAT:- The reversal of proportional credit under Rule 6 has been settled by the Hon‟ble Telangana High Court in the case of M/S TIARA ADVERTISING VERSUS UNION OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE [2019 (10) TMI 27 - TELANGANA AND ANDHRA PRADESH HIGH COURT] wherein it has been held that the Department cannot raise the demand of the amount exceeding the proportionate reversal pertaining to the common input services. Rule 6(3) of the Credit Rules merely offers options to an output service provider who does not maintain separate accounts in relation to receipt, consumption and inventory of inputs/input services used for provision of output services which are chargeable to duty/tax as well as exempted services. If such options are not exercised by the service provider, the provision does not contemplate that the Service Tax authorities can choose one of the options on behalf of the service provider.
Thus, when common input services are used in dutiable and exempted services, the Appellant are entitled to reverse the proportional credit attributable to exempted services. Accordingly, the Appellant has rightly reversed the proportional credit along with interest. Hence, the Notice need not have been issued under Section 73(3) of the Finance Act, 1994.Accordingly, we hold that penalty equivalent to the amount paid is not imposable in this case, as there is no findings of any suppression of fact available in the impugned order.
Service tax demand of Rs.17,72,562/- on account of reimbursement of expenses from group companies on cost sharing basis - HELD THAT:- Reliance placed in the decision of Hon'ble Supreme Court in the case of Gujarat State Fertilizers Vs Commissioner of C.Ex. [2016 (12) TMI 103 - SUPREME COURT] and decision of the Tribunal in the case of Historic Resort Hotels Pvt. Ltd Vs CCE, Jaipur-II [2017 (9) TMI 1066 - CESTAT NEW DELHI], wherein it has been held that reimbursements claimed from various group companies on cost sharing basis cannot be said to be towards provision of any taxable service - This view has been taken by Tribunal Kolkata in the case of Haldiram Marketing Pvt Lts Vs Commissioner [2023 (2) TMI 783 - CESTAT NEW DELHI] - It is observed that the Ld. Commissioner has not given any finding with regard to the submissions of various decisions of the Tribunal in the impugned order - the demand on this issue is not sustainable.
Penalties on above demands - HELD THAT:- There is no fraud or collusion or suppression of fact involved in this case. Hence, the penalty is not imposable in this case. They place reliance on the decision of the Tribunal, New Delhi, in the case of Vandana Global Vs. Commissioner (Appeals), CGST, Raipur [2022 (12) TMI 450 - CESTAT NEW DELHI] - It is observed that there is no suppression of fact findings by the adjudicating authority in the impugned order. In view of the above decisions, it is held that the penalties imposed in the impugned orders are not sustainable.
Appeal allowed in part.
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2023 (6) TMI 1055
Cash Refund claim - Transition to GST regime - non-utilization of Cess due to transition provisions coming into force on implementation of GST from 1 July, 2017 - HELD THAT:- The learned Advocate states that subsequently sufficient decisions have clarified the position in their favour. He particularly seeks to rely on USV PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, DAMAN [2023 (2) TMI 230 - CESTAT AHMEDABAD].
As also on the decision of CESTAT-New Delhi in EMAMI CEMENT LIMITED, NU VISTA LIMITED VERSUS COMMISSIONER (APPEALS) , CGST, CENTRAL EXCISE, RAIPUR [2022 (3) TMI 1254 - CESTAT NEW DELHI]. He drew attention to para 4 & 5 of the decision of co-ordinate Bench of Ahmedabad to emphasize the refund cannot be denied because of particular situation as brought out in above decision due to which the assessee was unable to avail the higher education Cess on etc.
This Court is of the view, the matter stands covered by the above decisions cited by the learned Advocate - the issue is no longer res integra, the appellants are entitled to cash refund.
Appeal allowed.
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2023 (6) TMI 1054
Cancellation of GST registration of petitioner - non-speaking order - HELD THAT:- In the present case, the respondent authority has not disputed the fact that while issuing Show-cause notice for cancellation of Registration, necessary documents were not supplied and the notice is cryptic. Therefore, it was not possible for the petitioners to give reply to the said Show-cause notice. It is not in dispute that while passing the impugned order for cancellation of registration, the respondent authority has not assigned any reason and thus, the order passed by the respondent authority is not a speaking order - both Show-cause notice dated 24.11.2021 as well as the order dated 13.12.2021 deserve to be quashed and set aside.
Petition allowed.
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2023 (6) TMI 1053
Release of confiscated vehicle - section 130 of the Karnataka Goods and Services tax Act, 2017 - section 130 of the Karnataka Goods and Services tax Act, 2017 - HELD THAT:- The petitioner is the registered owner who has made over the subject vehicle to a transporter.
In similar circumstances, this court has granted leave to the concerned to file appropriate affidavit before the fifth respondent to place on record the circumstances that would belie any connivance by the petitioner in, or the petitioner's knowledge of, the misuse of the vehicle while calling upon the fifth respondent to pass suitable orders in the light of such affidavit.
This court is of the considered view that the petitioner must be granted liberty to file such affidavit before the fifth respondent and call upon the fifth respondent to pass suitable orders in accordance with law within the time frame - Petition disposed off.
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2023 (6) TMI 1052
Maintainability of Advance Ruling application - Classification of services - rate of GST - transportation of Goods through rail - amount from M/s XYZ (Foreign Company) as reimbursement without raising Invoices - treatment of GST ITC - raising of separate invoice for only Service charges for arrangement of such services - HELD THAT:- the applicant has not submitted any relevant documents, including Invoice, bills of supply, delivery challans, credit notes, debit notes, receipt vouchers, payment of vouchers, e-waybill and agreement copies etc. The issue on which advance ruling is sought, by the applicant appears to be hypothetical in nature, in the absence of relevant documents. Further, the applicant has not appeared for personal hearing and also declined another opportunity of personal hearing.
The applicant neither submitted sufficient documents nor showed any Inclination to defend his case. Therefore we are not inclined to pronounce the ruling In the absence of proper documents - the ruling can be pronounced on the basis of proper documents in support of questions sought and not on the basis of assumption and hypothetical situation hence the application is not maintainable.
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2023 (6) TMI 1051
Reversal of GST credit - Tax invoice issued by supplier and GST was paid by such supplier to government even though later commercial/ financial credit note is issued for part amount of invoice - requirement of reversal of ITC proportionately to the extent of financial/ commercial credit note issued by supplier.
HELD THAT:- The discount value shall not be included, as per 15 (3) (b), when such supply has already been affected and the discount is established as per terms of an agreement at or before the time of such supply and there is a link to the invoices of the discount given. Further, the ITC attributable to the discount is to be reversed by the recipient of the supply.
On examination of the transaction between the applicant and their supplier, M/s Gold Medal, it is found that the supplier is issuing a tax invoice on the supply of goods to the applicant and the applicant is taking ITC on the same. The applicant is issued commercial credit note or financial credit notes under various schemes such as turnover discount, quantity discount, additional scheme discount etc. The credit. notes issued are without GST and as per the applicant were issued only for accounting purpose as also given in undertaking by the supplier. The credit notes are duly accounted in the book of accounts of the applicant and also in their income tax returns - For the applicability of provisions of 15 (3) (b) there should be prior agreement and a link established with the relevant invoices of the discount given. No such co-relation between the credit notes issued by the supplier to the applicant is found except credit note mentioning the scheme and the goods for which the credit note is being given. In absence of such specific Information, the benefit of lessening the value of discount from the transaction value as per the provisions of 15 (3) (b) is not allowed and therefore the contention of the applicant is correct.
However, it is pertinent to note that the financial credit note shall not be used as a conduit to transfer input tax credit fraudulently, by raising an Invoice for a higher value to transfer ITC and then reducing the transaction value though financial credit note whereas the ITC transferred Is left unaltered. In case such a misutilisation of financial credit note is noticed at any point the same shall be liable for penalties under section 132(b).
The applicant is not required to reverse ITC, provided the dealer pays the value of the supply as reduced after adjusting the amount of post-sale discount in terms of financial/commercial credit notes received by him from the supplier of goods plus the amount of original tax charged by the supplier.
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2023 (6) TMI 1050
Levy of GST - export of pre-packaged and labelled rice upto 25 Kgs, to foreign buyer - supply of pre-packaged and labelled rice upto 25 Kgs, to exporter on “bill to ship to” basis i.e., bill to exporter and ship to customs port, exporter ultimately exports the rice to foreign buyer - supply of pre-packaged and labelled rice upto 25 Kgs, to the factory of exporter, exporter will export the rice.
HELD THAT:- In the instant case, the ultimate buyer is not present and the commodity is being pre-packed for an unknown ultimate buyer. The buyer from the applicant is re-selling the same to another buyer be it export or indigenous. This advance ruling authority agrees with the observation regarding the applicability of GST on pre-packaged and labelled' irrespective of the fact that whether the it is for domestic sale or exported outside the country.
GST is leviable on all the above three cases.
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2023 (6) TMI 1049
Valuation of supply of services - pure services or not - supply of manpower services to various departments under state government provided by the applicant i.e., APCOS - services of manpower supply services to various government authorities and Government entities provided by the applicant - exemption from GST, as provided under Sr. 3A of Notification Number 12/2017-Central Tax (Rate) New Delhi, dated 28th June, 2017.
Whether the services of manpower supply services to various Government authorities and Government entities provided by the applicant, ie., APCOS is eligible for exemption from GST, as per Notification Number 12/2017-Central Tax (Rate) New Delhi, dated 28th June, 2017 as amended vide notification 16/2021-Central tax (rate) dated 18-11-2021 being pure services, as per the definition and the services rendered thereby being listed in article 243G and 243W of Constitution as functions pertaining to panchayat and municipality? - HELD THAT:- It is pertinent to note that the eligibility of exemption is dependent on case-to-case basis and cannot be generalized. The exemption is available only in relation to services provided by way of any activity in relation to any function entrusted to a Panchayat under Article 243G of the Constitution of India or in relation to any function entrusted to a Municipality under Article 243W of the Constitution of India or not. The applicant had submitted only few work orders for verification and hence it is not feasible to pass an ruling on a generalised basis and hence it is being held at a principle level that any services provided in relation to any function entrusted to a panchayat under article 243G of Constitution of India or in relation to any function entrusted to a municipality under Article 243W of Constitution of India and the applicant be guided accordingly.
Value of the supply of services rendered by AOCOS as per section 15 of GST Act - HELD THAT:- The applicant had put forth the point of argument that the value of the service rendered by them is only limited to collection of 'welfare fund' and also contented that the employees are not recruited by the applicant directly and they are concerned only with the payroll management . They have provided the way for the processing of bills and the way the monies are transferred directly into the employees account directly from the state CFMS account - As per section 15 of the GST act, the total value of the supply includes all the above and 18% GST is leviable on the entire amount (total of remuneration +EPE +ESI + welfare fund) and not just welfare fund as contended by the applicant.
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2023 (6) TMI 1048
Seeking grant of pre-arrest bail - fraudulently encashing the undue input tax credit by showing exports of goods exported - territorial jurisdiction to entertain the present applicant seeking pre-arrest bail.
Maintainability of present application - admittedly proceedings of CGST have been initiated at Bhopal Commissionerate there and not in Delhi - HELD THAT:- Applicant has moved the present application on the ground that he being permanent resident of Delhi having no concern with the firm in question apprehends his possible arrest, therefore approached the court at Delhi.
Having gone through the judgment in Capt. Satish Kumar Sharma’s case [1990 (9) TMI 363 - DELHI HIGH COURT], without commenting much into the details of facts of that case, it would be rather important to note that in para 14 to 18 Hon’ble High Court referred to different judgments of High Courts laying down legal proposition that an application u/s 438 Cr.PC can be filed before the court of Session/High Court of that territorial jurisdiction where applicant resides and apprehends his arrest on accusation of having been committed beyond jurisdiction.
In the absence of any specific bar either u/s 438 Cr.PC or in any manner, a court can entertain any application for pre-arrest bail at the instance of an applicant who resides within territorial jurisdiction of that court and apprehends his arrest at another jurisdiction, where he intends to approach in accordance with law - this court has jurisdiction to entertain the present application.
Merits of the case - fraudulently encashing the undue input tax credit by showing exports of goods exported - HELD THAT:- Sr. Standing counsel on the other hand submits that even if the refund had not been withheld by custom authorities, there is no provision which prohibits the CGST from inquiring and claiming the refund when there is sufficient material in the investigation of the Department show that the input tax credit has been availed without actual supply of material. Ld. Sr. Standing counsel specifically referred to section 74 and 132(1)(e) of the Act.
Considering the totality of the circumstance, this court need not to go into much details of material which is otherwise under investigation of CGST Bhopal, merits of the matter can obviously be examined by courts of local jurisdiction.
However two aspects which certainly weigh this court to give protection to the accused - there was no tangible reason furnished in the application of his apprehension of being arrested. As such he submits that very application is without basis. However receiving of summons by the applicant from the Department, more particularly when his father has already arrested and the fact that applicant has no concern with the firm is admitted. - When the very initiation of action by the Department may not be in accordance with Rule 96 of the Act, though there is no denial to the fact that Department can still initiate the action in terms of section 74 of the Act as rightly pointed out by ld. Sr. Standing counsel but the fact that the applicant being not at all concerned with the said firm. - Therefore for the above said two reasons accused/ applicant is protected from possible arrest, subject to he joins the investigation with CGST Bhopal Commissionerate as well as of any succeeding dates for which he would be called upon.
Application disposed off.
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2023 (6) TMI 1047
Revision u/s 263 - period of limitation for passing order - reckoned from the date of the original assessment order or from the date of the reassessment order? - ITAT and High Court held that proceedings u/s 263 by the Commissioner as barred by limitation - HELD THAT:- The issues before the Commissioner while exercising the powers u/s 263 relate back to the original Assessment Order and, therefore, the limitation would start from the original Assessment Order and not from the Re-assessment Order.
We are fortified with our view by the decision of Alagendran Finance Ltd. [2007 (7) TMI 304 - SUPREME COURT] as held once an Order of Assessment is re-opened, the previous order of assessment will be held to be set aside and the whole proceedings would start afresh but the same would not mean that even when the subject matter of re-assessment is distinct and different, the entire proceedings of assessment would be deemed to have been re-opened. Meaning thereby, only in a case where the issues before the Commissioner at the time of exercising powers under Section 263 of the Act relate to the subject matter of re-assessment, the limitation would start from the date of Re-assessment Order.
If the subject matter of the re-assessment is distinct and different, in that case the relevant date for the purpose of determination of period of limitation for exercising powers under Section 263 of the Act would be the date of the original Assessment Order.
Thus no error has been committed by the ITAT or even the High Court in holding the proceedings under Section 263 of the Act by the Commissioner as barred by limitation.
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2023 (6) TMI 1046
Nature of expenses - Expenses incurred for replacement of membrane cells-II - revenue or capital expenditure - HELD THAT:- This Court is not inclined to interfere with the impugned judgment and order of the High Court treating it as revenue expense deleting the addition treating the same as capital expenditure by following the rule of consistency.
Nature of receipt under the subsidy scheme - subsidy in the form of Sales Tax Exemption as 'capital receipt' or 'revenue receipt - HELD THAT:- The special leave petitions are dismissed in the light of orders of this Court in Deputy Commissioner of Income Tax vs. Munjal Auto and Nirma Ltd. [2018 (5) TMI 1738 - SC ORDER]
The order in Munjal Auto relied upon judgment of this Court in Commissioner of Income Tax vs. M/s Chaphalkar Brothers [2017 (12) TMI 816 - SUPREME COURT].
This Court is also satisfied that the terms of the scheme in this case require the recipient of the benefit to set up a new unit or substantially expand the existing unit and utilize substantial portion of the amount retained (at least 50% of the subsidy) for the capital purposes. For these reasons, the impugned judgment does not call for interference. SLP dismissed.
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2023 (6) TMI 1045
Reopening of assessment u/s 147 - accommodation entries entry transactions - as decided by HC in light of the information which forms the basis of the initiation of the inquiry and in view of the fact that the transactions with Mridul Securities are admitted by the Petitioners, we do not find any case for interfering in the writ proceedings - Petitioners have not brought on record anything to suggest that the reassessment proceedings are being undertaken in an arbitrary manner - HELD THAT:- We are not inclined to interfere with the impugned judgment and hence, the special leave petitions are dismissed.
Pending application(s), if any, shall stand disposed of.
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2023 (6) TMI 1044
Exemption u/s 10(23C)(iv)/11/12 - whether activities of the respondent/assessee do not qualify for charitable purpose in view of the Proviso to Sec 2(15)? - HC [2022 (1) TMI 544 - DELHI HIGH COURT] granted approval to the petitioner under Section 10(23C)(iv) - HELD THAT:- This Court is of the opinion that the order impugned does not call for interference. Special Leave Petition is, accordingly, dismissed.
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2023 (6) TMI 1043
Depreciation on the WEGs for the year ending 31.03.2006 - Benefit of set off of brought forward losses - HC decided issues in favour of assessee - HELD THAT:- We are not inclined to interfere with the impugned judgment and order of the High Court.
The special leave petition is dismissed.
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9911796707
