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Showing 61 to 80 of 1320 Records
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2020 (9) TMI 1262
Condonation of delay of 358 days in the application which has already been tiled under Section 9 of IB Code - HELD THAT:- The instant application is the original application and the delay cannot he condoned as prayed in the application.
The instant application is dismissed as not maintainable.
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2020 (9) TMI 1261
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - Conflicting orders have been passed by the two Members comprising the Bench of Adjudicating Authority (National Company Law Tribunal) - mandate of Section 419(5) of the Companies Act, followed by the two members or not - HELD THAT:- It is deemed appropriate to dispose of this appeal with direction to the same Bench of the Adjudicating Authority, which passed two conflicting orders, to make a reference to Hon’ble President, NCLT, if not already made, in terms of Section 419(5) of the Companies Act, 2013, for hearing on the issues and points on which the two Members of the Bench had divergent view in the split verdict so that the matter is placed before a third Member for hearing and the Company Petition is decided in accordance with the opinion of the majority of the Members who heard the case including the member before whom it is placed.
Matter to be referred to Hon’ble President, NCLT - the appeal is accordingly disposed of.
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2020 (9) TMI 1260
Suit for recovery of money with interest - Allegation is that the suit pronote has been fabricated to wreck vengeance - main defence taken by the defendant is that the pro-note was not executed by him - HELD THAT:- The subject matter of the suit is Ex.A- 1 pro-note. The lender and the witness to the Pro-note had deposed their presence during the execution of the pro-note by Ex.A-1. No contra evidence to dislodge the case of the plaintiff adduced by the defendant - Relatives witnessing the pro-note transaction, is not a circumstances to draw suspicion. In addition to the witness to the execution, the scribe PW-3 also examined by the plaintiff and he has deposed that he saw the defendant affixing his signature and thumb impression. The defendant who denies the signature and thumb impression, not taken any steps to refer the disputed signature and thumb impression for comparison by experts. The Courts below pointing out this, had compared the disputed signature with the admitted signature found in the vakalat and summon and found to be from same person.
Ex.A-1 being a negotiable instrument, the special rules of evidence under chapter XIII of the Negotiable Instruments Act is applicable. Under section 118 of the Negotiable Instruments Act, until the contrary is proved, the presumption of consideration and date are in favour of the plaintiff. The plaintiff burden is only to prove it execution - In this case, the plaintiff had satisfactorily proved the execution through PW-2 and PW-3. Thus the burden has shifted to the defendant to prove the contrary. He has not taken any steps to positively prove the contrary. In the said circumstances, the Courts below after recording the reason for invoking section 73 of the Evidence Act had proceeded to arrive at a conclusion.
The defendant though had pleaded that the pro-note was not executed by him, he has not placed any acceptable proof to disbelieve the ocular evidence of PW-2 and PW-3. The best way to disprove is by calling the expert. This option was not exercised by the defendant - this Court is of the view that this is a fit case to exercise section 73 of the Evidence Act.
This Court finds that the final Court of facts had held the plaintiff has proved the execution of the pro-note by the defendant and the said debt still un discharged - there are no substantial question of law for interfering the concurrent finding of the Courts below - appeal dismissed.
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2020 (9) TMI 1259
Deduction u/s 80IB - Unaccounted money, found during the search proceedings and explained as on money received, are eligible for deduction under Section 80IB(10) as held by ITAT - Whether Tribunal was right in holding that, transactions entered into, with the buyers of flats, are eligible for deduction, even though there is violation of the sub-Sections(e) and (f) of Section 80IB(10), on the ground that these transactions were entered into before the amendments to sub-Section (3) and (f) of Section 80IB(10)? - HELD THAT:- For the reasons assigned by us in the order passed today in [2020 (9) TMI 1138 - KARNATAKA HIGH COURT] the substantial questions of law are answered against the revenue and in favour of the assessee.
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2020 (9) TMI 1258
Validity of assessment order - levy of sales tax - local sale or inter-state sale - movement of goods from the State of Maharashtra to Mumbai High - HELD THAT:- On reading of the judgment in THE COMMISSIONER OF SALES TAX VERSUS M/S. PURE HELIUM (INDIA) LTD. [2012 (2) TMI 5 - BOMBAY HIGH COURT], it is evident that this Court has held that movement of goods from the State of Maharashtra to Mumbai High does not constitute a movement from one state to another state; Mumbai High does not form part of any state in the Union of India. Thus the very basis on which revenue sought to assess the sale as an inter-state sale was found absent. This being the position, foundational view taken by Respondent No.2 that movement of goods from the State of Maharashtra to Mumbai High is a sale within the territory of the State of Maharashtra is factually and legally unsound. Article 286 of the Constitution of India, particularly clause 1(a) thereof clearly says that no law of a state shall impose or authorize the imposition of a tax on the supply of goods or of services or both, where such supply takes place outside the state.
Prima facie, impugned order of assessment is without jurisdiction. Therefore, as an interim measure, we direct that no coercive steps shall be taken by the Respondents against the Petitioner on the basis of the order of assessment impugned.
Stand over to 1st October, 2020.
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2020 (9) TMI 1257
TP Adjustment - comparable selection - HELD THAT:- There cannot be any dispute with respect to that for the comparability analysis the functions performed, assets employed and risks assumed of the assessee is required to be compared strictly with each of the comparable companies. Unless they are found to be distinct, they cannot be excluded merely because they have been excluded in some other assessee’s case. However in the present case, the issue is when a particular comparable company is excluded from the comparability analysis in assessee’s own case for earlier years, for whatever reasons, even if same was excluded following some judicial precedent of other assesses, judicial discipline requires that we follow - We direct the learned transfer pricing officer/assessing officer to exclude (1) E Clrex Services Ltd, ( 2 ) Infosys BPO Limited and ( 3) TCS E Serve Limited and then work out the margins of the comparable. Accordingly, ground number 2 – 3 of the appeal of the assessee is allowed.
Disallowance u/s 14A - HELD THAT:- When the assessee has not earned any exempt income during the year, there cannot be any reason to disallow any expenditure during the year. This principle has been laid down by many judicial authorities. In view of this we direct the learned assessing officer to delete the disallowance u/s 14 A of the act as assessee has not earned any exempt income. Thus ground number 4 of the appeal is allowed.
Non granting the full credit of tax deduction at source claimed by the appellant in its return of income - HELD THAT:- AO is directed to verify the credit claim of the assessee and if found in order may allow the credit claimed by the assessee for tax deduction at source. Accordingly, ground number 6 of the appeal is allowed.
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2020 (9) TMI 1256
Seeking grant of Regular Bail - principle of parity - HELD THAT:- On the principle of parity the petitioner deserves to be granted regular bail.
It is deemed appropriate to grant regular bail to the petitioner - the petitioner is directed to be released on regular bail on his furnishing bail and surety bonds to the satisfaction of the trial Court/Duty Magistrate concerned - petition allowed.
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2020 (9) TMI 1255
TDS u/s 195 - disallowance of BD commission - Tribunal remitting the issue of disallowance of BD commission without deciding whether the appellant was liable to deduct tax at source - Whether the appellant was not able to deduct tax source in respect of the BD commission paid by it considering the provisions of the Act and the DTAA between India and US particularly when the recipient did not have any permanent establishment in India? - HELD THAT:- There can be no quarrel with regard to the aspect that the Tribunal is the final fact finding Authority. Nevertheless, the jurisdiction of the Tribunal is confined to the lis before it and more particularly in the instant case, it is the assessee's appeal and they cannot be worse off in their appeal and the Tribunal has no jurisdiction to direct the AO by virtually reopening the proceedings concluded under Section 201 of the Act pursuant to the order passed by the CIT(A) concerned.
Tribunal ought to have referred to the said order and if, in its opinion, the order does not bind the Tribunal, then, adequate reasons ought to have been assigned by the Tribunal in that regard. We find that nothing was recorded by the Tribunal in the impugned order.
Argument of Revenue of the impugned order will clearly show that the impugned order is an order of remand with a direction to the Assessing Officer to redo the matter and that no substantial question of law would arise in this appeal for the Court to interfere with the impugned order - We do not agree with the said submission since the legal position is that an order or a judgment has to be read in its entirety and cannot be read in a truncated fashion. Thus, what flows from the observations and directions in paragraph 11 of the impugned order has to be read along with paragraph 13. In fact, in paragraph 11, there are pointed observations to the Assessing Officer, which appear to be wholly adverse to the assessee.
Which we need to point out is that the Tribunal observed in paragraph 11 that the AO has to examine as to whether there was any concerted effort to shift profits by camouflaging it as commission on sales. This was never the case of the Revenue either before the AO or before the CIT(A) or for that matter before the Tribunal. The tenor of the observations gives a different impression to the transaction done by the assessee, which, in our considered view, was not called for. In the light of the above discussions, we hold that the Tribunal exceeded in its jurisdiction while remanding the matter to the AO, which has the effect of reopening a concluded proceedings vide order dated 03.2.2014 passed by the concerned CIT(A).
Accordingly, the above tax case appeal is allowed and substantial question of law Nos.1 and 2 are answered in favour of the assessee.
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2020 (9) TMI 1254
Penalty for violation of Regulations 3 and 4 of the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 (hereinafter referred to as ‘PFUTP Regulations’) - trading activities in the illiquid Stock Options at BSE - non-genuine trades which was 81.38% of the total trades executed in the Stock Options Segment of BSE - HELD THAT:- As buying and selling of equivalent quantities within the day may not be illegal but if the trades were done with ulterior purposes then the same are non-genuine. In the instant case, we find that one party is making a profit and the other party is making a loss. In addition, there is proximity in the time of sell orders at a higher price and the same quantity is being reversed to the same party in a lower price within a fraction of seconds or few minutes. We find that contracts got matched between the same parties. We fail to understand as to why the Appellants who made the transactions repeatedly incurred substantial losses within a few minutes. Given the fact that there was proximity of time between buy and sell orders one can reasonably point to some kind of manipulative exercise with prior meeting of minds especially when one can see it plainly that it was a clear case of synchronised trading namely that a synchronised trade is one where the buyer and seller enter quantity and time of shares they wish to transact at the same time.
From the aforesaid cumulative analysis of the reversed transactions with the counter party, quantity, time and significant variation of the price clearly indicates that the trades were non-genuine and had only misleading appearance of trading in the securities market without intending to transfer the beneficial ownership. One finds it to be naive to presume that the perception of the two counter parties to a trade changed within few seconds/minutes and positions were interchanged and the contracts were changed where one party made profit and the other party ended up making losses every time without prior meeting of mind. It is not a mere coincidence that the Appellants could match the trades with the counter party with whom he had undertaken the first leg of respective trade. In our opinion, the trades were non-genuine trades and even though direct evidence is not available in the instant case but in the peculiar facts and circumstances of the present case there is an irresistible inference that can be drawn that there was meeting of minds between the Appellants and the counter parties, and collusion with a view to trade at a predetermined price.
As urged by the learned counsel for the Appellants that the penalty awarded is excessive and harsh and, therefore, prayed that in the event the order is affirmed the Tribunal may consider reducing the penalty amount taking into consideration the financial status of the Appellants and the negligible transactions executed by the Appellants.
We have perused the orders passed by the AO. We find that the AO has taken into consideration not only the factors contained in Sec. 15J of the SEBI Act but has also taken into consideration the number of total trades, the artificial volume generated, the loss incurred, etc while imposing the penalty. It may be stated here that the minimum penalty under Sec. 15HA is Rs.5Lacs and maximum penalty is Rs. 25 crores or three times the profit made. We find that the AO has excercised its discretion which is neither harsh nor arbitrary. We do not find any error in the quantum of penalty imposed by the AO.
We do not find any merit in the appeals and the same are dismissed with no order as to costs.
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2020 (9) TMI 1253
Classification of goods - Product Sand - to be classified under Tariff Heading 2505 or not - taxable at 5% or not - reverse charge mechanism - serial number 64 of notification number 12/2017 Central/State Tax (Rate), dated 28.06.2017 - HELD THAT:- Serial number 64 of the notification deals with assignment of right to use any natural resources. The instant case does not involve assignment of any right to use any natural resource. It is not in dispute that the Respondent engaged is in the business of exploiting sand from the river beds and that the right to explore for, exploit/extract sand is assigned by the Government for consideration, generally termed royalty. Upon extraction of the sand, the Respondent is free to sell it in the market. The Merriam Webster Dictionary defines the word “use” as “to do something with (an object, machine, person, method, etc.) in order to accomplish a task, do an activity, etc.”. The activity of the Respondent is no way involved with “using” the sand extracted by it to accomplish any activity or any task. In fact, the Respondent actually parts with the sand extracted by it rather than making any use of it.
Once it is held that the activity in question does not fall within the scope of the said serial number 64, the claim for exemption made by the Respondent fails.
The services provided by Government to the Respondent are classifiable under the heading 997337 viz. “licensing services for the right to use minerals including its exploration and evaluation” and that the rate of tax applicable to this activity is 18% with effect from 01.07.2017 itself - in the instant matter the services provided by the Government to the Respondent do not fall within the scope of serial number 64 of the impugned notification number 12/2017.
The Respondent has all along been discharging his tax liability in the matter of the service under consideration in this matter, at the rate of 5% on reverse charge basis. This fact is significant since it indicates that for a considerable period of time since the implementation of GST, the Respondent has admitted that services provided by the Government to him in this matter are not exempt and hence do not fall within the ambit of the said serial number 64 of the impugned notification number 12/2017 (supra). Even his appeal before the Authority for Advance Ruling was limited to the issue of whether 5% was the rate applicable to the activity in question. There was no contention on behalf of the Respondent before the said Authority that the said activity was exempt from tax.
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2020 (9) TMI 1252
Non maintainability of appeal on low tax effect before ITAT - Addition u/s 68 - bogus LTCG on penny stock - HELD THAT:- Tribunal has identified the appeals involving tax effect by virtue of relief given by the CIT(A) below Rs.50 lakhs on 14/08/2019 and dismissed those appeals. On 14/08/2019, no such Circular was available. The subsequent Circular, in any case, would not make the order of the Tribunal suffering from an apparent error. The Circular No.23 of 2019 or Office Memorandum F.No.279/Misc./M-93/2018-ITJ (PT.) nowhere contemplates that these will be applicable w.e.f. 08/08/2019, i.e. the date when Circular No.17 of 2019 was issued.
In cases involving long term capital gains and short term capital gains exemption through penny stocks, we find that the CBDT has since come out with a special order communicated vide office memorandum dated 16.09.2019 stating that monetary limits fixed for filing appeals in these cases before the Tribunal, High Court and Supreme Court shall not apply in case of assessee claiming bogus LTCG/STCG through penny stock and appeal shall be filed on merits. The special order thus talks about filing of appeal in such cases and therefore, it relates to any appeal in such cases which can be filed pursuant to such an order on and after the date of such special order and therefore doesn't contemplate a situation where the appeal which has already been filed prior to issuance of such a special order by the Revenue which shall be read and understood as filed pursuant to such special order.
CBDT low tax effect circulars issued from time to time wherein the tax effect have been progressively increased by the -Revenue with a view to minimize the litigation has been read by the Courts and the Tribunal, and even the CBDT has also clarified latter, that these CBDT Circulars shall apply not just to future appeals but also to pending appeals and therefore, where the appeal has already been filed'by the Revenue and is pending, such appeal has been held to be covered by a subsequent low tax effect circular and dismissed on account of low tax effect. However, in the instant case, the issue is regarding carving out an exception from such low tax effect limits and that too, not just by a general order but by way of a special order where such appeals can be filed, therefore, unless the special order has been passed by the CBDT and an appeal is filed pursuant to such a special order, the exception cannot be read and understood to apply to existing appeals which have already been filed prior to issuance of the special order. Therefore, we are of the considered view that the CBDT Circular no. 23 of 2019 should be read along with special order of the CBDT dated 16.09.2019 in respect of appeals filed pursuant to such special order and shall thus apply to all appeals filed on or after 16.09.2019 by the Revenue where the tax effect may be low but the appeal can still be filed by the Revenue on merits.
In the instant case, the appeal of the Revenue was filed on 22.05.2019 and therefore, the present appeal was not filed pursuant to such a special order of the CBDT dated 16.09.2019 and thus, the matter doesn't fall in any exception as so prescribed by the CBDT in its earlier circular dated 8.8.2019 and the special order doesn't apply in the instant case and the appeal has thus rightly been dismissed by the Bench on account of low tax effect in light of CBDT's circular dated 8.8.2019. Miscellaneous Applications filed by the Revenue are dismissed.
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2020 (9) TMI 1251
Seeking provisional release of goods - Used Rubber Tyre Cut in Two Pieces - Section 110A of the Customs Act - Mis-declaration of goods - prohibited goods or not - HELD THAT:- The issue is covered in the decision in the case of M/S. BLACK GOLD TECHNOLOGIES VERSUS UNION OF INDIA, THE COMMISSIONER OF CUSTOMS, TUTICORIN, THE ASSISTANT COMMISSIONER OF CUSTOMS (SIIB) , TUTICORIN [2020 (9) TMI 137 - MADRAS HIGH COURT] where it was held that petitioners are entitled to provisional release of the goods under Section 110A of the Customs Act, 1962.
The respondents are directed to assess and permit the provisional release of the goods in question upon payment of applicable duties of customs subject however to the eventual adjudication. The respondents shall release the goods after assessing and collecting the customs duty and other charges provisionally within a period of three weeks from the date of receipt of a copy of this order. The adjudication proceedings can go on. The respondents will bear in mind the usual approach adopted in the case of provisional release of goods in terms of 110A of the Customs Act.
Petition allowed.
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2020 (9) TMI 1250
Input Tax Credit - inputs/ Capital Goods used or intended to be used for creation of covered logistics facility space (warehouse) to be rented out for storage purposes - credit on inputs, if the goods and services are consumed and used in construction of covered logistic facility space when the said Input Tax Credit would be utilized in order to discharge and pay CGST and HGST/IGST on rent received from tenants of the warehouse - restriction imposed under Section 17(5)(d) of the CGST Act 2017 - HELD THAT:- In the instant case, the construction has been done by the Appellant for itself i.e. with all intentions to retain its ownership rights, and is only going to lease it to the other party. Thus the construction has been done, without any doubt, in the Appellant's own account. The same, in the light of what is clearly expressed in Section 17, sub-Section (5), clause (d) ibid, is not entitled to ITC on the inputs/ input services.
The AAR has correctly observed that the applicant was engaged in the business of logistic services including warehouses constructed for the applicant's business of letting out; that, Section 17(5)(d) renders ITC unavailable in respect of goods and services received for construction of immovable property(other than Plant and Machinery) on Taxpayer's own account, including when such goods or services or both are used in the course of furtherance of business.
Hon'ble court in M/S. SAFARI RETREATS PRIVATE LIMITED AND ANOTHER VERSUS CHIEF COMMISSIONER OF CENTRAL GOODS & SERVICE TAX & OTHERS [2019 (5) TMI 1278 - ORISSA HIGH COURT] has concluded that they do not intend to hold it [the provision of Section 17(5)(d/] as ultra-vires (Para 20 of the Order). Thus it is clear that the Hon'ble High Court has provided a liberal construction and the same as such is not law, particularly as the Department has challenged the same in the Hon'ble Supreme Court. The Appellant has itself admitted that the Hon'ble Apex Court has issued the notice. Thus the case shall be listed for arguments - The department has filed an appeal against the said judgment of the Hon'ble Orissa High Court in CHIEF COMMISSIONER VERSUS SAFARI RETREATS PRIVATE LIMITED [2020 (3) TMI 1150 - SC ORDER]. The case is presently pending after notice of admission. In view of the CBIC's ibid instruction, the case has not attained finality. The same is therefore not binding in the present case.
Appeal dismissed.
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2020 (9) TMI 1249
Classification of services - recovery of various charges including Preferential Location Charges (PLC) from the Buyers - applicability of GST rate of 12% or 18% where sale/transfer of constructed property has taken place before issuance of completion/Occupation certificate (CC/OC) - GST rate of 5% or 18% where sale/transfer of constructed property has taken place before issuance of CC/OC under new projects which commence on or after 01.04.2019? - PLS collected along with consideration for sale of properties is outside the scope of supply where sale/transfer of constructed property is entered into by the Applicant after issuance CC/ OC or not? - PLS attracts concessional rate of tax/exemption or not - adjustment/refund of the excess GST amount paid as (18% less 12%) or (18% less 5%) or (18% less Nil)?
GST rates on construction service - HELD THAT:- With one-third of the total transacted value of an immovable property being attributable to the Land/ share of Land, the 5% GST Rate, viz. two-third of (3.75+3.75), claimed by the Appellant pertains to the other than Affordable Residential Projects to commence w.e.f. 1.04.2019 - Similarly 12% GST Rate, viz. two-third of (9+9) claimed by the Appellant pertains to other projects including commercial projects - Similarly 12% GST Rate, viz. two-third of (9+9) claimed by the Appellant pertains to other projects including commercial projects.
Preferential Location service - Whether Preferential Location Service (PLS), is Construction Service? - HELD THAT:- It is clear from the Appellant's pleas that they are claiming the rates of 5% or 12% for Preferential Location service and simultaneously claiming these services as Construction Service/ a component of Construction Service. It is also clear that the claim includes entitlement to abatement of one-third from the value/ consideration of landed/ immovable property - As admittedly stated by the Appellant, the different rates of the houses can be on account of different locations. Thus premiumness of a location attracts a commensurate consideration which the buyer pays for an identified advantage, viz. view/ direction/ sunlight/ airiness/ vicinity/ serenity/ parking facility etc. etc., or a combination of these. This makes the provided service an exclusive service capable of providing even by a dealer in immovable property. The same therefore need not necessarily be a component of construction service.
Conditions for taxation of PLS - whether the provisioning of Preferential Location Service (PLS) would be considered as provided even when the entire consideration for the immovable property is received after the issue of Completion Certificate or Occupation Certificate? - HELD THAT:- The answer, even prima-facie, is yes, since the service is identifiable separately from the construction service in the same way as a property agent's service is separate from the sale of a landed property or renting of a landed property.
Whether PLS is a component of immovable property? - HELD THAT:- Preferential Location Service is integrally linked to, and is provided through, an Immovable Property/ Real Estate/ Landed Property but it is identifiable as a separate and exclusive Service - “Construction of Complexes/ Buildings' and “Preferential Location' are separate and different activities. Usually, all the houses/floors in a complex/building may not have preferential location. Therefore, a builder may not charge the PLC (preferential location charges) in respect of all the houses/floors. Thus, Construction of a Complex, Building etc. is an independent activity/ service in itself, even without Preferential Location, and vice-versa.
Classification of PLS - HELD THAT:- The construction service is the construction simplicitor whether in respect of single or multiple dwelling units or residential or commercial buildings. In the Scheme of Classification, the service of provisioning of preferential location is not classified/ classifiable under construction service - the PLS service can be offered/ provided even after issue of CC/ OC i.e. at the time of selling of the immovable property and thus would fall beyond the scope of Construction Service.
Building Completion & Finishing Services - Heading: 9954/ Group 99547 - HELD THAT:- From the descriptions it is clear that the Preferential Location Service cannot be classified under this Group/ any of the above Accounting Codes.
Real Estate Services - Heading 9972 - HELD THAT:- From the description of entries under Real Estate Services it is clear that PLS would classify under Group 99722 and the SAC 997222 or 997223.
Classification of service - HELD THAT:- The most appropriate entry wherein the instant Service, viz. to be provided by M/s. DLF Ltd., is classifiable is Heading 9972, Group 99722 and Service Accounting Code (SAC) 997222 viz. “Building sales on a fee or commission basis or on contract basis”. Where the sale of a piece of land is being made as a 'stock in trade' the preferential location service shall classify under SAC 997223 viz., “Land sales on a fee or commission basis or on contract basis”.
Rate of GST - HELD THAT:- PLS classifies under SAC 997222 and attracts the rate of 18% (9% under CGST Act vide Entry (iii) under Column (3) against the Serial Number '16' of the Notification 1 1/2017-CT(R) dated 28.06.2017 as amended.
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2020 (9) TMI 1248
Permission of parking Drill Ship Aban Ice at Inner Anchorage Mumbai Port - removal of Drill Ship Aban Ice from Inner Anchorage Mumbai Port by the Applicant without intimation - HELD THAT:- It may be mentioned that on 26-04-2017 this Court had passed an order in the related writ petition directing that the petitioners would deploy the subject vessel for the contract and no activity including moving of the vessel beyond the limits of contractual stipulation would be undertaken. On such condition, statement made by Mr. Jetly, learned senior counsel, that no coercive measures would be initiated against the petitioners on the basis of order- in-original, was accepted.
The Drill Ship Aban Ice be permitted to park at Inner Anchorage, Mumbai Port - the interim application is disposed of.
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2020 (9) TMI 1247
Validity of Reopening of assessment u/s 147 v/s assessment u/s 153C - reliance on material/information was gathered during the course of search - HELD THAT:- Reopening of the assessment is contrary to the ratio decided in ARUN KUMAR KAPOOR [2012 (6) TMI 403 - ITAT AMRITSAR],M/S. SAURASHTRA COLOR TONES PVT. LTD [2020 (4) TMI 289 - ITAT DELHI] and G. KOTESWARA RAO AND OTHERS [2015 (12) TMI 1280 - ITAT VISAKHAPATNAM] wherein held when incriminating documents were found during the course of search, the same have been used in the case of the assessee-company. The proper course the A.O. should have adopted is to proceed against the assessee-company under section 153C of the I.T. Act instead of recording reasons for reopening of the assessment under section 147/148 Moreover, the Revenue has not brought to my notice any other binding precedents to take a contrary view.
Second objection of the assessee that the assessee was not provided cross examination - It is not in dispute that the information was gathered at the premises of the 3rd party addition is based upon the statement of the 3rd party. This fact is not rebutted by the revenue, therefore, in my considered view the assessee ought to have been provided opportunity of cross examination. The Assessing Officer purely based his finding on the statement made by third party and data recovered from third party - not providing opportunity of cross examination is ex-facie contrary to the principles of natural justice, therefore, on this ground also assessment so framed is against settled principles of law. In view of the above, hereby quash the assessment order being contrary to judicial pronouncements. The AO is directed to delete the impugned addition.
Appeal filed by the assessee is allowed.
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2020 (9) TMI 1246
Input Tax Credit - GST charged by vendor for Canteen services availed by for its employees - levy of GST on distribution of Coupons among employees - classification of services - Is it correct to determine the fair market value of coupons, based on the rate charged to employees? - ITC on gift items for business promotion.
Canteen services - HELD THAT:- No-profit and mandatory services being provided under legal obligation are tied to the employer's obligation towards the employees. These services, we find, are uniformly available to all the employees and are not restricted to any class of employees. These canteen services are, therefore, available to the employees essentially as a facility in the course of their employment. These are akin to facilities like uniform, safe-environs and first-aid - a provisioning of canteen service to employees is not a taxable activity chargeable to GST.
Is it correct to determine the fair market value of coupons, based on the rate charged to employees? - HELD THAT:- The activity itself being outside the tax net, there is no need for the valuation of the same for taxation purposes.
Whether company is eligible to take Input Tax Credit on GST charged by vendor for Canteen services availed by it for its employees? - HELD THAT:- The provisions of sub-Section 17(5)(b) have since been amended w.e.f. 1.02.2019 - the substitution w.e.f. 1.02.2019 has imparted clarity to the relevant provisions of Section 17(5). After the substitution, it is now clear that Input Tax Credit on the 'Food and Beverage' services are available only where the registered person is making an outward taxable supply of the same category of goods or services.
The benefit of the proviso to sub-Section 17(5) “Provided that the input tax credit in respect of such goods or services or both shall be available, where it is obligatory for an employer to provide the same to its employees under any law for the time being in force. “ has been made available only to the activity of “(Ui) travel benefits extended to employees on vacation such as leave or home travel concession”. The same is not available to the canteen service/ (supply of Food and Beverages as a service) - thus, the Input Tax Credit is not admissible to the Applicant.
Canteen Facility - Whether company is eligible to take Input Tax Credit on GST charged by vendor for Canteen services availed by it for its employees? - HELD THAT:- No. Company M/s. Musashi Auto Parts India Private Limited is not eligible to Input Tax Credit on the GST charged by vendor, for Canteen services availed by it and provided to its employees.
Whether distribution of Coupons among employees attracts GST liability? If yes, under which SAC (Services Accounting Code) tax shall be deducted? - HELD THAT:- No. Distribution of Coupons among employees does not attract GST liability.
Gift items - Whether company is eligible to take ITC on such business promotion expenses or not? - HELD THAT:- The ITC is admissible subject to the restrictions provided under Section 17 of the GST Acts. It is observed that sub-Section 17(5), clause (g) clearly forbids ITC admissibility on the items of personal consumption - thus it is clear that the ITC cannot be taken by a taxable person on the items i.e. goods and services which are used for personal consumption. The items mentioned by the Appellant viz. Sweets; Dry fruits; Electronic Items and Gold & Silver Coins etc. are essentially being given to the relevant persons as items of personal use/ consumption. The ITC, thus, is not admissible on the same.
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2020 (9) TMI 1245
Classification of goods - Laboratory Reagent - classifiable under Tariff Heading 38220090 at S. No. 80 of the Schedule II, OR as Goods which are not specified in Schedule I, II, IV, V or VI” at SI. No. 453 of Schedule III under CGST Notification No. 1/2017-Central Tax (R) dated 28th June 2017? - HELD THAT:- A plain reading of the entry at Sr. No. 80 makes it clear that only the Diagnostic Kits and. Reagents of Chapter Heading 3822 have been placed under Schedule II which attracts a lower rate of GST viz. 12%.
From the Heading 3822 it is clear that the same applies to Diagnostic Reagents and also to Laboratory Reagents - it is found that as per Appellant's own submission their goods are 'Laboratory Reagents' and it is very clear from the Appellant's submissions that their goods are not Diagnostic Reagents, but are other laboratory reagents.
The thrust of the Appellant's submissions is that all the goods of the Heading 3822 have been described against entry 80. ibid and therefore their goods viz. 'Laboratory Reagents' are included therein. That, the word 'And' used in the description is meant to separate the 2 items viz. the 'Diagnostic kits', and the 'Reagents' - From a plain reading of the relevant entries 80 it appears that concessional rate of GST is applicable only to the 'Diagnostic kits and Reagents' and not to all the items covered under Heading 3822.
TRU Circular No. 163/ 19/2021-GST dated 6th October 2021 - HELD THAT:- The Circular clarifies that It is accordingly clarified that concessional GST rate of 12%o is applicable on all goods falling under heading 3822, vide Entry at S. No. 80 of Schedule II of notification No. 1/2017-Integrated Tax (Rate) dated 28.6.2017.
Thus, concessional GST rate of 12% is applicable on all goods falling under heading 3822, vide Entry at S.No. 80 of Schedule II of notification No. 1/2017-Integrated Tax (Rate) dated 28.6.2017, including to Laboratory Reagents being imported and supplied by the Appellant.
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2020 (9) TMI 1244
Liquidation process - validity of admission of claims of respondent Nos. 2 to 5 - HELD THAT:- Issue notice to the respondents and the applicant counsel shall collect the same from the Registry and send along with copy of the application and the entire paper book to the respondents by Speed Post immediately as well as at the e-mail address available and file affidavit of service along with postal receipt, tracking report and copy of e-mail within 10 days.
Issue notice to the respondents and the applicant counsel shall collect the same from the Registry and send along with copy of the application and the entire paper book to the respondents by Speed Post immediately as well as at the e-mail address available and file affidavit of service along with postal receipt, tracking report and copy of e-mail within 10 days.
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2020 (9) TMI 1243
Approval of the Resolution Plan which has been approved by the Committee of Creditors by a voting share of 82.75% - Section 60(5) and Sec 30 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- There is provision made to make payment of debt of the Operational Creditors. Mechanism is suggested for the management of the affairs of the Corporate Debtor. Mechanism is also provided for effective supervision and implementation of the plan - the resolution plan meets the requirements under section 30(2) of the Code.
The Resolution Plan as approved by the CoC Under Section 30(4) of the Code, meets the requirements, as referred to under Sub-Section (2) of Section 30 of the Code - the resolution plan is approved - application allowed.
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