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Showing 501 to 520 of 1396 Records
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2021 (4) TMI 896
Nature of land sold - Treatment of sale amount of the land sold by the Assessee - Assessee during the Assessment proceedings, claimed long term capital gain qua sale of land, however, in the first appellate proceedings changed his stand and claimed that sale consideration received qua land sold during the year did not constitute a capital asset within the meaning of Sec 2(14) of the Act and therefore no capital gains income is chargeable to tax in respect of the said transfer of the land - HELD THAT:- As per section 2(14) if the land falls more than 8 km. from the local limits of any municipality or cantonment board to in item (a) and which has a population of more than ten lakh cannot be considered as capital asset. In the instant case, admittedly the land situated at an aerial distance of 9.2 km. and it is also admitted fact by the AO that the land sold by the Assessee was an agricultural land prior to sale and as per VRO, the agricultural activities were carried out in the said land upto the month of December 2014.
From Adangal extract obtained from the Mee-Bhumi portal, the land has been described as an agricultural land and is useful for cultivation. Further, from the certificate of the Addl. Assistant Engineer, APSPDCL, Gannavaram, it clearly reflects that agricultural power connection was also available in the name of the Assessee for the land in dispute. Even from the proceedings of the Sub-Collector, Nuzvid whereby imposed the penalty on the builder for conversion of agricultural land into non-agricultural land without obtaining permission as required u/sec. 3 of the Andhra Pradesh Agricultural Land (conversion for non-agricultural purposes) Act, 2006 and for non-payment of conversion fees, it goes to show that the land under dispute was agricultural land only. The aforesaid facts have been duly considered by the ld. Commissioner while admitting the claim of the Assessee and holding that the land under dispute was an agricultural land and therefore exempt u/sec. 2(14) of the Act and cannot be subjected to tax.
Addition on the ground that the Assessee could not substantiate with any evidence for carrying out the agricultural activities during the year on the land given for development and as per local enquiries conducted through ITI there was no agricultural activity in the said land during the last 2 or 3 years - Commissioner, on appeal, clearly held that the issue of whether the land owned by the Assessee at Kesarapalli village represented agricultural land and whether agricultural activities were carried out on the said land by the Assessee prior to transfer of the land during the year, has already been discussed and adjudicated earlier in its order and it was held that the said land constitute agricultural land and that the Assessee carried out agricultural activities in the said land prior to the transfer of the land during the year. The ld. Commissioner finally held that in view of the said finding of the fact, it is held that the action of the AO in not accepting the claim of agricultural income of the Assessee and treating the same as “income from other sources‟ is not sustainable. In our view, the ld. Commissioner thoroughly examined the issue and held that the land under dispute as agricultural land and the Assessee cultivated the land up to transfer of the same, therefore disallowance to the extent of ₹ 45,000/- as claimed by the Assessee as agricultural income, in any way, does not entail any interference . Consequently, we are inclined not to interfere with the decision of the ld. Commissioner on this issue as well.
Revenue appeal dismissed.
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2021 (4) TMI 895
Seeking restoration of the name of the Company in the register maintained by the Registrar of Companies - Section 252(1) & (3) of the Companies Act, 2013 - applicant is owner of land parcels - HELD THAT:- The main assets of the Appellant Company are the land parcels registered in its name, on the strength of which the Applicant is seeking restoration of the Appellant Company in the register of RoC. Here, it is worthwhile to refer to the Judgment of Hon'ble High Court of Gauhati in the matter of FELPACT PRIVATE LIMITED, ANANDA CHANDRA SHARMA VERSUS THE REGISTRAR OF COMPANIES, SHRI BHUPENDRA NATH, SMTI. SUCHITRA CHAKRABORTY, SMTI. HIRAMOTI DEVI, SMTI. SUKRITY BHAGWATI, SMTI. PRABHATY SARMA, SHRI SATYA NATH SARMA, SRI SAMBHU CHARAN BARMAN [2017 (6) TMI 1338 - GAUHATI HIGH COURT] where it was held that ownership of such a big estate is indicative of the fact that if there is no owner of any land, there is every likelihood of the said land will waste away by encroachment or otherwise or it will become a den for anti-social activities.
It is considered just and fair to allow restoration of the name of the Appellant Company in the Register of Companies maintained by RoC - Appeal is allowed subject to payment of costs of ₹ 25,000 only to the Ministry of Corporate Affairs and ₹ 25,000 to the Prime Minister's Relief Fund, the proof of which will be furnished by the Appellant to the Registry of this Tribunal within 07 days - application allowed.
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2021 (4) TMI 894
Refund of unutilized cenvat credit - service tax paid on various input services said to have been used for providing output services exported outside India - rejection of refund only on the ground of lack of nexus between the input services and the output services which is exported - N/N. 27/2012-CE (NT) dated 18/06/2012 read with Rule 5 of Cenvat Credit Rules, 2004 - period October 2015 to December 2015 - HELD THAT:- It has been consistently held by the Tribunal in various decisions cited supra wherein the Tribunal has taken a view that after the amendment of Rule 5 of Cenvat Credit Rules, 2004, there is no need for one to one correlation between the input services and the output services and moreover the Board Circular dated 16/03/2012 also clarified that no correlation is required because the intention of the Government is to allow refund to the exporters and the Circular/clarification issued on this subject have to be viewed with the objective of allowing the refund.
Department has not questioned the service tax paid on input services at the time when the cenvat credit was taken and as per the decision of this Tribunal in the case of K LINE SHIP MANAGEMENT INDIA PVT. LTD. VERSUS C.C.G.S.T., MUMBAI WEST [2018 (12) TMI 1481 - CESTAT MUMBAI], it has been held that the Department is not permitted to question the same at the time of claiming refund. Further in view of the clarification given by the Tax Research Unit of CBEC vide their letter dated 16/03/2012, the amended Rule 5 of Cenvat Credit Rules does not require correlation between the output service exported and the input service used in such output services exported. Further, as far as Rent-a-Cab service is concerned which the Department has disputed on the ground of exclusion, it is found that in the present case the appellant has availed the services of Rent-a-cab for the purpose of bringing and dropping the employees and this service has been used for providing the output service and the invoices have been produced by the appellant.
The appellant is entitled to refund of CENVAT credit - Appeal allowed - decided in favor of appellant.
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2021 (4) TMI 893
Maintainability of petition - estoppel from invoking provisions of Code again when they have already invoked provisions of Code by filing Company Petition earlier against Pro forma Respondent - HELD THAT:- By reading of the provisions of Section 60(5) of IBC Code, it is clear that the above provision enables parties to file Misc. Application(s) or proceedings by or against Corporate Debtor or Corporate Persons. It does not entitle a party to file a fresh Company Petition to initiate Group Insolvency as sought for in the instant Petition. Moreover, the Association has already moved against main Corporate Debtor by inter alia contending that it is the responsibility of Holding Company to get constructed promised houses as per Agreements through its alleged Subsidiary namely M/s. Ithaca Estates India Pvt. Ltd.
While initiating CIRP, one of the criteria is solvency of CD apart from debt and default in question. It is settled position of law that the provisions of the Code cannot be invoked for recovery of outstanding amount, and it cannot be misused to drop curtain on healthy organisation. The Project Skylark Ithaca is being developed by Ithaca Estates Private Limited (IEPL). Even in CIRP initiated in respect of Skylark Mansions Pvt. Ltd., the Resolution Plan proposed by Resolution Applicant is subject to contribution of ₹ 1250/- per sq. ft. only from each customer in order to complete Skylark Ithaca Project. Therefore, it shows, the Corporate Debtor is in a position to complete the project in question - Corporate Debtor, prima facie appears to be solvent Company, which cannot be subjected to insolvency proceedings and it should be given one more opportunity to fulfill its obligations to various Home Buyers, who have substantially contributed to get their flats.
The Petitioner has failed to make out even prima facie case so as to initiate CIRP as prayed for - Petition dismissed.
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2021 (4) TMI 892
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It is apparent on record that this Corporate Applicant had defaulted in making payments to Aesys S.P.A. Italy. In this case, the Corporate Applicant namely, M/s. Aesys Technologies India Private Limited has made a submission stating that they would like to recommend an IRP to take over the management of the affairs of the Corporate Applicant Company.
This Company application is required to be admitted u/s 10 of the Code - Application admitted.
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2021 (4) TMI 891
Seeking removal of name of the Operational Creditor from the Stakeholders Consultation Committee constituted under Regulation 31A of the IBBI (Liquidation Process) Regulations, 2016 - permission to modify entries in the list of stakeholders as filed before this Tribunal and reconstitute the Stakeholders' Consultation Committee pursuant to the withdrawal of the claim by M/s. Regenix Drugs Limited - HELD THAT:- Regulation 31(3) of the Liquidation Process Regulations, 2016 permits the Adjudicating Authority to allow revised list of stakeholders submitted by the Liquidator. Since one of the Operational Creditor viz. M/s. Regenix Drugs Limited has withdrawn its claim from the Liquidator, there arises a necessity for the Liquidator to modify the list of Stakeholders. In the circumstances, application deserves to be allowed.
Thus, the Liquidator as per Regulation 31(3) of the IBBI (Liquidation Process) Regulations, 2016, is permitted to revise the list of stakeholders of the Corporate Debtor. The Liquidator is directed to file the modified list of stakeholders before this Tribunal within a period of 7 days from the date of this order - application allowed.
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2021 (4) TMI 890
Liquidation of Corporate Debtor - Section 60(5) of Insolvency and Bankruptcy Code, 2016 r/w. Rule 11 of NCLT Rules, 2016 and Section 420 of the Companies Act, 2013 - HELD THAT:- It is highly improper to reverse the clock and the petitioner ought to have taken up this matter when the matter was admitted, before the Hon'ble National Company Law Appellate Tribunal (NCLAT), which is the Appellate Authority in the present situation.
Application dismissed.
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2021 (4) TMI 889
Reopening of assessment u/s 147 - notice issued u/s 148 on the completely incorrect address of the appellant - as per revenue notice was issued upon the assessee by electronic mode - addition made by the A.O under Sec.69A - HELD THAT:- Nothing has been placed on record which would reveal that the A.O had got the notice issued under Sec. 148, dated 21.03.2018 served through affixture at the last known address of the assessee - A.O had referred to an incorrect address of the assessee in the body of the assessment order itself militates against the aforesaid unsubstantiated claim of the A.O of having carried out a valid service of the notice issued under Sec. 148, dated 21.03.2018 through affixture at the last known address of the assessee. In the backdrop of the aforesaid facts, we are unable to persuade ourselves to subscribe to the validity of the service by affixture of the notice issued under Sec. 148, dated 21.03.2018, as had been claimed by the A.O in the assessment order.
Notice issued under Sec. 148 was sent to the assessee through ITBA on 21.03.2018 - Before us, the revenue had relied upon a letter received from the ITO- 27(2)(1), Mumbai, dated 21.01.2021 and therein claimed that the notice issued under Sec. 148 was served on the assessee on 21.03.2018 through ITBA. However, on a perusal of the screenshot of the income-tax portal of the assessee as had been placed on our record at Page 16 of the assessee‘s Paper Book (for short “APB‘), we find that the same though reveals that the notice under Sec. 148 was issued on 21.03.2018 [document ID No. ITBA/AST/S/148/2017- 18/1009359143(1)] however, the column referring to the date of service of the said notice is found to be blank. In fact, we are unable to comprehend that when the assessee, as claimed, did not have any e-mail address then, how the notice issued under Sec. 148 could have been served upon him by the department through electronic mode. Nothing has been brought on our record by the ld. D.R to dislodge the aforesaid claim of the assessee.
As the assessee had not filed his return of income for the year in question i.e A.Y 2011-12 thus, the occasion of furnishing of any e-mail address in such non-existent return of income doe not arise. Insofar the last income-tax return of the assessee is concerned, the same, as observed by us hereinabove was filed by the assessee for A.Y 2005-06 on 29.08.2005 - On a perusal of the return of income for A.Y 2005-06, we find that no e-mail address was therein made available by the assessee. Lastly, it is also not the case of the department that the assessee had ever made available its e-mail address either to the income-tax authority or to any person authorised by it.
We concur with the ld. A.R that the claim of the revenue that the notice issued under Sec. 148, dated 21.03.2018 was served upon the assessee by electronic mode being devoid of any force cannot be accepted. Accordingly, on the basis of our aforesaid deliberations, we are of a strong conviction that the notice issued under Sec.148, dated 21.03.2018 had also not been served by the department by electronic mode.
As pursuant to the notice issued by the A.O under Sec. 133(6), dated 11.07.2018 to the assessee‘s bank viz. Cosmos Cooperative Bank Ltd, Branch: Ghatkopar (W), Mumbai, the latter vide its letter dated 30.07.2018 had furnished with him the complete details of the assessee, viz. copy of the account opening form; copy of the KYC documents, PAN Card, of the assessee; copy of KYC documents, PAN Card and Passport of Mrs. Pankaj Bharti Shah (widow of the assessee); and the contact number of the assessee/widow of the assessee. In the backdrop of the aforesaid facts, we are unable to understand that now when the actual address of the assessee was available with the A.O from the aforesaid three sources, viz. (i) last income-tax return of the assessee i.e for A.Y. 2005-06; (ii) PAN database; and (iii) details furnished by the bank; then, what had stopped him from serving the notice issued under Sec. 148 at the said address. On the basis of the aforesaid facts, we are of a strong conviction that as the assessment framed by the A.O under Sec. 144 r.w.s 147, dated 10.11.2018 was not preceded by a service on the assessee of a notice issued under Sec. 148 thus, no valid assessment could have been framed by him. Accordingly, we are of the considered view that de hors service on the assessee of a notice issued under Sec.148 of the Act the assessment framed by the A.O under Sec. 144 r.w.s 147, dated 10.11.2018 cannot be sustained and is liable to be vacated - Decided in favour of assessee.
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2021 (4) TMI 888
Refund of service tax paid - development charges to SIPCOT Industrial Growth Centre, Perundurai - time limitation - HELD THAT:- A refund claim as per section 104 has to be filed within six months from the date when the Bill receives the assent of the President of India. Such assent was received on 31.3.2017. Thus, the refund claim ought to have been filed on or before 30.9.2017. In the present case, the refund claim is filed on 9.10.2017. Needless to say that when the service tax has been collected by SIPCOT, the appellant would require necessary documents from SIPCOT to file the refund claim - there was a confusion as to who has to file the refund claim and therefore this has led to the delay in filing the refund claim. In the decision cited by the ld. Counsel for appellant, the Tribunal has considered the issue and held that the time limit of one year prescribed in section 11B of Central Excise Act would apply.
In the case of Teknomec Vs. CGST & CE, Chennai [2019 (7) TMI 1416 - CESTAT CHENNAI], this Tribunal held that when claim has been filed within reasonable time from the date when appellant received intimation from SIPCOT, the refund has to be granted.
The rejection of refund claim is unsustainable - appeal allowed - decided in favor of appellant.
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2021 (4) TMI 887
Ex-parte order - No opportunity was granted to the assessee before the learned CIT Appeal - Reopening of assessment u/s 147 - denying Exemption U/s. 54F of the Income Tax Act, 1961 to the appellant in respect of Construction of Residential House - HELD THAT:- As laid down by the honorable Supreme Court in Catena of judgement that the purpose of tax administration is to collect just and fair tax from the citizen and it should not be an endeavor of the revenue authority to take benefit of ignorance of the citizen or absence of appellant in the proceedings. In the present case the individual assessee are before us who had plead that the absence of AR/assessee was on account of sufficient reasons.
In our considered opinion the interest of justice, requires that the matters be sent back to the file of the learned AO for a fresh adjudication on merit. We expect the learned AO to decide the matter expeditiously after issuing the sufficient notice to the assessee and he shall grant the assessee sufficient opportunity to produce the evidence/document as may be advised.
The assessee is also directed to present on each and every date fixed by the AO and shall not take undue date/adjournment in the matter. It is expected that the appeal shall be decided by the AO preferably within a period of 6 months from the receipt of this order. Appeals of the assessee are allowed for statistical purposes.
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2021 (4) TMI 886
Depreciation claim to assessee trust - Assessee claiming exemption under Section 11 - allowable on the fixed asset (the cost of the capital asset) acquired for charitable purposes as if so allowed it would amount to double deduction, which cannot be the intention of the legislature? - HELD THAT:- When the appeals are taken up for hearing, Mr.J.Narayanasamy, learned senior standing counsel appearing for the appellant – Revenue fairly submitted the substantial questions of law which has been framed in these appeals, have been answered against the Revenue by the Hon'ble Supreme Court in CIT Vs. Rajasthan and Gujarati Charitable Foundation [2017 (12) TMI 1067 - SUPREME COURT].
Following the judgment of the Hon'ble Supreme Court reported in RAJASTHAN AND GUJARATI CHARITABLE FOUNDATION POONA [2017 (12) TMI 1067 - SUPREME COURT] and NATIONAL COLLEGE COUNCIL, TEPPAKULAM, TIRUCHIRAPALLI. [2021 (4) TMI 469 - MADRAS HIGH COURT] and M/S. NATIONAL COLLEGE COUNCIL [2019 (8) TMI 1671 - MADRAS HIGH COURT]
Substantial question of law is answered against the revenue and the appeals are dismissed.
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2021 (4) TMI 885
Time of supply of goods - facility of supply of different types of Pre-Paid Instruments (PPI's) - supply of goods or supply of service - applicable rate of tax for such supply of goods or services - issue of PPIs by the Third party PPI issuers subject to GST - amount received by the Applicant from Third Party PPI - GST collection at the time of sale of goods or services on redemption of PPIs i.e., own and from Third Party - reatment of discount (the difference between Face value and Discounted Value) in the hands of issuer of PPI in case of third party PPIs - GST on difference Value.
HELD THAT:- Vouchers issued by the appellant are of the nature of actionable claims. Actionable claims, though included within the definition of goods under section 2 (52), have been included in schedule III as entry 6 and therefore cannot be treated either as supply of goods or supply of services. It follows that vouchers are not subject to levy of tax under the GST act - that there is an inherent contradiction in this argument, with the provision in sub sections (4) of section 12 and 13, that deal with determining the time of supply for goods and services respectively, both use the term 'voucher', and therefore indicate that voucher relate to both goods and services. If vouchers are to be treated as actionable claims, they are only goods and not services.
When a voucher is issued, though it is just a means of advance payment of consideration for a future supply, subsection (4) of section 12 and 13 determine the time of supply of the of the underlying good(s) or service(s). Voucher per se is neither a goods not a service. It is a means for payment of consideration - there is no need to determine whether voucher is an actionable claim to arrive at a conclusion that it is neither a goods nor a service.
Voucher by GST law is recognized as an instrument of consideration (non-monetary form) for future supply. Regarding classification of voucher, since voucher is only an instrument of consideration and not goods or services, the same is not classifiable separately but only the supply associated with the voucher is classifiable according to the nature of the goods or services supplied in exchange of the voucher earlier issued to the customer.
Thus, the time of supply of the gift vouchers / gift cards by the applicant to the customers shall be the date of issue of such vouchers and the applicable rate of tax is that applicable to that of the goods.
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2021 (4) TMI 884
Applicability of GST - generation and distribution of electricity - TANGEDCO LTD. & TANTRANSCO LTD. are two subsidiary companies of TNEB Ltd. (Holding company), and both are registered utilities for distribution and Transmission of Electricity respectively under the Electricity Act, 2003 - Applicability of GST on Deposit Contribution Works - Government Entity or not - Applicability of GST on Transmission Charges for Natural Gas - challenge to AAR decision.
HELD THAT:- Electricity duty is a tax on consumption or sale of electricity and is levied under entry 53 of Part-II State list of Schedule 7 of the Constitution. Therefore, clearly the constitution leaves out only tax on consumption for sale of electricity from the purview of GST. The contention of the appellant is therefore rejected.
TANGEDCO is indisputably a generation company and a distribution utility. TANTRANSCO on the other hand is a transmission utility. It is not the case of the appellant that the appellant company is providing transmission services to TANTRANSCO. The appellant contends that the various services extended to TANTRANSCO constitute distribution services. However, as already been stated above, distribution service can be supplied only to consumers in the area of supply of the licensee. Therefore, the services extended by TANGEDCO to TANTRANSCO cannot constitute distribution service.
Deployment of employees to TANSTRANSCO from the appellant - HELD THAT:- As a matter of fact it has been averred by the appellant that there are two modes, one in which the employees deputed from the appellant to TANTRANSCO are paid by TANTRANSCO and the expenses are debited in that company's books of accounts only. The second mode involves where salary payments are made by the appellant and the same is accounted as receivable from TANTRANSCO. This distinction was not made during the time of hearing before the AAR. In our view, the second mode where the salary payments etc., are paid by the appellant company to the employees deputed to TANTRANSCO (as they are still under the rolls of the appellant) and is booked as receivables from TANTRANSCO, there is no reason to interfere with the AAR's order - However, where the employees are paid by TANTRANSCO themselves, there is no service involved in our considered opinion as they are fully under the control of TANTRANSCO only and deemed to be employees of TANTRANSCO for all purposes.
The AAR's ruling is modified depending upon the factual matrix involved with respect to the particular employee, which will have to be determined by the assessing officer concerned - With respect to Deposit Contributory Works which include activities like shifting of service line, etc., we do not find any compelling reasons to differ with the ruling pronounced by the AAR.
Appeal disposed off.
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2021 (4) TMI 883
Exemption form CGST - Pure services or not - Services of water supply and sewerage schemes to urban and rural beneficiaries by TWAD Board - conducting Geological surveying and testing (Pure Services) to identify the water potentiality - Governmental Authority or not - exemption from CGST under SI.No.3 of the Notifications No. 12/2017 CT(Rate) dated 28.06.2017 as amended and exempted from SGST under SI.No.3 of the G.O(Ms) No.73 dated 29.06.2017 No.II/CTR/532(d-15)/2017 as amended.
HELD THAT:- The service of testing is being provided by the applicant which is a Government authority to (i) Local bodies, (ii) Government departments and (iii) contractors undertaking the projects executed by TWAD. It is seen from the copies of documents submitted by the applicant vide their letter dt. 15.02.2021 namely Format:C-IlI- Collection of steel samples. Format: C-I -collection of PVC Pipe samples that the tests have been conducted by the applicant to the individual contractors, on payment of the fixed fee towards charges of testing. Thus, it is clear that the applicant is the service provider and the service is provided to both governmental and non-governmental agencies. The services rendered to the contractors, though done as per the contract conditions, at the insistence of TWAD, the same cannot be termed as services provided to Government/Local authority because these tests are done by TWAD for the individual contractors in fulfillment of his contractual obligations for a specific charge. This proves that testing is a service done by the provider viz., TWAD to the receiver, any individual contractor for a consideration which is the fee charged. Hence the service so rendered by TWAD to their contractors is not exempted by the entry at SI.No. 3 above as the services are not provided to the class of service receivers specified in the said entry.
The functions entrusted are clearly mentioned in the schedules and only those activities fall under the functions entrusted to Panchayat/ Municipality. The exemption entry under consideration exempts pure services by way of any activity in relation to any of the functions listed above when provided to the said class of service receivers. The services rendered by the Applicant which is the subject matter of the current proceedings, namely quality testing of materials used in the turnkey contracts is undertaken to assure the quality of materials used in the turnkey projects to maintain the international standards required of a project. It is seen that this is an independent activity and is not in relation to activities listed in the Eleventh and Twelfth Schedule of the Constitution - the word used in the notification is 'Provided' and in the case at hand, without doubt the applicant provides the testing service only to the Contractor, for fulfilling his contractual obligations.
In respect of geophysical survey tests and reports, the applicant conducts the survey and reports on the nature of the site. The applicant has stated that they have not undertaken this service to 'Private agencies so far'. Further from the documents submitted it is seen that such survey has been done by the applicant to the Local Panchayat body of Soolalgiri, on their request to assess the geophysical nature of the land and availability of water. The Local authorities are constitutionally entrusted with the function of 'Water Supply' and TWAD has stated that they undertake the geophysical Investigations and provide the Local Authorities 'survey sketch' of the site.
The services provided by the applicant, namely, Quality material testing works is not exempted from Goods and Services Tax in terms of entry no.3 of the Notification 12/2017- Central Tax (rate) dated 28.06.2017 as amended - The service of Geophysical survey investigation is exempted from Goods and service Tax terms of entry no.3 of the Notification 12/2017- Central Tax (rate) dated 28.06.2017 subject to conditions stated.
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2021 (4) TMI 882
Input tax credit of GST paid - goods and services for laying of transfer pipeline for transporting Propane/Butane from Jetty to the Terminal - goods and services for construction of refrigerated storage tank at Terminal - goods and services for construction of Fire Water reservoir which is a part of firefighting system - goods and services used for foundation and structural support for such reservoir.
HELD THAT:- The construction of Refrigerated Storage Tanks and Fire Water Tanks are undertaken by the vendors of the applicant as Works Contract’. The vendors as per the Purchase Orders are to undertake the construction as an EPC and is to handover after successful demonstration of Performance Guarantee (PG) parameter. In respect of ‘Pile foundation works’ for the project site, it is seen that the entire work is undertaken by the vendor as Works Contract’ as the scope of work includes the entire spectra of activity from Mobilisation to loadtest. The civil & structural works for CCPL is again executed as Works Contract - The applicant sources Pipes on their own account for getting it laid and the said pipes are laid as a ‘Works Contract’ including the foundation and structural supports; the Storage Tanks and water tanks along with the foundation are sourced as ‘Works Contract’; the pile foundation for the entire project site is sourced as ‘Works Contract’. It is not in dispute that the Pipelines, storage tanks and water tanks are put in place for furtherance of their business and thereby the tax paid on these becomes eligible credit subject to limitations under Section 17(5) of the Act as these are constructed under ‘Works Contract” and the resultant is an immovable property.
Goods and services for laying of transfer pipeline and the foundation and structural support for such pipeline - HELD THAT:- It is seen that the applicant sources Pipes on own account and the same is laid as a “Works Contract’ including the foundation. Section 17(5) restricts the credit on such goods received for construction & Works Contract service received except when such ‘goods/Works Contract’ services are availed in respect of ‘Plant and Machinery’ and Explanation, which defines ‘Plant and Machinery’ restricts credit on the ‘Pipelines laid outside the factory’.
The Explanation specifies that apparatus, equipment, and machinery fixed to earth by foundation, used for making outward supply of goods is ‘Plant and Machinery’ and there are specific exclusions, which include ‘Pipelines laid outside the factory premises’ The Act clearly states what constitutes ‘Plant and Machinery’ and in that what is excluded i.e. apparatus, equipment, machinery-used for making outward supplies and fixed to earth by foundation or structural support constitutes ‘Plant and Machinery’ and the ‘Pipelines laid outside the factory premises’ are excluded from the ambit of ‘Plant and Machinery’ for the purposes of eligible Credit - it is evident that the intention of the GST Law is to exclude ‘Pipelines laid outside the factory premises’ from the definition of ‘Plant and Machinery’. In Ute ease at hand, the applicant has slated that the pipelines approximate length of around 4.1 Km are to be laid from jelly to the Terminal and accordingly, we hold without any hesitation that the credit of Pipes and Pipelines laid outside the factory’ is not available for the applicant. The decisions relied upon by the applicant is based on the earlier laws and do not have any application while considering the GST Provisions, in as much as the GST law has clearly defined what is to be considered as ‘capital goods’. ‘Plant and Machinery’ and the specific exclusions.
The applicant is not eligible for availment of input tax credit of GST paid on goods and services for laying of transfer pipeline and the foundation and structural support for such pipeline for transporting propane/Butane from jetty to the Terminal as pipelines laid outside the factory premises as being restricted under Section 17(5) of the act read with the Explanation thereof.
Refrigerated storage tanks - HELD THAT:- The Explanation in Section 17 of the Act defines. ‘Plant and Machinery’ as an apparatus, equipment, machinery fixed to earth by the foundation or structural support used for making outward supply and excludes land building and civil structure. So we find that the moot point to be decided is whether the ‘refrigerated storage tank’ falls under the class of apparatus, equipment, machinery and the proposed foundation or structural support claimed falls under the ‘foundation’ or ‘civil structure’ - the Propane/Butane is stored, processed and maintained in refrigerated storage tanks before being dispatched to the end customers as per their requirements. Refrigerated storage tanks are constructed in a manner which can facilitate storage of Propane/ Butane and maintain its characteristics. It is built with certain equipment along with the concrete inputs to enable it to perform the said functions. Therefore, it is clear that these tanks are used for making outward supply’.
Eligibility of credit of tax paid on construction of water lank to follow the fire protection measure al Terminal - HELD THAT:- The applicant is eligible for availment of input tax credit of GST paid on goods and services for setting up of Fire Water reservoir (tank) including the structural support thereon as per the Purchase Order No 4500405071 dated 11.03.2020 subject to the condition that the tanks are capitalized in their books of accounts as ‘Plant and Machinery’ and not as Immovable Property” and the applicant are not eligible to avail input credit of goods and services used for ‘Pile foundation’ and input credit on goods and services used for such pile foundation.
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2021 (4) TMI 881
Exemption from GST - Services provided by the applicant to the recipient i.e. The Greater Chennai Corporation is a pure service provided to the local authority by way of activity in relation to functions entrusted to a Panchayat under article 243G and Municipality under article 243W of the Constitution - Benefit under Serial No. 3 of Notification No. 12/2017- Central Tax (Rate) dated 28.06.2017 - HELD THAT:- The applicant under the said contract has supplied the RO Plant and undertakes O & M of such plant. The Operation of the plant involves treatment of the raw water supplied to them to treated/purify water for dispensing the same to the designated beneficiaries of the GCC. The operation of the Plant includes providing the security for the plant and also issuance of smart cards whenever necessary - the supplies made by the applicant is not 'pure service' but is a composite supply of purified water(goods), smart cards(goods), maintenance of RO Plant, vending machines(Service), providing security(service). The supply being not a 'Pure Service', the same is not covered by the Description of Service at SI.No.3 of Notification No. 12/2017-C.T.(Rate) dated 28.06.2017.
As the primary condition, that the supply must be 'Pure Service' is not satisfied, further conditions are not examined and it is held that the exemption at SI.No.3 of Notification No. 12/2017-C.T.(Rate) dated 28.06.2017 as amended is not available for the applicant.
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2021 (4) TMI 880
Classification of services - Rate of GST - works contract services to TANGEDCO for carrying out retrofitting work for strengthening the NPKRR Maaligai against seismic and wind effect and modification of elevation in TNEB headquarters building at Chennai - Sl.No.3 item (vi) of the N/N.11/2017-Central Tax (Rate) dated 28.06.2017 as amended - HELD THAT:- As per the scope of the contract it is seen that the work covered in the contract envisages detailed engineering, soil investigation and testing, preparation of design, drawing & submission to TANGEDCO for the approval and carrying out execution of foundation, structure, superstructure works for retrofitting strengthening of structural members of NPKRR Maaligai against seismic, wind effect and modification of elevation of NPKRR Maaligai in TNEB Headquarters Complex including provision of glass cladding and aluminium composite panel works including all civil works viz. pile foundation, pile cap, columns, walls, beams, slab, shear wall etc. by supplying the goods involved and the related services, thereby is a composite supply of works contract. Further the works entrusted involves construction, fitting out, improvement etc of NPKRR Maaligai, the immovable property and there exists transfer of property in goods in the execution of the work. Therefore, it is observed that the works undertaken by the applicant are “Works contract” service as per Section 2 (119) of CGST Act 2017 and the supply is a composite supply, thereby condition at 8.1 (a) above is satisfied.
Government entity or not - HELD THAT:- TANGEDCO is a Public Limited Company established by Government of Tamilnadu with more than 90 percent control for the purposes of generation and distribution of electricity. Hence, TANGEDCO Ltd is a Government Entity. It is further pertinent to note that the Authority for Advance Ruling in the case of Tamil Nadu Generation and Distribution Corporation Limited vide TN/ 14/AAR/2020 dt. 20.04.2020 has viewed that TANGEDCO is a Government Entity.
As per the definition of Business, any trade, commerce or similar activity whether or not it is for pecuniary benefit itself is termed as business. TANGEDCO is involved in generation and distribution of electricity for which revenue is collected for the Energy consumed by the consumers. Revenue collection is based on tariff charged to different category of consumers. TANGEDCO as a state generation and distribution utility and deemed licensee is dependent on the collection of revenue for its operation, maintenance & investigation for future growth. It is evident from the above facts that TANGEDCO is involved in the business of selling electricity to the consumers and collecting charges from them which is their predominant activity - the supply of works contract services as per the applicant’s contract cannot be considered as that meant predominantly for use other than for commerce, industry, or any other business or professional purposes.
Rate of GST - HELD THAT:- The SAC for the Construction Service is SAC 9954 and the applicable rates to the various types of construction service are given under S1.No.3 of Notification No. 11/2017-C.T.(Rate) as amended - The rate of GST to be charged on the services provided by the applicant to TANGEDCO for carrying out retrofitting work for strengthening the NPKRR Maaligai against seismic and wind effect and modification of elevation in TNEB headquarters building at Chennai is 18% as per SL.No.3(xii) of Notification 11/2017 CT(Rate) dated 28.06.2017 as amended .
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2021 (4) TMI 879
Exemption from service tax - Agricultural Service - service of cold storage of tamarind inner pulp without shell and seeds - N/N. 11/2017- C.T.(Rate) and 12/2017- C.T.(Rate) both dated 28/06/2017 - HELD THAT:- In the case at hand, it is seen from the affidavits of the ‘Traders’ and the oath of allegiance of the ‘Cultivators’ that the process of removing the shell and seeds are undertaken as a ‘Cottage Industry’ with the ‘Human Resource’ as a main resource and wooden stick, wooden/iron hammer as equipment. The video CD furnished by the applicant shows the tamarind fruit being sun dried, beaten to remove the shell and take the pulp, then hammered to remove seeds. The photographs furnished shows tamarind with Pod; Tamarind with seed and fibre; tamarind without seed. The product for which the cold storage service is provided by the applicant is the deshelled, destringed 8v deseeded tamarind.
In the present case, the product stored is processed by drying the same in the sun and then by beating with wooden sticks to remove the pod and hammered to deseed and destring for extraction of the endocarp/pulp of the Tamarind. This process is not done at farm level. It is clone as a ‘Cottage Industry’ as furnished in the affidavits of the Traders and the Oath of allegiance of the Farmers to whom the storage services are extended by the applicant. Therefore, as clarified in the Circular above, the Tamarind which is processed by sun drying, deshelling, deseeding, the process which are not farm level processes, is not an ‘Agricultural Produce’ as defined under explanation 2(d) of the Notification No. 12/2017-C.T.(Rate) dated 28.06.2017. Once the product for which the storage services are extended is held to be not an ‘agricultural produce’, then the exemption at Sl.No. 54 of the Notification No. 12/2017-C.T.(Rate) dated 28.06.2017 is not available to the product, irrespective of the class of receivers of the service.
The Tamarind inner pulp without shell and seeds is not an ‘Agricultural produce’ as defined under explanation 2(d) of the Notification No. 12/2017- C.T.(Rate) dated 28.06.2017 and therefore the service of cold storage of such tamarind are not exempted under Sl.No. 54(e) of Notification No. 12/2017-C.T. (Rate) dated 28.06.2017.
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2021 (4) TMI 878
Validity of Look-Out Circular (LOC) issued against the petitioner - company defaulted in repayment of a term loan availed from the State Bank of India (SBI) - the petitioner was a Director of the borrower-Company - HELD THAT:- The only reason disclosed in the request of the Bank as well as in the LOC itself was that the petitioner was a Director of the borrower-Company. Such allegation was made in the present tense in both the request and the LOC. However, such allegation is, by itself, insufficient to fall within any of the grounds for issuance of LOC, as contemplated in the relevant Office Memoranda - The petitioner has clearly shown that the petitioner had resigned long back, even before the discovery of alleged fraud in 2014 by the Bank.
Economic offence or any other ground contemplated in the relevant Office Memoranda was not disclosed either in the request of the Bank or the LOC itself to justify the issuance thereof. Apart from the CBI Court and Sessions Court having given a clean chit to the petitioner on similar allegations, the loan-in-question is sufficiently secured in view of the DRT award obtained by the Bank against the borrower- Company and the attachment order passed by the Adjudicating Authority under the PMLA at the instance of the ED relating to the writ petitioner's movable and immovable properties - in the present case, the LOC would not only amount to curtailing the fundamental right to liberty of the petitioner, as guaranteed by the Constitution of India, it would also take away the livelihood of the petitioner which would directly affect his life, also guaranteed by the Constitution.
Neither the LOC nor the request therefor discloses any ground as envisaged in the relevant Office Memoranda to justify the issuance of the LOC and/or the subsequent renewal thereof.
The petitioner has successfully demonstrated that he was not a Director of the Company at the relevant juncture when the borrower- company is alleged to have committed fraud. Thus, there is no basis whatsoever for issuance of the impugned LOC and the consequential subsequent extension thereof against the petitioner - Petition is allowed.
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2021 (4) TMI 877
Maintainability of petition - petition challenged on the premise that the petitioner has filed the case in his individual capacity cannot hold good - prohibition under Section 195(1)(b)(i) of Cr.P.C - HELD THAT:- Undoubtedly, the writ petition is filed by the petitioner in his capacity as the Investigating Officer in ECIR/ACZO/31/2020. The fact that, the writ petition is filed with official sanction is evident from the appearance of the learned Solicitor General. At the same time, I find substance in the objection raised by the Sri. Raval against the manner in which the documents pertaining to the ED case is produced and persons, who are not made parties, named in the writ petition. The explanation offered for production of the documents is that they form part of Exhibit P5 complaint. If that be so, the petitioner ought to have produced the entire set of documents appended to Exhibit P5 complaint, rather than producing the documents of his choice. Even though the petitioner's action is liable to be deprecated, that does not warrant dismissal of the writ petition.
The reason behind bringing certain specified offences under the purview of Section 195 of the Cr.P.C is because the commission of those offences have direct impact on an ongoing judicial proceeding and thereby, on the administration of justice. Section 193 of the IPC being one such offence, the prohibition under Section 195 of the Cr.P.C will apply.
Whether the prohibition under Section 195(1)(b)(i) of Cr.P.C is from taking cognizance only or whether the Police is interdicted from conducting investigation of the offences enumerated in the section? - HELD THAT:- In Nirmaljit Singh Hoon v. State of W.B., [1972 (9) TMI 147 - SUPREME COURT], the offences were under Sections 463, 471, 475, 476 of the IPC and hence the Apex Court held that police authorities have a statutory right under Sections 154 and 156 of the Code to investigate into a cognizable offence, without requiring any sanction from a judicial authority and even the High Court has no inherent power under Section 561-A of the Code (Section 482 of the new Code) to interfere with the exercise of that statutory power - The Special Court has taken cognizance of the offences under the PMLA on 12.10.2020. As such, recording of the accused's statements would undoubtedly fall within the import of the words "in relation to any proceeding in any court" mentioned in Section 195(1)(b) (i).
Whether the prohibition under Section 195(1)(b)(i) could be made applicable to all the offences or should be confined to the offences enumerated therein? - HELD THAT:- The purpose behind the enactment of Section 195 being to ensure that the proceedings of the court are not sullied, nor the administration of justice not meddled with, if the other offences are interwoven and inseparable from the offences within ambit of Section 195(1)(b)(i), necessarily, the prohibition will have to be extended to the other offences also - the only possible conclusion of the bar under Section 195(1)(b)(i) Cr.P.C being applicable to the offences mentioned in the two FIRs, the allegations being to the effect that attempts were made to fabricate false evidence and to coerce and threaten the accused to give false statements. It may be pertinent to note that, if such attempts had fructified, it would have definitely sullied the proceedings of the court and impacted administration of justice. Therefore, even though the other offences alleged are under Section 167 and 195A of IPC, they are undoubtedly interwoven with and inseparable from the offence under Section 193 and therefore susceptible to the prohibition under Section 195(1)(b)(i) of Cr.PC.
The Special Court has already received a complaint from Sri.Sandeep Nair and has allowed the application submitted by the Crime Branch to question him in jail. The 161 statement of Sri.Sandeep Nair recorded thereafter was made available to me in a sealed cover. In my considered opinion, while interdicting the Police from continuing the investigation, interest of justice requires that the Special Judge be permitted to look into the materials collected by the Crime Branch, treating it as the information mentioned in Section 340(1), so as to decide whether it is expedient to conduct an enquiry.
Petition disposed off.
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