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Showing 81 to 100 of 1551 Records
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2024 (2) TMI 1471
Admission of section 7 application - Appellant's locus standi to file the application - Initiationof insolvency proceedings fraudulently or with malicious intent for any other purpose other than for the resolution of insolvency of the Corporate Debtor.
First ground is that Appellant cannot question the order admitting Section 7 Application which has been affirmed by the Appellate Tribunal - HELD THAT:- It is on record that admission order was affirmed by this Tribunal by its Judgment and Order dated 06th January, 2023. But when we look into the prayers made in application, Appellant has not prayed for recall of the admission order rather the prayer was that Company Petition be dismissed and penalty be imposed under Section 65 and further to conduct enquiries regarding the collusion.
The power under Section 65 of the Code can be exercised by the Adjudicating Authority only after satisfying that grounds as mentioned exist, if the Adjudicating Authority come to the conclusion that insolvency proceedings have been initiated fraudulently or with malicious intent for any other purpose other than for the resolution of insolvency of the Corporate Debtor, it can impose penalty as provided in the provision. While exercising jurisdiction under Section 65, the Adjudicating Authority is also fully entitled to close CIRP process and pass all consequential order. The mere fact that Section 7 Application has been admitted does not denude the jurisdiction of the Adjudicating Authority to examine the application under Section 65 of the Code. The observations of the Adjudicating Authority are that the Appellant is opposing the admission of the proceeding which admission has been affirmed by the Appellate Tribunal. The above does not denude the jurisdiction of the Adjudicating Authority to examine the allegations made in the Section 65 Application even after admission of the proceedings under Section 7.
Locus of appellant - HELD THAT:- Appellant in the Application has given details of the facts, the transaction which is basis of financial debt by the Financial Creditor. The averments prima facie makes it a case for looking in to the allegations more closely and when such glaring facts have come to the Court, the Court need to examine the allegations. Moreso, Appellant’s case is that GGPPL which is also in CIRP, of which the Appellant admittedly is home-buyer has to receive amount from the Corporate Debtor which chance shall also be adversely affected due to commencement of CIRP of the Corporate Debtor. Thus in the facts of the present case, Appellant has locus to file the I.A. No. 4654 of 2023.
The Respondent submitted that Application have been filed belatedly at the stage when Resolution Plan of the Corporate Debtor is under consideration. The mere fact that Application has been filed at the time when plan is under consideration does not take away the jurisdiction of the Adjudicating Authority to consider the allegations and find out the truth, if any - It is well settled that when proceedings have been fraudulently initiated, the appropriate orders can be passed by Court.
The Adjudicating Authority committed error in rejecting the Application without considering the Application on its merit - Appeal disposed off.
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2024 (2) TMI 1470
Profiteering - construction service supplied by the Respondent - Respondent had not passed on the benefit of Input Tax Credit (ITC) to him by way of commensurate reduction in the price - contravention of Section 171 of the CGST Act, 2017 - HELD THAT:- Without going in to the other merits of the present case the Report dated 27.02.2023 furnished by the DGAP cannot be accepted, and accordingly, the DGAP is directed to further investigate the present case under Rule 133(4) of the CGST Rules, 2017 and recalculate the profiteered amount, if required. The Respondent is also directed to extend all necessary assistance to the DGAP and furnish him necessary documents or information as required during the course of further investigation of the present case.
Petition disposed off.
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2024 (2) TMI 1469
Review of Judgment and Order - error apparent on the face of the record or not - interest on delayed payment of turnover tax - HELD THAT:- Review jurisdiction is to be exercised in a very limited manner where there an is error apparent on the face of the record. This Court has considered each and every document and the submissions while rendering the Judgment HARBOUR HOTELS, MEENACHIL HOTELS AND RESORTS PVT. LTD., THE RIVER RETREAT - NILA RESORTS, MEADOWS INTERNATIONAL (A UNIT OF CHALAKUDY HOTELS PVT. LTD.), HOTEL ABAAM PEARL, PRANAMAM HOTELS AND RESORTS PVT. LTD., HOTEL HIGHWAY CASTLE, KMA RESORTS PVT. LTD, PUSHPAK GRANDE, M.K.R. ENTERPRISES, CORNICHE HOSPITALITY (P) LTD., M/S. HOTEL VIRAD, HOTEL SKY PARK, SPRINGDALE HOTELS PVT. LTD., M/S. J.K. RESIDENCY, SANTHOSH KUMAR N.P, JLT ENTERPRISES, HOTEL CINNAMON, VAZHAKKULAM HOTELS AND RESORTS PVT. LTD., PERUMBAVOOR HOTELS AND RESORTS PVT. LTD, JAIRAJ LODGE, HOTEL MERIYA VERSUS STATE OF KERALA, STATE TAX OFFICER-1, JOINT COMMISSIONER (APPEALS), DEPUTY COMMISSIONER OF STATE TAX, COMMISSIONER, KERALA STATE GST DEPARTMENT, ASSISTANT COMMISSIONER. (ARREAR RECOVERY) [2023 (11) TMI 1305 - KERALA HIGH COURT].
Furthermore, these documents were not part of the pleadings. Review does not mean rehearing or appeal. There has to be finality to a litigation. This Court, based on the submissions, documents and evidences, has rendered the Judgment sought to be reviewed. Therefore, there are no error apparent on the face of the record which warrants this Court to reconsider this Judgment under review.
There is no substance in this review petition and the same is here by dismissed.
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2024 (2) TMI 1468
Challenge to assessment order and the subsequent appellate order rejecting the appeal on the ground of limitation - HELD THAT:- The assessment order was communicated to the petitioner on 03.07.2023. Therefore, the statutory appeal should have been filed on or before 03.10.2023. The appellate authority has the power to extend time by a further period of one month, and such period expired on 03.11.2023. The admitted position is that the petitioner has remitted 10% of the disputed tax demand. The petitioner has also provided an explanation for the delay and has also stated that great prejudice would be caused if the matter is not adjudicated on merits.
Since the petitioner has remitted 10% of the disputed tax demand, the notice issued to the Karur Vysya Bank on 22.11.2023 and all proceedings pursuant thereto shall remain stayed pending disposal of the appeal.
Petition disposed off.
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2024 (2) TMI 1467
Challenge to summons issued under Section 70 of the Tamil Nadu Goods and Services Tax Act, 2017 - imposition of GST under the reverse charge mechanism on the seigniorage paid by the petitioner to the Government - HELD THAT:- Reliance placed on the recent judgment of the Division Bench of this Court in a batch of writ petitions, TVL. A. VENKATACHALAM VERSUS THE ASSISTANT COMMISSIONER (ST) [2024 (2) TMI 488 - MADRAS HIGH COURT] where it was held that 'It is made clear that there shall be no recovery of GST on royalty until the Nine Judge Constitution Bench takes a decision.'
In view of the above judgment, this petition is liable to be disposed of on the same terms.
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2024 (2) TMI 1466
Blocking of ITC invoking Rule 86A of the CGST Act - reasons to believe - business establishment of the appellant was not functioning at the registered place, as he declared - HELD THAT:- The appellant was provided the opportunity to produce the documents, if any, to show that his business establishment was functioning at the registered place and that he was actually conducting business therein. Even though the appellant produced a few documents, none of them show that he is physically occupying the building or conducting any business there. The electricity bill produced by the appellant shows that the consumption of electricity for the last month was zero. It is true that before giving Ext.P3, no explanation was sought from the appellant.
However, the appellant is allowed to produce documents showing his actual physical occupation of the building and running the business in it, but, he failed to produce the same.
In these circumstances, there are no reason to remit the matter to the respondents. The appeal fails, and accordingly, it is dismissed.
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2024 (2) TMI 1465
Maintainability of appeal - time limitation - Cancellation of registration pf petitioner - order for cancellation of registration has been passed without any application of mind - violation of principles of natural justice - HELD THAT:- In the present case, the facts are similar to one in Surendra Bahadur Singh's case [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT], wherein the appeal was barred by time under Section 107 of the Act. However, the Division Bench in Surendra Bahadur Singh's case took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice.
The orders impugned herein are liable to be set aside. Accordingly, the order in original dated June 10, 2022 and the appellate order dated July 27, 2023 are quashed and set aside. The petitioner is directed to file its reply to the show cause notice within three weeks from date and the adjudicating authority is directed to proceed de novo and pass order after granting opportunity of hearing to the petitioner.
Petition allowed.
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2024 (2) TMI 1464
Challenge to assessment order - impugned order was issued without issuing notice in Form GST ASMT-10 - reversal of credit - return was filed belatedly - HELD THAT:- The documents on record reveal that the impugned assessment order was issued after issuing intimation dated 20.02.2023 and show cause notice dated 18.07.2023. Thus, it appears that the petitioner was provided an opportunity to contest the tax demand, but failed to do so. The impugned order was issued on 27.09.2023. Consequently, the period of limitation would ordinarily expire on 26.12.2023. The appellate authority has the power to condone a further 30 days' delay. Such period ended on or about 26.01.2024.
Given the fact that the delay beyond such period is only about 15 days, this writ petition is disposed of by directing the appellate authority to receive and dispose of the appeal on merits, if such appeal is filed by the petitioner within a maximum period of ten days from the date of receipt of a copy of this order.
Petition disposed off.
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2024 (2) TMI 1463
Challenge to notice issued in Form GST ASMT-10, dated 14.08.2020 - HELD THAT:- Merely because representations from the Tamil Nadu Kerosene Dealers Association for exemption from GST and exemption from TDS are pending consideration, the petitioner cannot evade the obligation to respond to a notice alleging discrepancies in returns filed by the petitioner.
The petition is disposed of by permitting the petitioner to file a reply to the notice in Form GST ASMT-10 within a period of two weeks from the date of receipt of a copy of this order.
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2024 (2) TMI 1462
Challenge to assessment order and proceedings - errors in assessment order including incorrect tax computation and penalty imposition - HELD THAT:- The tax invoice dated 19.09.2018 reveals that the taxable value of supply was Rs. 7,94,294/- and that the gross value was Rs. 9,38,447/-. On comparing this with the impugned assessment order, it is evident that tax liability has been imposed on twice the gross value of Rs. 9,38,447/-. In light of the fact that tax was paid on such invoice, even assuming that there is tax liability in respect of the second e-way bill, the manner of computation of tax in the impugned assessment order is completely unsustainable - it is evident from the table at the penultimate page of the assessment order and the show cause notice that the proposed penalty was Rs. 50,676/-. The abstract of demand on the last page of the assessment order, however, shows that the penalty demand is for a sum of Rs. 1,68,920/-. On account of this discrepancy also, the impugned assessment order cannot be sustained.
It is found that the tax demand proposed in the show cause notice is the same as the confirmed demand in the assessment order. Therefore, upon remand, it becomes necessary for the first respondent to initiate fresh proceedings from the show cause notice stage
The impugned assessment order is quashed. As a corollary, the matter is remanded. It is open to the first respondent to re-commence proceedings by issuing a fresh show cause notice - Petition disposed off.
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2024 (2) TMI 1461
Challenge to assessment order - reversal of the alleged excess Input Tax Credit (ITC) claim - HELD THAT:- It is noticeable that the observation in respect of discrepancy 1 is confined to the reversal of the ITC claim of Rs. 20,04,676/-. In contrast, in the abstract at internal page 16, the SGST dues of Rs. 4,09,63,596/- are specified. Similarly, on comparing the observations in respect of discrepancies 7 to 20, at internal page 15 and 16 of the impugned order, with the article at pages 151 to 153 of the typed set, it is evident that the observations are lifted straight from the article. In these circumstances, the impugned order is unsustainable.
The impugned assessment order is quashed. As a corollary, the matter is remanded for re-consideration. After providing a reasonable opportunity to the petitioner, including a personal hearing, the assessing officer is directed to issue a fresh assessment order with in a period of two months from the date of receipt of a copy of this order - Petition disposed off by way of remand.
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2024 (2) TMI 1460
Challenge to order of appropriation - it was held by High Court that 'There is nothing on record to even remotely suggest that the dues towards Responsive Industries Ltd. was more than Rs. 5 crores. It is also not disputed that Responsive Industries Ltd. has deposited Rs. 5 crores with the department. The amount which is lying in excess with the department was appropriated for the dues of the sister concern – Axiom Cordages Ltd. No provision of law has been pointed out that the same is not permissible.' - HELD THAT:- It is not required to interfere with the impugned judgment and order passed by the High Court. Hence, the Special Leave Petition is dismissed.
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2024 (2) TMI 1459
Maintainability of petition - availability of statutory remedy of appeal - non-constitution of the Tribunal - HELD THAT:- The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office.
The writ petition stands disposed of.
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2024 (2) TMI 1458
Levy of penalty u/s 122 read with sections 130, 130(1) and 130(2) of the Odisha Goods and Services Tax Act, 2017 - violation of principle sof natural justice - HELD THAT:- Without expressing any opinion on learned Senior Counsel’s contention, this writ application is disposed off with liberty to the petitioner to prefer an appeal before the appellate authority. Learned Senior Counsel has vehemently argued that if the appeal is not expeditiously decided there is every likelihood of the goods being disposed of under section 130(7) of the Act which will be to detriment of the appellant’s interest and will seriously prejudice his cause.
The appellate authority shall ensure expeditious disposal of the petitioner’s appeal if it is filed within a week from today. The petitioner shall be at liberty to seek any interim order before the appellate authority during the pendency of the appeal.
Petition disposed off.
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2024 (2) TMI 1457
Remission of transitional credit - time limitation - HELD THAT:- The present writ petition is disposed of with liberty to the petitioner to manually file an appeal against the impugned order in Ext.P8 within a period of fifteen days from today. If such an appeal is filed, the same shall be considered in accordance with the law expeditiously, without going into the question of limitation. The Appellate Authority shall verify from the State Tax Officer whether the petitioner is entitled to transitional credit of SGST of Rs. 1,55,074/- for which they had valid evidence for payment of VAT of the same amount.
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2024 (2) TMI 1456
Maintainability of petition - availability of alternative remedy - Challenge to Assessment Order for the assessment tax period April, 2020 to March, 2021 - HELD THAT:- Essentially, the petitioner challenges the Assessment Order dated 03.06.2023 passed by the respondent No.4 for the assessment tax period April, 2020 to March, 2021. Since the petitioner has an efficacious and alternative remedy of preferring appeal under the GST Act, it is deemed apposite to give liberty to the petitioner to prefer an appeal within the time specified by this Court.
This Writ Petition is disposed of giving liberty to the petitioner to file an appeal against the impugned Assessment Order within two (2) weeks from the date of receipt of a copy of this order, in which case, the concerned Appellate Authority shall admit the appeal and after affording an opportunity of hearing to the both parties, pass appropriate order on merits in accordance with law.
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2024 (2) TMI 1455
High Pitched service tax demand - differential figures appearing in the Trial Balance and ST-3 returns - short payment of service tax - difference in the two set of figures represent the value of taxable services on which due service tax had not been paid - invocation of extended period of limitation and penalty under Section 78 of the Finance Act 1994
HELD THAT:- It is a settled principle of law that service tax can be levied only when there is clear identification of a service provider, service recipient and consideration paid for the same. In the absence of any such evidence of the service recipient and the service provided, service tax cannot be demanded and confirmed. For this reason, it is not open for the Department to raise demands on the basis of other statutory returns or balance sheets without proving that such service has been rendered by the appellant and consideration thereof has been received.
ribunal in a catena of decisions has held that it is well settled law that no demand can be confirmed by comparing the ST -3 returns with balance sheet figures, in the absence of any evidence to the contrary that income in the balance sheet, if excess, reflects the provision of taxable service. As it is the Revenue authorities who have made the allegations of on payment of tax, and as such, the onus to prove the said allegation lies with them to substantiate the allegations.
In the case of SBI Life Insurance Company Limited [2024 (1) TMI 1161 - CESTAT MUMBAI] Tribunal held that demand/penalty on the basis of difference between ST-3 Returns and Income tax returns of any period, without further examination to establish that the difference is on account consideration received towards discharge of services, cannot be sustained.
Thus, hold that mere difference in figures appearing in the trial balance as compared to the ST –3 returns without any corroborative evidence that taxable services had indeed been provided by the appellant cannot be upheld.
It is a fact on record that the appellant was filing his ST-3 returns regularly. The Department did not raise any query or seek any clarification from the appellant. Thereafter, merely on the basis of audit observation as per the figures of Trial Balance, the Revenue, cannot, at this stage allege suppression. Assessee appeal allowed.
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2024 (2) TMI 1454
Entitlement to treaty benefits of India- Mauritius DTAA - whether scheme of arrangement employed by assessee is a tax avoidance through treaty shopping mechanism? - Whether the ITAT has erred in law by holding that treaty the benefits of India-Mauritius DTAA are available to assessee especially when it is clear from the arrangement that assessee Company is just a conduit and not a beneficial owner of income?
HELD THAT:- As held by ITAT The facts and materials available on record clearly establish that not only the assessee is a resident of Mauritius, but being a beneficial owner of the income derived from sale of shares, is entitled to the treaty benefits. Undisputedly, the shares sold by the assessee in the year under consideration were acquired in the year 2009, much prior to 01.04.2017.
Therefore, the provisions of Article 13(3A) of the tax treaty would not be applicable. That being the case, the capital gain derived by the assessee from sale of shares would fall within the ambit of article 13(4) of the tax treaty. In that view of the matter, the capital gain, being exempt under the treaty provisions, cannot be brought to tax in India. Therefore, we direct the Assessing Officer to delete the addition. These grounds are allowed.
As would be manifest from a reading of the order impugned before us, the ITAT has essentially based its conclusions on the valid Tax Residency Certificate [‘TRC’] which was held by the assessee and the following principles as laid down by this Court in Blackstone Capital Partners [2023 (2) TMI 35 - DELHI HIGH COURT] wherein held that Revenue cannot go behind the tax residency certificate issued by the other tax jurisdiction as the same is sufficient evidence to claim treaty eligibility, residence status, legal ownership and accordingly there is no capital gain earned by the petitioner liable to tax in India. Even the clarificatory press release dated March 1, 2013 issued by the Finance Ministry pursuant to the 2013 amendment makes it clear that a tax residency certificate is to be accepted and the tax authorities cannot go behind it. No substantial question of law.
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2024 (2) TMI 1453
Maintainability of petition - availability of statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act - non-constitution of the Tribunal - HELD THAT:- Due to non-constitution of the Tribunal, the petitioner is deprived of his statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act - the petitioner is also prevented from availing the benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the B.G.S.T Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112.
The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office.
The instant writ petition is disposed off subject to deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act. The petitioner cannot be deprived of the benefit, due to nonconstitution of the Tribunal by the respondents themselves.
Petition disposed off.
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2024 (2) TMI 1452
Seeking to quash the notice of SCN under Annexure-3, referring to earlier notice of show-cause - HELD THAT:- The present writ petition has been filed on 30.01.2024 and what has happened on 10.11.2023 and thereafter, nothing has been mentioned in the writ petition. In any case, against the notice of show-cause, this Court is not inclined to entertain this writ petition. However, liberty is granted to the petitioner to approach the appropriate forum.
The writ petition stands disposed of granting liberty as aforesaid.
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