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Showing 461 to 480 of 1466 Records
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2023 (1) TMI 1006
Disallowance being 5% of various administrative expense claimed by the Appellant - expenses were not supported by the documentary evidences - Appellant submits that the above expenses are incurred wholly and exclusively for business purposes; hence, the disallowance thereof made by the AO shall be deleted - HELD THAT:- We note that for the AY 2009-10 and 2010-11 the Tribunal had declined to interfere in the order passed by the CIT(A) on this issue. The relevant extract of the decision of the Tribunal in the case of the assessee for the Assessment Year 2010-11 [2018 (1) TMI 1706 - ITAT MUMBAI] wherein as noticed that while deciding the issue of ad–hoc disallowance of 5% out of various expenses, the Tribunal did not interfere in the matter and upheld the disallowance. Following the order of the Tribunal, we uphold the disallowance by dismissing the ground raised by the assessee.
Disallowance u/s 14A - Appellant had offered suo moto disallowance u/s 14A - As contended on behalf of the Appellant that amount of interest paid to partners on capital should not be taken into consideration while computing disallowance u/s 14A - HELD THAT:- During the course of hearing the Ld. Authorised Representative for the Appellant had placed on record computation sheet showing disallowance computed as per the order passed by CIT(A) and had submitted that substantial relief would be granted in case the directions issued by the CIT(A) to include only income yielding investments is implemented. Accordingly, the Assessing Officer is directed to re-compute disallowance under Section 14A of the Act read with Rule 8D(2)(ii)/(iii) of the Rules by taking into account only the investments which yielded exempt income during the previous year relevant to the Assessment Year 2014-15. Accordingly, Ground raised by the Appellant are disposed off with the aforesaid directions.
Disallowance of interest Expenses - According to AO interest pertained to non-business activity and was, therefore, not allowable as deduction u/s 37 - since interest amount was already disallowed under Section 14A read with Rule 8D(2)(ii) of the Rules, the Assessing Officer disallowed the balance - HELD THAT:- CIT(A) has returned the findings that the Appellant has not placed any evidence in support of its claim that the loans and advances were given for the purpose of business other than the general submission that the same were given to builders as advance for staff accommodation and future business.
Appellant had filed before the AO/CIT(A) the details of society charged paid for accommodation of staff and for file storage as well as salary certificate of the employees wherein value of accommodation granted to the employees has been offered to tax as perquisite - Further, the Appellant had also filed details of depreciation claimed in respect of property allotted to office staff along with the reasons for providing such accommodation - The finding returned by the CIT(A), to this extent, are contrary to material on record. Therefore, we remand this issue back to the file of the AO for denovo adjudication keeping in view our findings hereinabove and after giving the Appellant a reasonable opportunity of being heard. In view of the aforesaid, Ground No. 3 raised by the Appellant is allowed for statistical purposes.
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2023 (1) TMI 1005
Revision u/s 263 - agricultural income - HELD THAT:- When the AO passed assessment order after due enquiries and it is pertinent to note in the order to exercise jurisdiction u/s. 263 of the Act, the twin conditions are to be satisfied, namely that A.Y. 2016-17 assessment order is erroneous as well as prejudicial to the interest of Revenue. On an examination of impugned order, PCIT held that the AO is failed to make proper enquiry and directed that the assessment order should be framed as per the provisions of law after considering proper facts and circumstances of the assessee without giving definite, as to how the assessment order is erroneous, prejudicial to the interest of Revenue as well.
Lack of enquiry by the AO in the scrutiny proceedings - All the sale proceeds from the sale of agricultural produce were credited in the bank account of assessee and in support of which the assessee enclosed bank account in State Bank of India together with books of account. PCIT made no adverse remarks or reference to the reply submitted by the assessee in respect of transport expenses, proof of sale of agricultural produce and details of bank accounts. It is settled position that the PCIT mandated to give reasoning why the order of assessee is erroneous as well as prejudicial to the interest of Revenue.
PCIT did not give any reasons for non-consideration of reply submitted by the assessee and we note the PCIT simply directed the AO to frame assessment as per provisions of law, in our opinion, the order of PCIT is not justified in holding the assessment order is erroneous and prejudicial to the interest of Revenue as no nowhere in the impugned order it was held on specific point the assessment order is erroneous and prejudicial to the interest of Revenue. In the absence of which initiation of revision proceedings u/s. 263 fails and is set aside. Thus, the grounds raised by the assessee are allowed.
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2023 (1) TMI 1004
Unexplained Hawala Transactions - commission income from hawala business - incriminating documents found and seized which divulged that the assessee was engaged courier/transfer of money from one place/person to another place/person which was termed by revenue-authorities as “Hawala business” - HELD THAT:- Firstly, the revenue-authorities have loudly and unambiguously identified, found and understood the nature of activity done by assessee which is just a courier/transfer of money for earning a commission of Rs. 100/- to Rs. 200/- per lac. This activity remains same in all transactions. Secondly, all transactions have been retrieved/decoded from the same set of evidences, namely the same mobile phones. Thirdly, the details of all transactions as retrieved/decoded, such as names/mobile numbers of senders/receivers, serial numbers of currency notes, amount of money transacted in code words like “Kg”, “@”, “P”, “Peti”, etc. and in some cases the full amounts itself or in lacs or after omitting zeros, were exactly identical. Fourthly, the assessee had provided complete postal addresses, phone numbers and PANs of the persons of all transactions which is clearly evident from Para No. 10.2 and 10.3 of the assessment-order. However, the only difference is such that out of 79 transactions, the persons of 43 transactions did not turn up and persons of 36 transactions only responded.
It is highly probable that those persons have actually availed services of assessee for courier/transfer of money but when it comes to enquiry by income-tax department, they did not respond to avoid hassles of tax authorities. Be that as it may, the activity of assessee in all transactions is clearly manifest from the details of transactions retrieved/decoded from the mobile phones seized during search-proceeding, which is one single activity i.e. courier/transfer of money on behalf of clients with an objective to earn commission. Therefore, there is no reason to distinguish the two categories of transactions merely on the basis of responsive/non-responsive attitude of those persons. We feel that the taxation-authorities must assess the income of assessee in a proper and judicious manner so as to charge a proper amount of tax, neither a penny less nor a penny more. We also observe that there is no evidence on record brought by revenue, despite search-proceeding, that the impugned “unexplained transactions” of 43 persons were different in any manner or structure than the “explained transactions” of 36 persons. We observe that the various reasons cited in the beginning of this paragraph clearly reveal that all transactions were at par. Being so, we do not find any merit in the claim of revenue that the so-called “unexplained transactions” should be accorded a different treatment than the “explained transactions”.
We observe that the Ld. CIT(A) has given a careful thought to the facts of case and validly held that the assessee must have earned only commission of Rs. 36,71,832/- on all transactions of Rs. 15,29,93,132/-. Having said so, Ld. CIT(A) was justified in applying a commission-rate of Rs. 200/- per lac on 8,25,03,772/- which results in estimated commission-income of Rs. 1,65,007/- for 1 month and extrapolating the same for 12 months arriving at commission of Rs. 19,80,088/- for the whole year. Finally, Ld. CIT(A) has rightly ordered the Ld. AO to assess commission-income of Rs. 19,80,088/- and thereby granted a relief of Rs. 8,05,23,676/- (Rs. 8,25,03,764/- minus Rs. 19,80,088/-) to the assessee.
Addition on account of “explained-transactions” - We find that the Ld. CIT(A) has allowed telescoping benefit of the whole addition of Rs. 36,71,872/- (which of course includes the alleged addition of Rs. 16,91,744/-) against the cash balance of Rs. 98,09,930/- seized during search and surrendered by assessee but that ground is neither raised before us nor pleaded/argued during the course of hearing. Therefore, we are not called upon to adjudicate the same. Thus, Revenue’s Ground No. 2 is also devoid of merit.
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2023 (1) TMI 1003
Penalty levied u/s 271(1)(b) - undisclosed investment u/s 69A - ex parte assessment order - HELD THAT:- When the case was listed for hearing on 27/09/2022 and 10/10/2022, assessee filed a letter stating certain details have to be collected and complied and requested for one month adjournment. The same were being granted, however none appeared on behalf of the assessee even today. As pleaded in the Grounds of Appeal, the assessee has not filed any new materials before us.
Assessee being a chronicle defaulter from the assessment stage by passing an ex parte order at Assessment state, Penalty stage and even before the CIT(A). None appeared on behalf of the assessee or any Authorized Representative on behalf of the assessee before us. Though the assessee pleaded in its Grounds to file additional evidences, in spite of 2 opportunities the same is not filed by the assessee. We have no hesitation in confirming the penalty levied under section 271(1)(b) for non-compliance of notices before the AO. Thus the Grounds raised by the assessee does not hold merits and the same is dismissed. Appeal filed by the Assessee is dismissed.
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2023 (1) TMI 1002
Capital gain computation - date of acquisition of the right over the property by the assessee - benefit of indexation on the cost - Whether NFAC erred in denying the Appellant the benefit of indexation on the cost by holding that the capital gains earned by the Appellant from the transfer was not long term capital gains but short term capital gains? - HELD THAT:- As per the record submitted before us from the books of Bharat Diamond Bourse clearly indicates that assessee has been allotted office space and subsequently made several payments commencing from 31.08.1999 as per ledger extract. It is brought to our notice in the similar facts and grounds of appeal raised in appeal before Coordinate Bench in M/s. Suresh Brothers [2019 (10) TMI 1544 - ITAT MUMBAI]
Respectfully following the above said decision, since the issue is exactly similar and facts are also identical, we are of the view that date of acquisition of the property was to be reckoned from the date of the allotment i.e in the F.Y. 1998-99. Respectfully following the above decision, we allow the ground raised by the assessee.
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2023 (1) TMI 1001
Auction of goods - unpaid seller which had shipped Aluminium Scrap through shipping line - Seeking to permit the re-export of import container arrived at ICD Sabarmati as due to unavoidable circumstances - HELD THAT:- Considering the issue of right of the unpaid seller, we firstly need to direct the impleadment of the buyer Ghanshyan Metal Udyog, Survey No. 36/1, Kuha Road, Singarva, Ahmedabad 382430, Gujarat, India.
Let the amendment be carried out in the cause title. Issue Notice to the respondents making returnable on 20th January, 2023.
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2023 (1) TMI 1000
Seeking quashment of proceedings against Managing Director of the Company, one of the vendors of RFID e-seals - Tampered e-seals - it is alleged that the e-seals supplied by the Company were passing customs clearances even when it was not in a locked condition - liability of Managing Director of the Company in the alleged offence - HELD THAT:- The Company was in-charge of manufacture of RFID e-seals and tampering alert was in the control of the Company in which the 2nd petitioner is the Director. It becomes germane to notice the Circulars issued by Government of India in the Department of Revenue of the Central Board of Excise and Customs with regard to the export procedure and sealing of containerized cargo from time to time.
The communication was clear that the DRI has critically examined RFID e-seals supplied by M/s Leghorn Group, Italy and they have been found to be compromising in security requirements and was a serious issue and therefore, stopped all seals made by M/s Leghorn Group. Later, the crime come to be registered and a search is made in the office of the Company and at the time the seals are seized and were sent to their examination where it was found that since March 2018 the testing commenced and approximately 832 seals of the Company were faulty. The tamper status of the seals was covered up as the tamper alarm had been switched off.
The petitioners are alleged of compromising security of the container which contains what ought to be known to the Department, if not known and would passes muster, even if it is a narcotic drug, the menace of the threat looms large in that sector or that facet. Therefore, finding no merit in the contention that nothing has happened for the last 3 years and a co-ordinate Bench obliterating the proceedings against accused No.3 are of no assistance to the learned counsel appearing for the petitioners. The issue in the lis is shrouded with admissions and certain seriously disputed questions of fact, which will have to be thrashed out only in a full blown proceeding. It is rather surprising as to why the DRI has not proceeded further and filed its final report is a serious matter of the kind. It is for the DRI to conclude the investigation, if not already concluded and take the proceeding to its logical end.
Reference being made to the judgment of the Apex Court in the case of KAPTAN SINGH VERSUS THE STATE OF UTTAR PRADESH AND OTHERS [2021 (9) TMI 61 - SUPREME COURT] where it was held that the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C.
There are no merit to interfere or interdict the investigation, against the petitioners, as any interference would amount to putting a premium on the acts of the petitioners, for having compromised the security of the nation, which act sans countenance.
Petition dismissed.
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2023 (1) TMI 999
Levy of Anti-Dumping Duty - effective date of the notification -import of two consignments of Propylene Glycol from USA falling under CTH 29053200 - N/N. 117/2009-Cus., dated 13-10-2009 extending the N/N. 105/2004-Cus., dated 8-10-2004 - HELD THAT:- The issue involved in the present matter is whether Anti-dumping duty on Propylene Glycol, which was imposed by Notification No. 105/2004 dtd. 08.10.2004 and which came to an end on 08.10.2009 by virtue of Section 9A(5) of the Customs Act, 1962, can be demanded in respect of goods imported after 08.10.2009, when the same had not been extended before the said expiry on 08.10.2009 and whether the extension after the said expiry by Notification No. 117/2009 dtd. 13.10.2009 is valid in law.
The demand confirmed by the adjudicating authority is not sustainable - Appeal allowed.
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2023 (1) TMI 998
Classification of goods - 0.1 percent natural brassinolide fertiliser - Nature and scope of SCN under section 28 of Customs Act - power of proper officer to review the assessment under section 28 - Whether SCN under section 28 can be issued after the assessment is finalized (either through self assessment or through assessment by an officer) without first appealing against the assessment? - extended period of limitation - penalties.
Scope of remand - HELD THAT:- There is nothing in the order of remand to show that the Commissioner was required to examine Chapter Note 1(a) (2) of Chapter heading 3808 partly only to the extent of the submissions by the learned counsel. The submission of the learned counsel that the scope of the Tribunal’s order gets circumscribed by the appellant’s submissions during the proceedings cannot be accepted. The Commissioner was correct in examining whether the goods were preparations and such an examination was within the scope of the remand order.
Retail packages- scope - HELD THAT:- Both sides agree that retail packing is not defined in the tariff. Both sides refer to different Rules of the Legal Metrology Rules to interpret the term. According to the learned counsel for the appellant, the goods were not in packings meant for consumer and hence were not retail packings in terms of Rule 2(k) of the Legal Metrology Rules. According to the learned authorised representative for the Revenue, since only packages of more than 25 kg or 25 litres are excluded as per Rule 3 of the Legal Metrology Rules, the packages in question, being of up to 25 kg do qualify as consumer packings - while it is true that all packings over 25 kg are clearly excluded from the Legal Metrology Rules, it does not necessarily mean that all packings up to 25 kg are included from them and further that all such goods get covered by the definition of retail packings. There could be substances of much higher value, such as saffron or spices which will be sold even in wholesale in much smaller packings than 25 kg. Therefore, it needs to be seen if there is sufficient evidence on record to suggest that the goods which were imported were in retail packings - there are no sufficient evidence to hold so, if we exclude the survey on internet and e-commerce websites conducted by the Commissioner after concluding the hearing and before passing the impugned order which we already have found cannot be used against the appellant.
It is undisputed that the imported goods were brassinolide. Its strength is only 0.1% and the rest is not made up of impurities but other inert material. It has been stated in the statement of Smt. Rashmi Jain, that it should be mixed in the proportion of 1 gram in 10 litres water and sprayed which makes it clearly a preparation of Brassinolide. Even if the submission of the learned counsel that it is sold to other companies which prepare further preparations is considered, the imported goods will be intermediate preparations which are also squarely covered by CTH 3808 as per the explanatory notes to HSN 3808. The imported good was clearly a preparation of Brassinolide and was not excluded from CTH 3808 by Chapter note 1(a)(2) to Chapter 38.
Merits of classification - HELD THAT:- The brassinolide imported by the appellant is a plant growth regulator is no longer in dispute. Although it was described as ‘fertilizer’ in the invoice and documents of the Chinese supplier and also in the Bills of Entry by the appellant, after importing, the appellant sold the goods as ‘plant growth regulator’. Evidently, it is understood as plant growth regulator even in the trade. This is consistent with the expert opinion from IARI and the CBEC’s Circular based on which the SCN was issued. The appellant had not contested this fact before us or before this Tribunal in the earlier round of appeal.
The Chapter Note excludes specially defined chemicals from Chapter 38, except when they are put up in forms described in 3808 viz., as retail packings, as preparations and as articles. Of these, there is no dispute that the imported brassinolide were not articles which leaves with retail packings and preparations. We have already found that the imported brassinolide was a preparation. Since the brassinolide is in the form indicated in CTH 3808 by being preparation, it is not excluded by Chapter Note 1 (a) (2). Therefore, it falls under CTH 3808.
Extended period of limitation - HELD THAT:- As far as the description of the goods, quantity, etc. are concerned, the importer is bound to state the truth in the Bill of Entry. Thus, simply claiming a wrong classification or an ineligible exemption notification is not a mis-statement. Assessment, including self-assessment is a matter of considered judgment and remedies are available against them. While self-assessment may be modified by through re-assessment by the proper officer, both self-assessment and the assessment by the proper officer can be assailed in an appeal before the Commissioner (Appeals) or reviewed through an SCN under section 28. Therefore, any wrong classification or claim of an ineligible notification or wrong self-assessment of duty by an importer will not amount to mis-statement or suppression.
Extended period of limitation can be invoked in case of collusion or any willful mis-statement or suppression of facts. According to the Revenue, the appellant had wrongly declared the imported goods as fertilizers and they were also declared so in the invoices, packing lists, etc. supplied by the Chinese suppliers. The appellants were fully aware that the imported goods were plant growth regulators and were also selling the goods as plant growth regulators. Therefore, according to the Revenue, the appellant has willfully mis-stated the nature of the imported goods in the Bills of Entry as fertilizers and hence extended period of limitation was correctly invoked.
It is equally true that the assessing officers were also aware of the nature of the goods and had, on more than one occasion, called for the technical literature on the product which the appellants had provided. After studying the technical literature, the officers cleared the goods as fertilizers. Balancing these two facts on record, we do not find that sufficient grounds exist to invoke extended period of limitation in this case - the extended period of limitation could not have been invoked in the present case.
Penalties - HELD THAT:- As may be seen the ingredients necessary for imposing a penalty under section 114A are identical to the ingredients necessary to invoke extended period of limitation. The extended period of limitation cannot be invoked in these cases. Logically, the penalty under section 114A imposed on the appellant importers also cannot be sustained for the same reason - As far as the penalty under section 112 is concerned, it is imposable on any person whose acts or omissions render the goods liable to confiscation under section 111 or who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111. In these cases, goods were held liable for confiscation under section 111 (d) and (m) and consequently penalty was imposed under section 112.
As far as section 111(d) is concerned, there is nothing on record to show that there was any prohibition on import of the goods and so it does not apply to the present case. As far as 111(m) is concerned, there are no misdeclaration of the goods, although they deserved to be classified under CTH 3808 as “plant growth regulators” but all the documents including literature was made available to the officer during assessment. It is also found that section 111(m) does not apply. Consequently, penalties under section 112 cannot be sustained - The penalties under sections 114A and 112 imposed on the appellants are not sustainable and need to be set aside.
Appeal disposed off.
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2023 (1) TMI 997
Maintainability of application - Prohibitory period under Section 10A of the I&B Code - principal submission pressed by the Appellant is that as per Annexure 3 to the Debenture Subscription Agreement, clause 6, the date of default for repayment occurs on 31.08.2020, which was during the prohibitory period under Section 10A of the I&B Code - HELD THAT:- The submission of the learned counsel for the Appellant that as per Annexure-3 clause 6, the date of repayment of instalment is 31.08.2020 only is not acceptable. There being clear admission on behalf of the Appellant in default in payment of interest for the quarters ending September 2019 and December 2019, Appellant cannot be permitted to contend that default was committed only on 31.08.2020. Insofar as application being barred by 10A, benefit under Section 10A can be claimed by the application only when there is clear default during the prohibited period. The said benefit cannot be claimed by the Appellant by ignoring the admission of default which was prior to 25.03.2020. There being clear admission in the present case, in letter dated September 9, 2021 where the Corporate Debtor itself has admitted that he has failed to pay interest for the quarters ending September 2019 and December 2019 thus acknowledging that it has defaulted in servicing its obligations under the DSA.
The Adjudicating Authority has after considering all relevant facts and after finding debt and default has admitted the application. The fact that before this Tribunal, the Appellant has taken four adjournments for proposing OTS and get settle with the Bank itself indicate that debt and default is not disputed - Appeal dismissed.
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2023 (1) TMI 996
Validity, Viability and Feasibility of Resolution Plan - Liquidation Value - Section 30 (6) (c) and 31 of the I & B Code, 2016 - main grievance of the Appellant is that, the mere glance of the Resolution Plan, makes it clear that the Resolution Applicant, had hijacked the Substantial Assets of the Corporate Debtor, at a Price, substantially below the Liquidated Value of the Corporate Debtor, as defined in Regulation 2 (k) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations 2016.
HELD THAT:- In the present case, it is quite evident that the 2nd Respondent through a Resolution Plan, had offered Rs.50.70 Crores as Full and Final Settlement of all the Liabilities of the 1st Respondent / Corporate Debtor, which was duly approved with requisite majority of the Committee of Creditors, in its commercial wisdom, ofcourse, after numerous rounds of discussions and negotiations.
In this connection, this Tribunal, pertinently points out that in respect of the dues of the Workmen, initially only Rs.17 Lakhs was provided and at the behest of the Adjudicating Authority, the 2nd Respondent had revised the Resolution Plan and earmarked Rs. 34 Lakhs, towards the Workmen dues. Also that, a Sum of Rs.50.70 Crores was fully used in the payment of (a) CIRP Costs (b) the dues of the Financial Creditors and the Workmen. As such, no amount remains to be allotted in respect of the other Creditors. Therefore, the Liquidation Value, payable to the Operational Creditors, is Nil. Besides this, all the Creditors, had a significant haircut in the Corporate Insolvency Resolution Process of the 1st Respondent / Corporate Debtor.
Thus, keeping in mind the payment to all the Operational Creditors, is Nil, there is no aspect of discrimination between the Operational Creditors, in the considered opinion of this Tribunal. Further, when the ingredients of Section 30 (2) (b) of the I & B Code, 2016, are satisfied, the distribution is to be treated as Fair and Equitable one. After all, the Plea of the Fair and Equitable treatment is not between the different classes of Creditors, and the same is between the Operational Creditors, as a Class, as opined by this ‘Tribunal’.
In the instant case on hand, the 2nd Respondent, had undertaken to infuse approximately a Sum of Rs.20 Crores in the 1st Respondent / Corporate Debtor, when required for its revival, through its Group Companies, Promoters, Investors and Associates. Suffice it, for this Tribunal, to make a relevant mention that whether a certain Resolution Plan, leads to the maximisation of Value of the Assets or not is within the subjective realm of assessment of the Committee of Creditors, and the same cannot be a matter of enquiry - One cannot brush aside a vital fact that a Resolution Plan, as approved by the Committee of Creditors, in exercise of its subjective commercial wisdom, cannot be tinkered and tampered with, when the Resolution Plan, was approved with a Requisite Majority of 69.04%, after indulging in due discussions / deliberations, as regards the feasibility and viability of the Resolution Plan.
Be it noted, that the I & B Code, 2016, is not a Debt Enforcement Procedure, and the same cannot be used as a mechanism for the Recovery of Dues, for the Creditors. It is an axiomatic principle in Law, there is not rule for substituting any commercial term(s) of the Resolution Plan, approved by the Committee of Creditors, especially, in the teeth of the Resolution Plan, satisfying the requirements of the ingredients of the I & B Code, 2016.
An Adjudicating Authority (NCLT) or an Appellate Tribunal (NCLAT), cannot sit in an Appeal, to find out the Viability and Feasibility of Financial Matrix of such Resolution Plan, as opined by this Tribunal.
Thus, the Resolution Plan dated 07.01.2019, submitted by the 2nd Respondent / SPG Macrocosm Limited, through SPV Vision Textile (Resolution Applicant), was rightly approved by the Adjudicating Authority (Tribunal), which is free from any Legal Flaws, Resultantly, the instant Appeal sans merits and it fails.
Appeal dismissed.
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2023 (1) TMI 995
Business Support services - Branch Network Fee - whether the ‘Branch Network Fee’ received by the appellant under the agreements is taxable under ‘Business Support Service’? - time limitation - it was held by Tribunal that the proceedings are barred by limitation of time and hence, the appeal should succeed on the ground of limitation as well.
HELD THAT:- There are no reason to interfere in this Civil Appeal. The Civil Appeal is dismissed accordingly.
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2023 (1) TMI 994
Levy of Service Tax - activity of renting/leasing - HELD THAT:- Having gone through the relevant provisions of the Finance Act, 1994 with respect to the Service Tax and Section 65 (105) (zzzz) and Section 66D and taking into consideration the decision of this Court in the case of KRISHI UPAJ MANDI SAMITI, NEW MANDI YARD, ALWAR VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, ALWAR [2022 (2) TMI 1113 - SUPREME COURT], the Tribunal has rightly held that the appellant-Marketing Committee is liable to pay the service tax on activity of renting/leasing, which was carried out at the relevant time.
No interference of this Court is called for - Appeal dismissed.
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2023 (1) TMI 993
Sabka Vikas Legacy Dispute Resolution Scheme, 2019 - availability of rebate in arrears of tax - HELD THAT:- There is no challenge to the constitutionality of this Scheme.
Reliance is placed by counsel for the Revenue on a decision of Apex court in the case of M/S. YASHI CONSTRUCTIONS VERSUS UNION OF INDIA & ORS. [2022 (3) TMI 110 - SC ORDER] where it was held that The High Court has rightly refused to grant relief to the petitioner for extension of the period to make the deposit under the Scheme. It is a settled proposition of law that a person, who wants to avail the benefit of a particular Scheme has to abide by the terms and conditions of the Scheme scrupulously.
This Court sees no reason to take a different view than the one taken by Apex Court - Petition dismissed.
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2023 (1) TMI 992
Adjustment of excess service tax paid - ‘succeeding month or quarter’ used in Rule 6(4A) of Service Tax Rules, 1994 - whether the said term means immediate succeeding month/quarter or it can be anytime even after couple of years? - whether the assessee can claim any adjustment without complying with the conditions contained in Rule 6(4B) ibid? - HELD THAT:- A perusal of the aforesaid Rule 6(4A) would make it clear that the word used is succeeding month or quarter as the case may be. Succeeding month denotes the month, which succeeds the current month, i.e., the next month and dictionary meaning of succeeding means immediately following. The aforesaid clause (4A) do not uses the word ‘any’ before the words ‘succeeding month or quarter’ as the case may be. Rule 6(4B) provides that the adjustment shall be subject to this condition that the excess amount paid was not on account of taxability.
As per the law laid down by the Hon’ble Supreme Court in catena of decisions, in a taxing statute, it is the plain language of the provision that has to be preferred, where language is plain, unambiguous and is capable of determining a defined meaning. Purposive interpretation can be given only when there is an ambiguity in the statutory provision, which is not found in the present case. It cannot be said that this interpretation lead to absurdity as the procedure is prescribed in the statute itself.
While interpreting the taxing statute, the importance has to be given to the clear expression used therein and no intent can be examined in case of any unambiguity in the wordings of the Notification. There is no ambiguity in the wording of Rule 6(4A) ibid.
It is not that the appellant is not aware about the filing of refund claim of excess payment as the learned Commissioner has observed that in the year 2011 the appellant has applied for the refund of the excess payment made which was sanctioned by the Adjudicating Authority - thus, the filing of refund claim is not mandatory but then the adjustment under Rule 6(4A) ibid has to be done within a reasonable period if not in the immediate succeeding month or quarter.
Article 265 of the Constitution of India - HELD THAT:- The said Article provides that no tax shall be levied or collected except by authority of law. Here levy of tax is not disputed, what is disputed is the alleged excess payment by the Appellant in this era of self-assessment and since no documentary evidence has been placed on record except the arithmetical calculation, therefore it cannot be concluded that any extra payment of tax has been made by the Appellant.
There are no infirmity in the impugned order - appeal dismissed.
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2023 (1) TMI 991
Denial of benefit of Notification No. 12/03-ST dated 20.06.2003 - composite contract service - Inclusion of cost of material and service provider or not - HELD THAT:- Since the appellant have declared a material cost and the same was accepted by the service recipient, no doubt can be raised that the material cost declared in the invoice is incorrect unless it is proved contrary by the department. It is also not in dispute that the appellant have provided the composite contract to the service recipient which includes service and material. Therefore, the appellant is entitled for Notification No. 12/03-ST. The appellant have also argued that since they have provided the composite contract i.e. with material and they have discharged the VAT, their service is classifiable under works contract service.
Thus, it can be seen that as against the abatement of 67% available under Notification No. 15/04-ST and 01/06-ST, the appellant have taken the abatement ranging from 30% to 48%. Thus, despite the availability of abatement as per the above notification, the appellant have paid the service tax on much higher value, for this reason also the demand is absolutely unsustainable.
Appeal allowed.
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2023 (1) TMI 990
Levy of Service tax - Commercial Training or Coaching service - imparting educational programmes in the areas of finance, banking, insurance, accounting, law, management, information technology, arts, commerce, education, science and technology, at bachelor's and master's level on full time campus and distance learning modes - HELD THAT:- The issue in hand has already been considered by this Tribunal at various benches namely, Hyderabad, Delhi and Ahmadabad.
Reliance placed in the order of this Tribunal of Ahmadabad Bench in the appellant’s own branch of Vadodara, ICFAI BRANCH VADODARA VERSUS CCE & ST-VADODARA-I [2018 (8) TMI 556 - CESTAT AHMEDABAD] where it was held that There can not be any doubt as to the fact that the students successfully completing the educational programmes of the appellants are being selected for employment by various organisations, whereas the explanation as to what is vocational training institute indicates that the said exemption can be extended to any vocational training institute which imparts skills to enable the trainee to seek employment or undertake self-employment directly after such training or coaching.
Appeal allowed.
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2023 (1) TMI 989
Maintainability of appeal - non-compliance with Section 35F - Short payment of service tax - works contract service - HELD THAT:- There is controversy with regard to service of the show cause notice on the appellant-assessee. Further, as the Commissioner (Appeals) have dismissed the appeal for want of compliance of Section 35F, this ground could not be decided. Accordingly, this appeal is allowed by way of remand. The matter is remanded to the file of the Original Adjudicating Authority to pass a reasoned order, in accordance with law, after hearing the appellant-assessee.
Appeal allowed by way of remand.
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2023 (1) TMI 988
CENVAT Credit on inputs used in the manufacture of Sulphur Powder falling under sub-heading No. 2503 0090 of Central Excise Tariff Act-1985 - denial of credit on the ground that the Sulphur Powder is correctly classifiable under sub-heading No. 2503 0090 which attracts nil rate of duty - Revenue Neutrality - Applicability of Rule 16 of Central Excise Rules 2000 - HELD THAT:- The appellant is not disputing the classification however their contest is that once the duty on the finished goods was paid even though it attracts nil rate of duty, the cenvat credit cannot be denied - there is no dispute that the appellant have paid the excise duty on the finished goods which is more than the cenvat credit availed on the input used in the said finished goods, therefore, this is clear case of Revenue neutral, for this reason, demand cannot be sustained.
This similar issue has been considered by the Hon’ble Supreme Court in the case of COMMISSIONER OF C. EX., JAMSHEDPUR VERSUS JAMSHEDPUR BEVERAGES [2007 (4) TMI 264 - SC ORDER], wherein the Hon’ble Supreme Court held that excise duty paid and the Modvat credit availed were identical and therefore consequences of payment of excise duty after availing Modvat credit was revenue neutral.
In view of the above apex court judgement, as per the facts of the present case also, it is clear case of Revenue Neutrality, therefore, demand is not sustainable on this ground.
Applicability of Rule 16 of Central Excise Rules 2000 - HELD THAT:- Rule 16 clearly provides that an assessee can receive the duty paid goods in their factory and avail the cenvat credit and while clearing the same out of the factory, the same can be cleared on payment of excise duty. In this provision, the duty paid goods is deemed to be input in terms of Cenvat Credit Rules. The said goods can be cleared on payment of duty and the credit availed on the goods received by the assessee is allowed - In the present case also, the appellant have received the duty paid inputs, thereafter processed the same and cleared after processing on payment of duty on the transaction value. This would as permitted in terms of Rule 16 of Central Excise Rules 2000, therefore, the transaction in the present case is squarely covered by the Rule 16 of Rules.
The demand is not sustainable - Appeal allowed - decided in favor of appellant.
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2023 (1) TMI 987
Exemption from GST - sale of goods by the Canteen Stores Department to different Canteen Store Department situate outside the State of U.P. - Conditional nature of exemption or not - Eligibility for exemption Notification No.7037, dated 31.01.1985.
HELD THAT:- From the reading of Notification dated 31.01.1985, benefit has been extended not only to the Canteen Stores Department/ Military Canteens, but also to U.P. Govt. Employees’ Welfare Corporation. The State Government found that there were certain contradictions to its earlier notifications which were issued in the years 1977 and 1981 in regard to Khadi Evam Gramodyog and Canteen Stores Department/ Military Canteens.
The Circular dated 23rd July, 1987 has to be read in harmony with the Notification dated 31.01.1985, as the Notification of 1985 also provided exemptions of tax subject to certain conditions. Due to contradictions existing between the earlier notifications of the Government, Circular dated 23.07.1987 was issued on the direction of the State Government re-conciling the said fact. Though, the Circular of 23rd July, 1987 does not take note of the Notification dated 31.01.1985, but it mentions of the Notification dated 03.02.1981 which disallowed the exemptions under Section 8(2A) of CST.
The Apex Court in Paper Products Ltd. [[1999 (8) TMI 70 - SUPREME COURT]] and M/s Indra Industries [[2000 (1) TMI 44 - SUPREME COURT]] has already clarified that circulars by Taxing Authorities are not binding on the Assessee, but the department could not take plea that they are not binding upon the department.
The judgment and order passed by the Tribunal needs no interference of this Court and all the revisions stand dismissed.
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