|
Advanced Search Options
Case Laws
Showing 81 to 100 of 1415 Records
-
2023 (4) TMI 1336
Validity of reassessment orders u/s 148A(d) - taxability of the buyout of shares and interest received on the aforesaid amount - HELD THAT:- Identical challenge in M/s. Satluj Credit & Holdings Private Limited rep. By its Director Prasanna Natarajan Versus Income Tax Officer, Corporate Ward 6 (1) , Chennai, The Principal Commissioner of Income Tax, Chennai
[2023 (5) TMI 224 - MADRAS HIGH COURT] have dismissed the Writ Petition as held that assessing authority has rightly concluded that there is no capital gains that arises from the transaction since the entire transaction was a buyout of shares by virtue of order of the Apex Court. The officer, in this regard refers to the statement of the Apex Court that the transaction 'does not amount to shares being transferred inter vivos, nor can the payment for the shares be treated as deemed dividend'. Thus the clear inference that the officer has arrived at, is that there can be no instance of capital gain tax nor any levy under Section 2 (22) (e) of the Act dealing with deemed
As pointed out that the receipt itself has not been held to be exempt, we see nothing untoward in the assessing authority having come to the aforesaid prima facie conclusion under the impugned order that there is escapement of income. This legal issue is to be decided by the assessing authority after detailed consideration of the petitioner's arguments in assessment and the matter is preliminary at this juncture.
On the liability to interest on the sum it is a timing difference, and the officer prima facie believes that the interest must be taxed in AY 2019-20 relatable to the year when the order was passed by the Apex Court on the ground of accrual. Though the petitioner would suggest that the receipt had been delayed and it only after a few years that the amounts had been received, such submission involves the appreciation of facts and are best considered by the authorities.
The argument of petitioner to the effect that the taxability of the receipt has not been put to it in the showcause notice is also devoid of merit, since the assessing authority has raised these issues specifically in the penultimate paragraph of the Annexure to notice under Section 148A(b). A notice under Section 148A(b) is not expected to be as detailed as order of assessment and it would suffice that the issue on the basis of which the reassessment is proposed is outlined broadly therein. It is for the assessee/petitioner to respond on all aspects of the matter and seek clarifications, where it so requires.
In light of the aforesaid submission, the same order is taken to be passed in these matters as well.These Writ Petitions are dismissed.
-
2023 (4) TMI 1335
Dishonour of Cheque - petitioner sought to give evidence on affidavit under Section 315 Cr.P.C read with Section 145(2) of N.I. Act - HELD THAT:- The Hon'ble Apex Court in Indian Bank Association and others [2014 (5) TMI 750 - SUPREME COURT], has only issued certain directions for speedy disposal of cases under Section 138 of Negotiable Instruments Act and it has nowhere been held that an accused can give his evidence on affidavit. Moreover, the trial court has already mentioned that the petitioner may examine himself as a defence witness but the petitioner wants to give evidence on affidavit, which seems only to delay the matter.
There are no illegality or perversity in the impugned orders - petition dismissed.
-
2023 (4) TMI 1334
Condonation of inordinate delay of 534 days in filing appeal - sufficient cause for delay or not - it was held by High Court that This Court, therefore, is of the considered view that the reason assigned for condoning the 534 days delay in filing the appeal, cannot be said to be sufficient explanation to condone the delay - HELD THAT:- There are no reason to interfere with the impugned judgments and orders passed by the High Court.
The special leave petitions are, accordingly, dismissed.
-
2023 (4) TMI 1333
Denial of Foreign Tax Credit (FTC) u/s. 90 - appellant has failed to file the return of income for A.Y. 2019-20 as well as Form 67 within the due date of filing of return of income - amount of relief claimed as per revised return of income e-filed and not filed the same while filing the original return of income - HELD THAT:- As assessee has filed Form-67 by filing revised return of income and not at the time of original return of income., similar issue in the case of Sonakshi Sinha [2022 (10) TMI 107 - ITAT MUMBAI] and decided the issue in favour of the assessee as held it is well settled that while laying down a particular procedure, if no negative or adverse consequences are contemplated for non-adherence to such procedure, the relevant provision is normally not taken to be mandatory and is considered to be purely directory. Admittedly, Rule 128 does not prescribe denial of credit of FTC. Further the Act i.e. section 90 or 91 also do not prescribe timeline for filing of such declaration on or before due date of filing of ROI.
Assessee is eligible for foreign tax credit, as she has filed form number 67 before completion of the assessment, though not in accordance with rule 128 (9) of The Income Tax Rules, which provided that such form shall be filed on or before the due date of filing of the return of income. Decided in favour of assessee.
-
2023 (4) TMI 1332
Seeking permission to furnish a bank guarantee in lieu of and in replacement of the proposed confiscation - HELD THAT:- It is not required to accept any bank guarantee.
In the order relied upon by the petitioner passed in the case of Esskay Properties and Investment Private Limited [2022 (9) TMI 1592 - SC ORDER], the offer made by the petitioner therein to furnish a bank guarantee was not accepted, rather, a direction was issued to furnish a fixed deposit receipt of a nationalized bank of the entire amount with a lien in favour of CBI and the enforcement directorate, as a pre-condition for lifting the attachment of the properties.
It is directed that in case the petitioner furnishes a fixed deposit receipt of a nationalized bank for a sum of Rs. 1,72,40,951/- with a lien in favour of the CBI and the enforcement directorate within a period of two weeks from today, the attachment of all the properties vide provisional attachment order dated 29.06.2018 by the enforcement directorate shall be lifted.
Application disposed off.
-
2023 (4) TMI 1331
Addition on a protective basis - addition being protective addition on account of cash received against booking of shops in Kunj Mall - “substantive assessments” in the hands of M/s Kunj Infrastructure Private Limited have itself been deleted by the ITAT [2019 (10) TMI 1588 - ITAT AHMEDABAD] - HELD THAT:- Since the “substantive addition” have been deleted by the ITAT, Ahmedabad in the hands of M/s Kunj Infrastructure Private Limited, respectfully following view taken by various Courts in various decisions on this issue referred to above, we are of the considered view that the additions made in the hands of the assessee on “protective basis” cannot sustain once the additions made on “substantive basis” have been deleted. Appeal of the assessee is allowed.
-
2023 (4) TMI 1330
Jurisdiction of High Court in quashing proceedings and discharging the accused - exercise of the limited powers u/s 482 CrPC - Offence punishable under Sections 452, 323, 365, 342, 225, 186, 506, 120-B IPC - HELD THAT:- As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers u/s 482 CrPC, the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution / investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution / investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers u/s 482 CrPC, the Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”.
High Court has erred in observing at this stage that the initiation of the criminal proceedings / proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.
Thus, present appeals succeed. The impugned common judgment and order passed by the High Court quashing and setting aside the criminal proceedings against the accused Aryan Singh and Gautam Cheema is/are quashed and set aside. The accused to face the trial for which they are chargesheeted.
Considering the fact that the allegations in the FIR relates back to the year 2014 and as more than eight years have passed, we direct the learned Trial Court to conclude the trial at the earliest.
Present appeals are allowed accordingly.
-
2023 (4) TMI 1329
Demand for service tax - Construction services - supply of materials - Services categorized as Erection and Commissioning instead of Works Contract - HELD THAT:- It is seen that on a similar issue the Coordinate Bench of the Chennai in the case of Real Value Promoters Pvt Ltd [2018 (9) TMI 1149 - CESTAT CHENNAI] has held that even for the period subsequent to June 2007, if a Show-Cause Notice is issued demanding Service Tax under another heading whereas the service pertains to Works Contract, the same does not survive.
In this case, the demand is confirmed under Erection, Commissioning and Installation Services, whereas admittedly the appellant has undertaken Works Contract service. Hence the decision of Real Value Promoters Pvt Ltd [2018 (9) TMI 1149 - CESTAT CHENNAI] is squarely applicable. Accordingly, the confirmed demand for the month of June 2007 is set aside.
The appeal is allowed with consequential relief if any.
-
2023 (4) TMI 1328
CENVAT Credit on Clean Energy Cess - Levy of penalty - HELD THAT:- This Tribunal in the case of DECCAN CEMENTS LTD, M/S BHARATHI CEMENT CORPORATION PVT LTD, M/S ZUARI CEMENT LTD, M/S PENNA CEMENT INDUSTRIES LTD UNIT IV, I, M/S RAIN CEMENTS LTD VERSUS COMMISSIONER OF CENTRAL TAX, RANGAREDDY, TIRUPATI – GST, COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, NELLORE, TIRUPATI [2019 (7) TMI 764 - CESTAT HYDERABAD] has gone into the issue as to whether the Appellants are eligible to take the CENVAT Credit on Clean Energy Cess. The Tribunal has held 'As far as the imposition of penalties are concerned, we find that this is an interpretational issue and it is possible for the assessees to have held a genuine belief that they are entitled for Cenvat credit of CEC and hence have taken Cenvat credit.'
The Appeal filed by the Appellant in respect of Rs. 5,30,11,207/- taken by them as CENVAT Credit for the Clean Energy Cess is dismissed. The Appeal in respect of CENVAT Credit taken on Clean Energy Cess of Rs. 5,30,11,207/- and Rs. 2,92,50,364/- is rejected. The penalty of Rs. 10 lakhs and Rs. 1 lakh imposed stands set aside.
Appeal allowed in part.
-
2023 (4) TMI 1327
Valuation of Excise Duty - inclusion of charges paid to RITES and finally reimbursed to the Appellant by the buyer is includable in the Assessable Value or not - Levy of Excise Duty on sale of metal scrap.
Valuation of Excise Duty - inclusion of charges paid to RITES and finally reimbursed to the Appellant by the buyer is includable in the Assessable Value or not - HELD THAT:- On going through the case law of HINDUSTAN DEVELOPMENT CORPORATION LTD. VERSUS CCE., CALCUTTA [1995 (3) TMI 276 - CEGAT, NEW DELHI] cited by the Learned Counsel, it is seen that in that case the amount was being paid by Railways to Rail India directly, whereas in the present case, the amount was being paid to RITES by the Appellant which was subsequently being reimbursed by the buyers. Therefore the facts are not similar or identical.
So far as the Supreme Court’s decision in the case of COMMISSIONER OF CENTRAL EXCISE, MYSORE VERSUS M/S TVS MOTORS COMPANY LTD. [2015 (12) TMI 874 - SUPREME COURT], is concerned, it is seen that the issue before the Hon’ble Supreme Court was on account of pre delivery inspection and in respect of after sale service charges, which are different from the mandatory inspection fee paid by the Appellant in the present case.
It would be observed that the Hon’ble Tribunal has also considered the earlier decision in the case of Hindustan Development Corporation Ltd., and has distinguished the case on the ground when the inspection is carried on account of mandatory requirement, the value of the same would be included whereas if the inspection carried out is optional, the value of the same is not required to be included in the Assessable Value.
Levy of Excise Duty on sale of metal scrap - HELD THAT:- It has been held in catena of decisions that marketability alone is not sufficient to levy the Excise Duty but proper manufacture in terms of Section 2(f) of the Central Excise Act, 1944 should have taken place. Further, it has been held that scrap is a necessary byproduct when the manufacture takes place and accordingly it has been held that Excise duty cannot be demanded on sale of such scrap. Even in this case, going by the facts presented, it is seen that what is sold is only a metal scrap arising in the course of manufacture of their finished goods. Accordingly, the Appeal is allowed in respect of confirmed demand of Rs. 4,318/-.
Appeal allowed in part.
-
2023 (4) TMI 1326
Interpretation of statute - Note 2(a) of the General Rules of Interpretation - Classification of goods - sub-assemblies/parts of CTVS (Colour Television Sets) - it was held by CESTAT that 'in view of Rule 1, sub-assemblies and parts cleared by the appellant are to be classified under Heading 85.29 only. Once the goods are classifiable under a particular Heading by application of the Headings and relevant section and chapter notes, the classification cannot be altered by taking recourse to the Interpretative Rules' - HELD THAT:- This Court is of the opinion that no substantial question of law arises, in regard to interpretation of Note 2(a) of the General Rules of Interpretation as is urged by the revenue.
Appeal dismissed.
-
2023 (4) TMI 1325
Classification of services - Cargo Handling Services or not - movement of goods from the premises of M/s Essar Steel Ltd. to Essar Steel Ltd.‟s Depot/ Job workers/ premises of their customers - Demand of service tax - Cargo Handling Service - sea freight and rail freight components - Extended period of Limitation - Suppression of facts or not.
Classification of services - Cargo Handling Services or not - movement of goods from the premises of M/s Essar Steel Ltd. to Essar Steel Ltd.‟s Depot/ Job workers/ premises of their customers - HELD THAT:- The statutory definition of cargo handling service makes it clear that loading, unloading, handling of cargo for all modes of transport and any other service incidental to freight would be covered by the definition of “cargo handling”. The definition also very clearly specifies that mere transportation of goods will not be considered as cargo handling service. The definition itself clarifies that if the activity is only of transportation, then the said activity cannot be called as cargo handling service.
The activities undertaken by the appellants under the disputed contract and discussed by the Learned Commissioner in impugned order primarily involves transportation of goods via Road/ Rail/ Sea. The activities incidentally even if involve some loading and unloading of goods while carrying out the principal activities under the contracts, such incidental activities of loading and unloading undertaken by the appellant cannot give the entire contracted activities the character of „cargo handling services‟. As such, the activities undertaken by the Appellant are primarily in the nature of transportation. Also, this Tribunal in COMMISSIONER OF SERVICE TAX, RANCHI VERSUS M/S HEC LTD. [2018 (3) TMI 19 - CESTAT KOLKATA] on a similar issue has held that 'The activities carried out by the assessee-respondents are primarily transportation of goods and loading & unloading, etc., which are incidental to the transportation of goods. Such activities cannot be covered within the services of „Cargo Handling‟ as has been rightly held by the lower authorities.'
Demand of service tax - Cargo Handling Service - sea freight and rail freight components - HELD THAT:- In the present matter revenue could not satisfactorily establish that the disputed activity of appellant is covered under the head of “Cargo Handling Service” - the impugned order passed by the Commissioner deserves to be set aside.
Extended period of Limitation - Suppression of facts or not - HELD THAT:- There is no suppression or wilful misstatement on the part of the Appellant. The Appellant in the present matter also provided all the details/documents/records related to the disputed activity before department, which were statutorily maintained and existed all the time as per statutory requirement under the various taxation laws such as Income Tax, Companies Act etc. In these circumstances charge of suppression or wilful misstatement does not survive against the Appellant. Thus extended period of limitation is also not invokable in the present matter.
The impugned order is set aside - appeal allowed.
-
2023 (4) TMI 1324
Reopening of assessment u/s 147 - investments made towards purchase of immovable property - respondent never provided a separate copy of reasons recorded and also the sanction letter duly approved by the Principal CIT for re-assessing the case of the petitioner-assessee - HELD THAT:- With respect to the assessment order for the year 2015-16, the assessment proceedings have been completed now and no adverse order with respect to the investment made as per the sale deed has been passed.
Since, the income tax for the year 2015-16 has also undergone the process of revision and the claim of petitioner with respect to the investment made on the cost of investment in the property has been accepted, no case is made out to re-open the assessment proceedings of the year 2014-15 on the same ground.
Keeping in view the fact that for the income tax return for the year 2014-15, there was no concealment of income made by the assessee relating to investment in property at Panchsheel Park, New Delhi, the present writ petition is allowed.
-
2023 (4) TMI 1323
Income from Other Sources u/s 56(2) - interest received u/Sec. 28 of the Land Acquisition Act, 1894 - assessee’s case before us is that such an interest income is part of the land acquisition compensation itself and not taxable - HELD THAT:- It transpires that the instant issue of taxability of the assessee’s interest income received under section 28 of the Act is covered in assessee’s favour as per the hon’ble high court’s Bombay bench Shri Rupesh Rashmikant Shah Versus Union of India & Ors. [2019 (8) TMI 518 - BOMBAY HIGH COURT] holding that the same is not taxable under section 56(2)(viii) of the Act as against the Revenue’s contentions that the Aurangabad bench of the very hon’ble jurisdictional high court has taken a divergent view against the taxpayer in Shivajirao and Others Vs. State [2013 (8) TMI 1160 - BOMBAY HIGH COURT]
Faced with the situation, we are of the opinion that it is the Bombay and not Aurangabad bench of the hon’ble jurisdictional high court whose decision would prevail in the given facts and circumstances as the assessee, his land/capital asset forming subject matter of compulsory acquisition as well as “situs” of the Assessing Officer who has framed assessment before us are covered within its territorial jurisdiction notified from time to time. We thus quote PCIT Vs. ABC Paper Limited [2022 (8) TMI 863 - SUPREME COURT] and decide the instant sole substantive ground as well as the main appeal is assessee’s favour.
-
2023 (4) TMI 1322
TP Adjustment - ALP of royalty and branding fees - TPO has determined ALP at 'Nil' holding that for any such transactions, no brand fee is paid by any independent enterprise and assessee has used TNMM method for computing the arm's length price by comparing the net profit margin of the company at entity level with that of the other permanent entities - HELD THAT:- We find that this issue has been dealt by the Tribunal in A.Y.2002-03 in [2013 (11) TMI 927 - ITAT MUMBAI] as held in the broking business, brand does promote the business and as rightly observed by CIT(A) it is one of the profit drivers within the industry. Thus it cannot be said that the assessee had not derived any benefit from use of brand. We also find that the AO without any detailed examination as to why other CLSA entities were not making any payment of royalty, rushed to apply the CUP method which as we have held could not be applied for the lack of proper information. CIT(A) has examined the matter in detail as to why other CLSS entities were not paying royalty which was because of the fact that CLSA had different arrangement in different jurisdictions. CLSA was present in 13 markets out of which India, Korea and Taiwan had capital market regulation which required FIIs to contract directly with a domestic CLSA entity. In other jurisdictions, a single contract model was followed
CIT(A) on examination of the arrangement/system followed by CLSA BV has also given a finding that in other jurisdictions, CLSA entities were making market contributions. Therefore only on the ground that other CLSA units did not pay any royalty, it could not be held that payment of royalty by the assessee was not justified. 8.4 CIT(A) has also examined the business development system followed by other comparable companies in India and has given a finding that these companies on average were incurring business development expenditure which was 6.4% of brokerage turnover whereas similar expenditure incurred by the assessee was only 1.28% including royalty of 1% paid by the assessee. Therefore expenditure incurred by the assessee on royalty and business development could not be considered as excessive compared to the comparable parties.
Thus apart from that, similar observation and finding has been given in A.Y.2003-04 [2020 (12) TMI 815 - ITAT MUMBAI] Thus, consistent with view taken in the earlier years, the royalty payment of 1% is accepted and adjustment made by the ld. TPO is deleted.
Benchmarking referral fees and reimbursement of indirect overhead expenses - Assessee has benchmarked both payment of referral fees and reimbursement of indirect overhead expenses by using TNMM as the Most Appropriate Method and concluded that they are at ALP. The assessee has justified that sale efforts, research activities and IT infrastructure are the main functions responsible for earning of brokerage income from clients. Accordingly, payment of referral fees and indirect overhead expenses reimbursement is closely inter linked to the assessee's business and therefore, was benchmarked using TNMM by considering assessee as a tested party. TPO cannot benchmark the 'referral fee' at Nil and accordingly, adjustment made by the ld. TPO is deleted on similar reasoning. Accordingly, grounds are allowed.
Indirect overhead expenditure - again this issue is covered by the assessee's own case for A.Y.2003-04, [2020 (12) TMI 815 - ITAT MUMBAI] wherein it has been held that ad-hoc TP addition without following any one of the prescribed method is not sustainable which has been discussed in detail in para 19 of the ITAT order cited supra. Apart from that, we find that the assessee has benchmarked the transaction using TNMM, which is one of the prescribed methods as per Section 92C. Further, the assessee has also provided a supplementary and detailed analysis by way of the AUP report which certifies that only costs attributable to the assessee have been reimbursed to the AE.
Against the scientific approach adopted by the assessee, the ld. TPO has merely resorted to ad-hoc approach and without following any one of the prescribed methods determined ALP of reimbursement of indirect expense overheads as Nil. Thus, the addition of this adjustment made on account of reimbursement of indirect overhead expense is also directed to be deleted. - Decided in favour of assessee.
-
2023 (4) TMI 1321
Classification of goods - hook and eye for brassieres - whether classified under CTH 83081010 as claimed by the appellant or under CTH 62129090 as part of brassieres as arrived at by the assessing officer? - Tribunal held that the appellants have successfully demonstrated that the import documents describe the product to be ‘Hooks and eye’ for the Brassieres; other importers are also claiming the classification under the same heading - Such overwhelming evidence cannot be overlooked - the impugned goods are rightly classifiable CTH 83081010 - HELD THAT:- The civil appeal is dismissed on the ground of delay as well as on merits.
-
2023 (4) TMI 1320
Cancellation of bail granted - mens rea for committing the crime punishable under Sections 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 - fulfilment of conditions of Section 43D of the said Act - HELD THAT:- The provisions of Section 43D (5) of the said Act have been considered by this Court in the case of Thwaha Fasal [2021 (10) TMI 1430 - SUPREME COURT]. The Court, after reproducing the provisions of Section 43D (5) and after considering the judgment of this Court in the cases of National Investigation Agency v. Zahoor Ahmad Shah Watali [2019 (4) TMI 2023 - SUPREME COURT] and Ranjitsing Brahhmajeetsing Sharma v. State of Maharashtra and Another [2005 (4) TMI 566 - SUPREME COURT], held that while deciding a bail petition filed by the accused against whom offences under Chapter IV and VI of the said Act have been made, the Court has to consider as to whether there are reasonable grounds for believing that the accusation against the accused is prima facie true.
The additional requirement, as provided under subsection (5) of Section 43D of the said Act is twin. The first one being that the public prosecutor has to be given an opportunity of being heard. The second one, that the Court is of the opinion that there are reasonable grounds for believing that the accusation against such a person is prima facie true.
Undisputedly, in the present case, the first requirement has been complied with. Insofar as the second requirement with regard to Court arriving at a satisfaction that the accusation against such persons is prima facie true is concerned, it is not required to go into the elaborate discussion of the evidence, inasmuch as that may hamper the rights of the parties at the stage of trial.
A perusal of Sections 39 and 40 of the said Act would itself reveal, that for an act to constitute as an offence within the meaning of that Section, it has to be done with the intention of furthering the activities. This Court, in the case of Thwaha Fasal, while considering the provisions of Section 39 of the said Act, has also taken a similar view.
An interference by an Appellate Court and particularly in a matter when liberty granted to a citizen was being taken away would be warranted only in the event the view taken by the Trial Court was either perverse or impossible.
The impugned orders are quashed and set aside and the appeals are allowed.
-
2023 (4) TMI 1319
Exemption from Service Tax - work contract service other than those which are commercial in nature rendered to the Central / State Government, Local Statutory Authorities etc. - Entry 12(a), (c) & (f) in Mega Exemption Notification No.25/2012-Service Tax, dated 20.06.2012 - validity of Notification No.6/2015-Service Tax, dated 01.03.2015 - it was held by High Court that The prayer for a direction to refund of tax already paid by the petitioner also cannot be countenanced as these petitioners are liable to tax - HELD THAT:- There are no reason to interfere with the impugned judgment and order of the High Court. The special leave petitions are dismissed.
-
2023 (4) TMI 1318
Change in Law relief on account of New Coal Distribution Policy, 2013 (NCDP 2013) - should be on actuals viz. as against 100% of normative coal requirement assured in terms of New Coal Distribution Policy, 2007 (NCDP 2007) or restricted to trigger levels in NCDP 2013 viz. 65%, 65%, 67% and 75% of ACQ? - for computing 'Change in Law' relief, the operating parameters should be considered on 'actuals' OR as per technical information submitted in bid? - 'Change in Law' relief compensation is to be granted from 1st April 2013 (start of Financial Year) or 31st July 2013 (date of NCDP 2013)?
HELD THAT:- The 'Change in Law' happens to be by way of adoption, promulgation, amendment, re-enactment or repeal of the law or 'Change in Law', it has to be effected from the date on which such change occurs.
This Court has clearly held that the DISCOMS have a contractual obligation to make timely payment of the invoices raised by the power generating companies, subject to scrutiny and verification of the same. This Court has rejected the contention that the funding cost was much lesser than the rate of LPS. This Court has reiterated the proposition that the courts cannot rewrite a contract which is executed between the parties. This Court has emphasized that it cannot substitute its own view of the presumed understanding of commercial terms by the parties, if the terms are explicitly expressed. It has been held that the explicit terms of a contract are always the final word with regard to the intention of the parties.
This Court has reiterated that once carrying cost has been granted, it cannot be urged that interest on carrying cost should be calculated on simple interest basis instead of compound interest basis. It has been held that grant of compound interest on carrying cost and that too from the date of the occurrence of the 'Change in Law' event is based on sound logic. It has been held that it is aimed at restituting a party that is adversely affected by a 'Change in Law' event and restore it to its original economic position as if such a 'Change in Law' event had not taken place.
The argument that there is no provision in the PPAs for payment of compound interest from the date when the 'Change in Law' event had occurred, has been specifically rejected by this Court.
In view of this consistent position of law and application of restitutionary principles and privity of contractual obligations between the parties as contained in the PPAs, it is not found that the view taken by the learned APTEL with regard to carrying cost warrants interference.
Thus, this Court should be slow in interfering with the concurrent findings of fact unless they are found to be perverse, arbitrary and either in ignorance of or contrary to the statutory provisions.
Appeal allowed.
-
2023 (4) TMI 1317
Disallowance of Credit of Education Cess and Secondary and Higher Education Cess - denial of credit on the ground that the goods were supplied to them by 100% EOU M/s Viraj Profiles Ltd. and as per Rule 3(7)(a) of Cenvat Credit Rules, 2004, the assessee receiving goods from 100% EOU can avail credit of Basic Excise Duty only as per the formula prescribed there under.
HELD THAT:- The issue is no more res integra and is squarely covered by several decisions of this Tribunal. In the case of EMCURE PHARMACEUTICALS LTD. VERSUS COMMISSINOR OF C. EX., PUNE [2008 (1) TMI 147 - CESTAT, MUMBAI] where it was held that Rule 3(7)(b) also opens with the non-obstante clause. Therefore, if the interpretation canvassed by the Revenue is accepted as correct, there would have been no question of utilisation of education cess for payment of education cess if the taking of the credit itself, according to the Revenue, is barred by Rule 3(7)(a), and the provisions of Rule 3(7)(b) would, therefore, be rendered redundant.
The facts of the present case are similar to the facts considered in the aforesaid decision of the Tribunal and therefore, the contention that Education Cess is a surcharge which relates in enhancement of the tax, is agreed upon. Further the objective was not to levy excise duty on goods cleared by EOU. The question of adding Education Cess under Section 93 of the Finance Act,1944 after determination of the aggregate of customs duty does not arise.
The impugned order is set aside and the appeal filed by the Appellant is allowed.
........
|
9911796707
