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Showing 61 to 80 of 1486 Records
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2020 (3) TMI 1427
Input tax credit - laying of cross-country pipeline nearby river till the boundary wall of the Factory can be taken by the Applicant - Operation and Maintenance Services (O & M Services) obtained by the Applicant for the maintenance of the facility - HELD THAT:- The project for laying cross country pipelines outside the factory premises of the applicant can in no way be directly related to the outward supply of goods. As per Section 2(83) of CGST Act, 2017 outward supply in relation to a taxable person, means supply of goods or services or both, whether by sale, transfer, barter, exchange, licence, rental, lease or disposal or any other mode, made or agreed to be made by such person in the course or furtherance of business. Not acceding, but if assuming for the sake of discussion then too it would be far-fetched to imagine that these pipelines laid outside the factory premises to transport water from a water source to its factory are used for making any "outward supply". To apply the term "used for" in the definition for plant and machinery, there should be a nexus between the impugned items on which ITC is being claimed and outward supply - It is also worth mentioning here that the provisions facilitating availment of Input Tax credit does not extend any blanket or unconditional permission for availment of credit on all items irrespective of its use, place of use and its role in making outward supply of goods or services or both, as appears to have been misconstrued by the Applicant.
Eligibility of input tax credit on taxes paid on annual operation and maintenance services for the pipeline laid outside the factory premises - HELD THAT:- The pipe lines bid outside the factory premises of the applicant are not plant and machinery in view of the above exclusion clause as also that the said pipe lines merit treatment as immovable property. Thus there exist no grounds for availment of Input tax credit on the taxes paid on annual operation and maintenance services of the aforesaid pipeline laid outside the factory premises.
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2020 (3) TMI 1426
Levy of compensation cess - Applicability of GST Notification No. 02/2018-Compensation Cess (Rate) dated 26/07/2018 - sale of coal reject by a power plant of Chhattisgarh State Power Generation Company Limited (CSPGCL) to the applicant - whether the said Power Plant selling coal reject to them is liable to collect compensation cess even though the applicant don't get ITC on coal, resulting in increase in cost of coal waste?
HELD THAT:- The notification prescribes nil compensation cess on coal rejects supplied by a coal washery, arising out of coal on which compensation cess has been paid and no input tax credit thereof has been availed by any person. In the applicant's case, it receives coal rejects from the power plant and not from the coal washery - In a case where there is no ambiguity in the stipulated provisions, there apparently exists no scope of any interpretation whatsoever. In other words, if the provision is unambiguous and if from the provision the legislative intent is clear, there exists no need for any interpretation. It may be mentioned in this connection that the first and foremost, principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute.
Hon'ble Supreme, Court in the case of Swedish Match AB vs. Securities and Exchange Board) India, [2004 (8) TMI 389 - SUPREME COURT] held that Where the words of a statute are absolutely clear' and Unambiguous, recourse cannot be had to the principles of interpretation. A held in Prakash Nath Khanna vs. CIT [2004 (2) TMI 3 - SUPREME COURT], the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency.
Hon'ble Supreme Court in CIT vs. Keshab Chandra Mandal, [1950 (5) TMI 3 - SUPREME COURT] held that "Hardship or inconvenience cannot after the meaning of the language employed by the Legislature if such meaning is clear on the face of the statute''.
The aforementioned judgments of Hon'ble Apex Court, confirms that a notification has to be understood from the plain language of the said notification as also that there is no scope of interpretation in such a case - GST Notification No. 02/2018-Compensation Cess (Rate) dated 26/07/2018 extending nil liability of compensation cess on coal rejects supplied by a coal washery, will not be applicable to coal rejects supplied by a power plant and further such power plant supplying coal rejects to the applicant is liable to collect compensation cess.
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2020 (3) TMI 1425
Seeking withdrawal of company petition - HELD THAT:- The Appellant’s prayer for allowing her to withdraw the Company Petition with liberty to file a fresh one as one of the two alternative prayers having been allowed in terms of the impugned order by the Tribunal, more particularly such course not been objected by the Respondents, we find that there is no reason for the Appellant to feel aggrieved of the same.
Appeal dismissed.
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2020 (3) TMI 1424
Validity of assessment order - liability of the petitioner towards VAT and penalty arrived at by the Assessing Authorities under the Telangana VAT Act, 2005 - HELD THAT:- Since the petitioner had already paid 12.5% or more of the disputed tax pending appeals before the Appellate Deputy Commissioner and the Telangana VAT Appellate Tribunal, we are of the considered opinion that the respondents are not justified in refusing to grant the petitioner stay of collection of the balance disputed tax and issuing Garnishee orders to the petitioner’s banker for recovery of the balance disputed tax.
Petition allowed.
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2020 (3) TMI 1423
Classification of service provided by the State of Jharkhand to the petitioner - GST Rate applicable - Royalty paid - HELD THAT:- The royalty/dead rent paid/payable to the Government by the applicant is consideration against the transfer of right to use minerals including its exploration and evaluation as per the lease granted by the Government to the applicant. The services for the right to use minerals including its exploration and evaluation, as per Sr. No. 257 of the annexure appended to notification no. 11/2017-CT (Rate), dated 28.06.2017 is included in group 99733 under heading 9973.
The services for the right to use minerals including its exploration and evaluation, as per Sr. No. 257 of the annexure appended to notification no. 11/2017-CT (Rate), dated 28.06.2017 is included in group 99733 under heading 9973. Hence it attracts the same rate of tax as on supply of the like goods involving transfer of title in goods. As per notification no. 11/2017-CT (Rate), dated 28.06.2017 under the CGST Act, 2017 and the corresponding State Tax notification no.- 01/2017 dt. 29-06-2017 under GST Act, 2017, Schedule -1 the iron ore extracted by the applicant attract 5% GST as covered under HSN 2601 and 2602 (At Sr. No. 139 and 140 of the notification). Accordingly, the rate of 5% would be applicable.
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2020 (3) TMI 1422
Reopening of assessment u/s 147 - income from sale of land have escaped from assessment - HELD THAT:- DR fails to dispute that the AO had himself made it clear that the issue of the corresponding sale transactions required to be verified. As find in this backdrop that in Manzil Dineshkumar Shah [2018 (5) TMI 1176 - GUJARAT HIGH COURT] holding that Assessing Officer cannot take recourse the impugned proceedings just for the purpose of verification as has been upheld up to the hon'ble apex court in Manzil Dineshkumar Shah [2019 (1) TMI 1284 - SC ORDER] we adopt the very reasoning mutatis mutandis herein to quash the impugned assessment. Assessee’s appeal is allowed.
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2020 (3) TMI 1421
Reopening of assessment u/s 147 - eligible reason to believe v/s suspicion - on the basis of AIR information received by the AO that the assessee has deposited cash in the savings bank account, various verification letters were issued to the assessee to verify these transactions - HELD THAT:- AO reopened the case of the assessee merely on the basis of suspicion that the income of the assessee has escaped assessment. It is a settled that notice u/s 148 of the Act cannot be issued merely on the basis of the insufficient compliance to the letters issued by the department. There must be a something which indicates, even if it does not establish, the escapement of income from assessment.
Merely because some further investigations have not been carried out, which, if made, could have led to detection of an income escaping assessment, cannot be reason enough to hold the view that the income has escaped assessment. Thus, in the present case also, the AO issued notice u/s 148 of the Act merely on the basis of suspicion that the cash deposited in the bank account of the assessee has escaped assessment. See BIR BAHADUR SINGH SIJWALI VERSUS INCOME TAX OFFICER WARD 1, HALDWANI [2015 (2) TMI 60 - ITAT DELHI]
Thus reassessment proceedings initiated by the AO are bad in law and liable to be quashed. Decided in favour of assessee.
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2020 (3) TMI 1420
Reopening of assessment u/s 147 - adjustment to ALP - AO could not have made any transfer pricing adjustments in the absence of a reference u/s 92CA after assumption of jurisdiction u/s 147 - AO had information, in the form of a report by the TPO, determining that the Arm’s Length Price of the international transactions, of the assessee had with its associate enterprise calls for adjustment - HELD THAT:- TPO order is non-est in law. DRP also held that after re-opening the assessment u/s 147 a fresh reference has not been made to the TPO. Hence the adjustment made without a valid reference to the TPO for determination of ALP of the international transaction cannot be sustained. We agree with these findings.
TPO has acted without jurisdiction as there was no valid and continuing reference. The reference made on 08.09.2015 gets terminated or infructuous after passing of the final assessment order u/s 143(3) of the Act on 31.08.2016. A T.P. report is not a material found as in the case of Pooran Mal Etc [1973 (12) TMI 2 - SUPREME COURT]. It is a report which has no legal validity. An adjustment made based on this report is also bad in law.
Directions of the DRP are binding of the AO u/s 144(13) - final assessment order dated 16.05.2019 should have incorporated the finding of the DRP as directed in the order of the DRP. When the DRP has held that the re-opening of the assessment is bad in law, the AO, in our view, has no other alternative but to drop the assessment proceedings on the ground that re-opening of assessment has been held as bad in law. As the AO has not followed the binding directions of the DRP, we have to quash the final assessment order dated as bad in law.
We uphold the view of the DRP that the re-opening of assessment based on a TPO report which is a nullity is bad in law. Hence, we quash the final assessment order passed by the AO u/s 143(3) r.w.s. 144C as bad in law. - Appeal of assessee allowed.
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2020 (3) TMI 1419
Seeking approval of Resolution Plan of Resolution Applicant - Section 31 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is found that the COC has approved the plan with 72.03% voting in favour of the approval of the plan. However, the only objection raised by Axis Bank is in view of recent amendment in Section 30(2)(b) that he is entitled for liquidation value at least, if not fair value - when there is no other objection in respect to the Resolution Plan and only one objection is raised by the dissenting Financial Creditor i.e. Axis Bank Limited, with regard to distribution on pro-rata basis, and in view of recent amendment, as well as, on the ground of reasonability and equity, the Axis Bank is entitled for liquidation value i.e. Rs. 8.60 crores, if not fair value i.e. Rs. 15.09 crores, as against pro-rata of Rs. 2.44 crores.
The fair value of the asset and liquidation value of the asset (in crores) in respect of Solar Plant, upon which Axis Bank has exclusive charge, shows the disparity in the distribution.
It is directed that the other Financial Creditors to contribute the remaining amount either on pro-rata basis and /or in proportion to the extent of their debt and/or as agreed by the other Financial Creditors, to the Axis Bank, so as to get atleast the liquidation value i.e. Rs. 8.06 crores, in view of the recent amendment made in Section 30 of the IB Code. By doing so, a going concern can be saved as the plan has been already approved by majority of voting share as such for disagreement in allocation of funds, the plan cannot be disturbed which has already been delayed. Any further delay, due to the dispute in allocation / distribution of the funds between the Financial Creditors will have far reaching consequences on the economy as a whole as well as it will be prejudicial to the interest of public and other stakeholders, workers, employees; whose livelihood is based on the Corporate Debtor.
The Adjudicating Authority, is of the considered opinion and also being satisfied that the Resolution Plan as approved by the Committee of Creditors (CoC) meets the requirements as referred to under section 30(2) of the Code. However, one of the dissenting Financial Creditor made an objection with regard to the disparity in the distribution of amount on pro-rata basis which is not as per the amended Section 30 of the IB Code - Application allowed.
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2020 (3) TMI 1418
TP Adjustment - ALP determination - ALP for the purchase of MSA[Masters Services Agreement] - from the associate concern as argued that neither the TPO nor the DRP has followed any of the transfer pricing method as specified in section 92C of the Act to determine the ALP for the purchase of MSA from the associate concern HELD THAT:- Section 92C(1) of the Act provides that the international transaction between the assessee and AE has to be on the basis of any of the method being the most appropriate method having regard to the nature of transaction or class of transaction or class of associated persons or functions performed by such persons or such other relevant factors as the Board may prescribe. Thus, it has been specifically provided in the provisions of section 92C(1) that TPO is duty bound to determine the arm’s length price of the international transaction only by following any one of the method prescribed.
In the present case the TPO has not followed any of those methods, which is not a curable defect and goes to the root of the matter. We are of the considered view that the addition made by the TPO cannot be sustained. We further note that the DRP has also erred in not following any of the prescribed method and agreed with the incremental benefit approach adopted by the TPO by taking the actual figures up to A.Y. 2014-15 and for subsequent year directing the TPO to deflate the projected revenue figures by applying average rate of 22.68%. The case of the assessee is supported by case of Tecumseh Products India (P) Ltd. [2014 (4) TMI 816 - ITAT HYDERABAD]
In the case of Firmenich Armatics India (P) Ltd. [2018 (9) TMI 1007 - ITAT MUMBAI] as held that TPO is duty bound to determine arm’s length price of international transaction by adopting one of the methods prescribed under statute and cannot deviate from restrictions/conditions imposed under statute. It further held that there is no provisions under the Act empowering TPO to determine arm’s length price on estimate basis, that too, by entertaining doubts with regard to business expediency of payment and in process stepping into shoes of the AO for making disallowance u/s. 37(1)
We are of the view that the adjustment as made by the TPO/DRP is without any jurisdiction and cannot be sustained.
Adjustment made to the cost of MSA - Even on the issue of determining arm’s length price on the basis of valuation report from the independent valuer, we find that the TPO/DRP has not found any fault in the report in which the projected revenue and projected operating from the unexpired period of the MSA was considered to determine the price payable by WNS India to WCIL and, therefore, the TPO/DRP cannot resort to their own estimate in determining the arm’s length price.
We find merit in the contention of the learned AR that valuation of an intangible requires expertise and knowledge in the domain of valuation principles, markets and business. Even if the TPO/DRP were not in agreement with the variables assumed/valuation undertaken by the independent valuer, they ought to have desisted from their own exercise of adhoc valuation without having appointed a valuation expert to determine the value of the MSA.
In this case, we note that the total incremental benefit in respect of extension of the contract with Aviva Singapore would be USD 57.61 million. The assessee has signed the extension of MSA in November 2014 as against the renewal in November 2016 and the contract was renewed up to March 2022. In our opinion, this hindsight post the valuation date has to be considered if the TPO/DRP has determined the arm’s length price on actual results. On this issue also we do not find the approach of TPO in determining the value of the international transaction based on incremental benefit from purchase of MSA as correct unless the value of customer relationship along with other incremental benefits/actual of profits are considered. We note that the incremental benefit in respect of customer relationship with Aviva Singapore works out to USD 39.61 million. In view of these facts, the value of contract based on the approach as adopted by the TPO is self contradictory and cannot be sustained.
We are inclined to set aside the order of DRP and direct the AO to delete the adjustment made to the cost of MSA. The ground raised by the assessee is allowed.
Deduction u/s. 10A - disallowance in respect of Pune Unit II under the provisions of erstwhile subsection (9) of Section 10A on account of change in shareholding of the assessee during A.Y. 2003-04 - Since the issue is identical to the one as decided by the co-ordinate Bench in assessee’s own case A.Y. 2003-04 respectfully, following the said order allow the ground raised by the assessee.
Deduction u/s 10A after setting off the losses of certain STP/SEZ units against the profits of the STP/SEZ units of the assessee - HELD THAT:- As decided in own case for A.Y. 2005-06 [2019 (1) TMI 1128 - ITAT MUMBAI] decided the issue in favour of the assessee as relying on case of Yokogawa India Ltd. [2016 (12) TMI 881 - SUPREME COURT]
Disallowance of deprecation on intangible assets acquired by the assessee on acquisition of customer contracts, which do not fall under the definition of intangible assets u/s. 32(1) - HELD THAT:- We find that co-ordinate Bench of the Tribunal has decided identical issue in favour of the assessee in its own case for A.Ys. 2005-06 [2019 (1) TMI 1128 - ITAT MUMBAI] there is no dispute that by acquiring M/s. Town and Country Assistance Ltd. the assessee has also acquired contractual rights which, no doubt, is a valuable commercial right. Therefore, it comes within the meaning of intangible asset as per section 32(1)(ii) r/w Explanation 3(b) of the Act. Hence, depreciation claimed by the assessee is allowable. - Decided in favour of assessee.
Profits derived by eligible STP units (u/s. 10A of the Act) to be computed without considering the gain from forex derivative contracts - HELD THAT:- While computing deduction u/s. 10A, the AO did not treat the said gain as part of the profit from export activity for the purpose of deduction u/s. 10A. However, during the year the AO treated the said gain differently. In other words, while computing deduction u/s. 10A, the AO did not treat the said gain as part of the export activity for the purpose of deduction u/s. 10A - there being no change in the facts and circumstances during the year, we are quiet in agreement with contentions of the learned AR that the principle of consistency should be followed and forex gain should be treated as profit from export activity and deduction should be allowed u/s. 10A of the Act. The case of the assessee is supported by the decision of the Apex court in the case of Radhasoami Satsang [1991 (11) TMI 2 - SUPREME COURT] wherein the Hon’ble Court has held that while dealing with the principle of consistency and principle of res judicata, unless there is a material change justifying to take a different view in the matter, shall not be appropriate for the Revenue to take a contrary view.
Forex gain resulting from the settlement of derivative contract is part of the profit from export activity and eligible for deduction u/s. 10A. Besides, Hon’ble Bombay High Court has held in a series of decisions referred to by learned counsel for the assessee namely CIT vs. Gem Plus Jewellery India Ltd. [2010 (6) TMI 65 - BOMBAY HIGH COURT], PCIT vs. Jindal Drugs Ltd. [2018 (12) TMI 1339 - BOMBAY HIGH COURT] and CIT vs. Symantec Software (P) Ltd. [2015 (1) TMI 110 - BOMBAY HIGH COURT] that loss or gain derived from forward contracts entered into by an assessee engaged in export activity should be eligible for deduction. Accordingly, we set aside the order of the DRP on this issue and direct the AO to treat the forex gain as part of the profit for deduction u/s. 10A of the Act.
Set off brought forward business losses and unabsorbed depreciation pertaining to earlier years - HELD THAT:- We find that the learned DRP has directed the Assessing Officer to verify the claim of the assessee regarding the business and depreciation loss and allow the same to the extent available as per law. However, the Assessing Officer has not given effect to the order of the DRP. We direct the Assessing Officer to give effect to the order of the DRP and after verifying the claim of the assessee, allow the same to the extent available in terms of the directions of DRP. This ground is allowed.
Disallowance of depreciation on the acquisition of MSA from foreign AE WCIL - HELD THAT:- Since for A.Y. 2011-12 we have already decided the issue in favour of the assessee holding that the price paid by the assessee to foreign AE on account of purchase of MSA is at arm’s length price and is a commercial right. Since this is a intangible assets being commercial rights within the meaning of section 32(1)(ii) of the Act and eligible for depreciation. Accordingly , we hold that depreciation is to be allowed to assessee. The AO is directed accordingly by setting aside the order of DRP on this issue.
Disallowance of depreciation on intangible assets - HELD THAT:- Commercial rights acquired by the assessee are in the nature of intangible asset as per section 32(1)(ii) read with Explanation 3(b) of the Act and depreciation is allowable on the said rights. Accordingly, we allow the grounds raised by the assessee. Grounds are allowed.
Disallowance u/s 14A - need of recording satisfaction - assessee earned dividend income from Mutual Funds which was claimed as exempt u/s. 10(35) - assessee incurred direct expenses in relation to the said income And the same was suo moto disallowed u/s. 14A - HELD THAT:- As recording of satisfaction is a pre-requisite under the provisions of section 14A(2) before invoking the provisions of section 14A Rule 8D, which the Assessing Officer has failed to do. The case of the assessee is squarely covered by the decision of the jurisdictional High Court in the case of Godrej & Boyce Manufacturing Co. Ltd. [2010 (8) TMI 77 - BOMBAY HIGH COURT] wherein the Hon’ble Court has held that satisfaction of the Assessing Officer has to be objectively arrived at after considering all relevant facts and circumstances and books of accounts of the assessee.
In the case of Maxopp Investment Ltd. & Ors. [2011 (11) TMI 267 - DELHI HIGH COURT] as held that provisions of section 14A Rule 8D would be triggered only if Assessing Officer records a finding that he is not satisfied with the correctness of the claim of the assessee in respect of such expenditure. This decision has been further upheld by the Hon’ble Apex Court [2018 (3) TMI 805 - SUPREME COURT]. We, therefore, respectfully following the ratio laid down by the Apex Court and Bombay High Court as discussed above , set aside the order of the DRP and direct the Assessing Officer to delete the disallowance. We are not dealing with the other contentions of the assessee, as we have already allowed the ground on first plea.
Disallowing the set off of brought forward business losses and unabsorbed depreciation relating to earlier years - HELD THAT:- We were informed the AO has not given effect to the directions of the DRP. Therefore, we, deem it necessary to direct the AO to follow the directions of the DRP and adjudicate the matter accordingly.
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2020 (3) TMI 1417
Income under section 2(24) - Receipt towards access to use software and IT support services - Whether it is erred in holding that the payments received by the Appellant constitutes ‘ income ‘ without appreciating that the appellant work only on cost- only arrangement and the receipts were reimbursement being in the nature of cost allocation without markup and hence does not constitute income under section 2(24) of the Act? - HELD THAT:- As pointed out by the Ld. counsel, the coordinate Bench has decided the identical issue in favour of the assessee in assessee’s own appeal AY 2015-16 [2020 (1) TMI 649 - ITAT MUMBAI] by following the decisions of the coordinate Bench rendered in the assessee’s appeals pertaining to the AYs 2012-13 , 2013-14, 2014-15.
Receipt towards access to use software held as royalty’ under the India-Netherland DTAA - HELD THAT:- As in favour of the assessee in the assessee’s appeals pertaining to the AYs 2011-12 to 2014-15. We further notice that Ground No. 5 and 6 of the present appeal are identical to the assessee’s appeal for the AY 2015-16 [2020 (1) TMI 649 - ITAT MUMBAI] and the coordinate Bench has decided the said issue in favour of the assessee by following the decision of the Tribunal in assessee’s own appeals pertaining to the earlier assessment years.
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2020 (3) TMI 1416
CENVAT Credit - inputs - according to the revenue, the final product was not manufactured - according to the assessee, the process resulted in a manufacture - HELD THAT:- There are no reason to entertain this appeal as no case of perversity is made out.
Appeal dismissed.
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2020 (3) TMI 1415
TDS u/s 194A - Motor Accidents Claims - interest accrued on the amount of compensation without deduction of Tax Deduction at Source (TDS) - HELD THAT:- In the present case, while passing the award the MACT has already held that the claimants are entitled for total compensation along with interest @ 7.5% per annum from 23.6.2017 till its the payment. Out of the aforesaid the amount, a further direction has been given that claimant No.1/respondent No.1 shall be entitled to receive Rs.4,84,000/- in cash Rs.3,00,000/- be paid in cash to each of three sons of the deceased and Rs.3,00,000/- - 3,00,000/- be further deposited in the form of FDR in the nationalised bank in which interest shall be paid to respondent No.1 periodically.
Judgment of the MACT has attained finality as neither the claimants nor the Insurance Co. has filed any appeal before this High Court . The Insurance Co. has already been directed by learned Motor Accident Claims Tribunal to examine whether the interest payable to respondent No.1 was exceeding Rs.50,000/-, then only the interest is liable to be deducted. Hence, in the present case, the issue in regards to the deduction of TDS on the interest components payable to respondent No.1 is not liable to be considered again.
This Court in the aforesaid three cases i.e. Ramlal [2010 (11) TMI 1118 - MADHYA PRADESH HIGH COURT]; Smt. Swaroopi Bai [2019 (6) TMI 1669 - MADHYA PRADESH HIGH COURT]; and Draupadibai [2010 (9) TMI 738 - MADHYA PRADESH HIGH COURT] has consistently held that the tax is payable on the interest accrued on the the amount of compensation under Motor Vehicle Act with a rider that the interest should not be more than Rs.50,000/- per claimant per financial year. After the aforesaid award, the Insurance Co. has calculated the interest payable on entire the amount of compensation and deducted the TDS @ 20%.
At the most, the Insurance Co. can file the details of calculation of the the amount of interest, payable to each claimants and explain to the MACT that the same is exceeding Rs.50,000/- per month and the deduction of TDS was justified. If such details are filed, then the direction given in the case of Ramlal (supra) shall apply and it would be the discretion of claimants to claim a refund from the Income Tax Department or not.
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2020 (3) TMI 1414
Validity of statement dated 12th February, 2020 issued by the respondent no.4 under the SVLDR Scheme - Learned senior counsel for the petitioner states that respondent no.4 without taking into account the amount of Rs.4,92,47,372/- deposited by the petitioner has determined that the liability of the petitioner is Rs.5,55,34,486/- - HELD THAT:- Issue notice.
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2020 (3) TMI 1413
Validity of circular No.1027/15/2016-CX : MANU/EXCR/0016/2016 - reversal of CENVAT Credit - Bagasse - non excisable good or not - HELD THAT:- The petitioner states that this very circular was challenged in the Allahabad High Court and by the judgment M/S BALRAMPUR CHINI MILLS LTD. THROUGH ITS GENERAL MANAGER VERSUS UNION OF INDIA, MINISTRY OF FINANCE DEPARTMENT OF REVENUE [2019 (5) TMI 972 - ALLAHABAD HIGH COURT] Allahabad High Court set aside this circular and this judgment has been permitted to become final.
In this view of the matter and in view of the categoric statement made by the learned counsel for the petitioner, we allow this writ petition in the same terms as the above judgment with liberty to the Revenue to file an application for review in case the assertion regarding the judgment having been permitted to become final is not correct. However, it is clarified that once the circular has been set aside the show cause notice based on the impugned circular is also automatically set aside.
Petition stands allowed.
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2020 (3) TMI 1412
Penalty u/s.271AAB - undisclosed income - disclosure was on account of inflated expenses - HELD THAT:- Lower authorities failed to establish that the assessee had disclosed the income with reference to any specific loose papers / assets etc. AO had failed to substantiate that the disclosure made u/s 132(4) was on the basis of any incriminating material. Therefore, the requirement that there must be undisclosed income in terms of Explanation (c) to Sec. 271AAB was not fulfilled.
We find that a total disclosure of Rs.10.51 Crores was made with respect to various entities including assessee as well as Bharatkumar Parikh besides other entities. In the case of assessee, the disclosure was on account of inflated expenses. However, no incriminating material was found during search operations and the undisclosed income was not represented by any money, bullion, Jewellery or other valuable article or thing or any entry in the books of accounts. None of the entries in the books was found to be false and the disclosure was voluntary. Therefore, the same would not fall within the term undisclosed income as defined in Explanation-c(ii) to Sec.271AAB. Hence, the factual matrix do not convince us to confirm the impugned penalties. By deleting the same, we allow both the appeals.
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2020 (3) TMI 1411
Nature of loss - business loss or speculation loss - Treating the business loss incurred in Future & Option of Derivatives as Speculation Loss u/s 73(1) - whether considering the F & O transactions has not satisfied the condition of section 43(5)? - HELD THAT:- The derivatives i.e. Future and Option transactions were taken place in the recognized stock exchange i.e. National Stock exchanged and MCS in various scripts and currencies. The detailed broker note along with contract notes/invoices were submitted during the course of assessment proceedings. The assessing officer has treated the aforesaid loss as speculation loss and stated that as per section 73(1) of the Act the same cannot be set off against other normal business loss.
We consider that the ld. CIT(A) is not justified in treating the business loss incurred in Future & Option of Derivatives as speculation loss. Therefore, following the decision of the Co-ordinate Bench [2019 (9) TMI 610 - ITAT AHMEDABAD] the appeal of the assessee is allowed.
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2020 (3) TMI 1410
Service of notice - HELD THAT:- Mr. Abhirup Dasgupta, Advocate appears on behalf of the Respondent No. 1 on Caveat. Service of formal notice is waived for Respondent No. 2. It is stated that the Respondent No. 2 is formal Respondent. Respondent No. 2 be served notice.
List the Appeal ‘For Admission (After Notice)’ on 09th April, 2020.
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2020 (3) TMI 1409
Profiteering - purchase of Flat - it is alleged that the Respondent had not passed on the benefit of ITC (ITC) availed by him by way of commensurate reduction in the price - contravention of section 171 of CGST Act - HELD THAT:- A careful perusal of Table-‘B’ submitted by the DGAP shows that the Respondent has been given credit of Rs. 43,75,985/- on account of the ITC earned by him on the Value Added Tax (VAT) which he has paid on the purchase of the goods during the period from April, 2016 to June, 2017 while executing the above ‘Affordable Housing Project’. However, it has not been mentioned in the Report that the said credit of VAT was in accordance with the provisions of Section 42 (1) and (2) of the Haryana Value Added Tax Act, 2003 and whether the above credit has been allowed to him by the appropriate Assessing Authority as specified under the Act. No reasons have been given by the DGAP in his Report why the Respondent was eligible to claim the above ITC. It has also not been explained whether the Respondent was discharging his VAT liability as a regular registered dealer or was as a composition dealer. It has also not been stated in the Report whether the Respondent was eligible to charge VAT from the buyers under the Haryana Affordable Policy-2013 and whether he had collected VAT from his buyers or not?
Perusal of the supplementary Report dated 19.02.2020 furnished by the DGAP and Table-‘D’ of his first Report dated 16.09.2019 shows that the Respondent has passed on the benefit of Rs. 1,21,08,722/- to the flat and shop buyers. In this connection it would be pertinent to mention that the DGAP has not verified even a_ single acknowledgement submitted by the Respondent from the flat or the shop buyers to establish that they have actually received the benefit of GST as has been claimed by the Respondent. The DGAP has also not produced even a single acknowledgement/statement of the buyers obtained/recorded by him to confirm whether the benefit of ITC has been passed on to the buyers or not. In the absence of such acknowledgement/statement the claim of the Respondent that he has passed on the benefit of ITC to his buyers cannot be accepted.
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2020 (3) TMI 1408
Maintainability of petition - petitioner submits that the cause in the writ petitions does not survive for adjudication by this Court anymore, and thus, the matters have become infructuous - HELD THAT:- The writ petitions are dismissed as infructuous.
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