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Showing 1 to 20 of 2015 Records
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2018 (12) TMI 2018
Entitlement to claim the 75% abatement on the freight amount under the Goods Transport Agency (GTA) services - required declarations were obtained on the letterheads of the transporting agencies rather than on the consignment notes - HELD THAT:- The issue is no longer res-integra. It is observed that this Bench in the case of IOCL vs. Commissioner of Central Excise, Patna [2013 (6) TMI 201 - CESTAT KOLKATA] held that 'the declarations filed by the goods transport agencies (GTA) in their letter-heads or in the respective payment bills certifying that they have not availed Cenvat credit on inputs or capital goods nor availed the benefit of exemption Notification 12/2003-S.T., dated 20-6- 2003 should have been accepted by the department in extending the benefit of Notification No. 32/2003-S.T. and 1/2006-S.T. In view of the above findings, we do not see any merit in the impugned orders passed by the ld. Commissioner.'
Conclusion - The assessee is rightly entitled for abatement, since the required declarations have been submitted on the letterheads by the Transporters and that there is no legal requirement to submit the declarations on the consignment notes which is not issued by the transporters in assessee’s case. Even otherwise, the non-submission of declaration on the consignment notes is a procedural lapse and would not result in denial of substantive benefit to the assessee.
The impugned order passed by the Ld. Commissioner allowing the abatement is legal and is therefore sustained. The instant appeal filed by the Revenue is rejected.
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2018 (12) TMI 2017
Estimation of income - bogus purchases - FAA confirming the gross profit rate @ 8% of the bogus purchases as such purchases were totally exported out of India - whether adoption of 8 to 6% is justified/reasonable with respect to the assessee who are indulging in hawala purchase - HELD THAT:- So far as, the contention of the Ld. DR that the gross profit may be increased to 12.5% is concerned, is also not justified, since, the assessee is trading gems and jewellery and not in general goods.
Considering the material available on record, find no justification to interfere with the reasoning given in the impugned order as the assessee has already declared G.P. @ 5.4% and since the assessee was involved in hawala/bogus purchases, therefore, the adoption of gross profit @8% is quite justified, because the assessee could not justify the genuineness of bogus purchases, consequently, the order of the Ld. Commissioner of Income Tax (Appeal) is upheld, resultantly, the appeal of the assessee is dismissed.
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2018 (12) TMI 2016
Seeking quashing of proceedings - civil dispute of criminal dispute - sale of property by a person without title - seeking quashing of proceedings arising out of the F.I.R. on the ground that on a plain reading of the FIR, the complainant had failed to make out any criminal intent on the part of the Accused - HELD THAT:- The High Court was persuaded to quash the criminal proceedings purely on the basis that the F.I.R. indicated that the vendor had refused to execute the sale deed. On this basis, the High Court held that there is no element of cheating and on reading of the F.I.R., the complainant had failed to make out any criminal intent on the part of the Accused.
In arriving at this conclusion, the High Court, as would appear from the narration of facts earlier, has lost sight of crucial aspects which have emerged during the course of the investigation. The case of the complainant, it must be noted, is that though the Accused did not have title to the property, she had dealt with the property and it was on that basis that the complainant was induced to part with valuable consideration.
Whether these allegations are true or otherwise is a matter of trial - The High Court was not justified in taking recourse to its power Under Section 482 Code of Criminal Procedure to quash the proceedings.
Conclusion - The High Court is not justified in exercising its jurisdiction Under Section 482 Code of Criminal Procedure at this stage particularly when after due investigation, the chargesheet has been filed and charges have been framed.
The impugned order is set aside - appeal allowed.
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2018 (12) TMI 2015
TP Adjustment - inclusion of ICRA Management Consultancy Services Ltd., in the list of comparables - HELD THAT:- As we direct that the above comparable should be included in the list of comparables. The order of learned CIT-A accordingly stands modified.
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2018 (12) TMI 2014
Jurisdiction of Superintendent (Appeals) to reject the appeal on the grounds of being time-barred - HELD THAT:- Superintendent (Appeals) has no power to adjudicate upon the appeal and dismiss or reject the same on the point of time bar. To reject the appeal on time bar is not a technical defect but is required to be adjudicated upon by appreciating the various submissions made by the assessee or the various factors involved in the matter.
Superintendent (Appeals) lacked the jurisdiction to decide or to reject the appeal on time bar and it was for Commissioner (Appeals) to decide as to whether there was any delay in filing the appeal.
In any case and in any view of the matter if the Appellate Authority would have give a hearing to the appellant before dismissal of his appeal as time barred, all the above facts could have been explained to him. Having not done that, the matter needs to be remanded to Commissioner (Appeals) for decision on the issue of time bar. Appellants are at liberty to place all the evidence on record to show that the appeal stands wrongly filed in the Office of the Assistant Commissioner and Commissioner (Appeals) would also verify the said fact of filing and pendency of appeal in the office of the Assistant Commissioner.
If the appeal was actually filed by the appellant in the office of the Assistant Commissioner, who in any case should have forwarded the same to Commissioner (Appeals) and was pending for three years in his office, the time period for which the appeal was pending in the office of the Assistant Commissioner is required to be excluded from consideration for the purpose of limitation in terms of Section 14 of the Limitation Act.
Conclusion - The authority to adjudicate on whether an appeal is time-barred lies with the Commissioner (Appeals), not the Superintendent (Appeals).
The Commissioner (Appeals) is directed to decide the issue afresh - appeal allowed by way of remand.
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2018 (12) TMI 2013
Allotment of a retail outlet by the Indian Oil Corporation - HELD THAT:- It is well settled that in proceedings Under Article 226 of the Constitution of India the High Court does not adjudicate, upon affidavits, disputed questions of fact. In arriving at the finding that the land offered by Respondent Prakash Chandra Chaudhary was located within Giriyama Mauza of Falka Block the learned Single Bench embarked upon adjudication of a hotly disputed factual issue, which the High Court, while exercising its writ jurisdiction, does not do.
The Single Bench erred in arriving at its aforesaid finding, ignoring the report of the Revenue Authorities, including the District Magistrate, that the land of Respondent Prakash Chandra Chaudhary is situated at a distance of 800 meters from Giriyama chowk towards Falka which is within block Falka but outside the limits of the place Giriyama. The District Magistrate and the Additional Collector clearly stated that the land was beyond Nisundhra Bangali Tola, which is the limit of Giriyama.
It is well settled that in proceedings Under Article 226 of the Constitution of India, the High Court cannot sit as a Court of Appeal over the findings recorded by a competent administrative authority, nor reappreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. The High Court does not ordinarily interfere with the findings of fact based on evidence and substitute its own findings, which the High Court has done in this case. Even assuming that there had been any error in the computation of marks in respect of fixed and movable assets, the High Court could, at best, have remitted the case of Respondent Prakash Chandra Chaudhary to the concerned authorities for reconsideration.
In exercise of discretionary power of judicial review Under Article 226 of the Constitution, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise - It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error.
The High Court should not have decided the factual question of whether the land of Respondent Prakash Chandra Chaudhary was in Giriyama in view of the reports of the concerned Additional Collector, District Magistrate and Circle Officer to the effect that the land of Respondent Prakash Chandra Chaudhary was in Falka block and not within Giriyama. The High Court patently erred in brushing aside the reports of the Revenue Authorities and arriving at a different finding.
Conclusion - The Division Bench has apparently dismissed the appeal filed by the Appellant proceeding on the patently erroneous basis that the land of Respondent Prakash Chandra Chaudhary had been found to be situated within the radius of one kilometer of Giriyama chowk whereas the land of the Appellant Sanjay Kumar Jha was situated outside the Giriyama circle, which was not even the case of Respondent Prakash Chandra Chaudhary in the writ petition. Even the learned Single Bench found that the land of the Appellant Sanjay Kumar Jha was within Giriyama. The judgment and order under appeal cannot be sustained and is liable to be set aside on that ground alone.
The appeals are allowed.
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2018 (12) TMI 2012
Accrual of income in India - Expatriate employees seconded by the assessee to its subsidiary constituted fixed place Permanent Establishment (PE) under Article 5(1) of India Korea DTAA or not - HELD THAT:- Admittedly, there is no material change in the facts and circumstances of the case as both DRP and AO had followed the earlier year orders. Accordingly, we also hold that there is no fixed place PE through the expatriate employees nor any income is derived by the assessee to the expatriate employees. Further, it has been observed by the Tribunal that, since there is no service PE clause in India South Korea DTAA, therefore, no question of service PE arises.
Accordingly, the judgment relied upon by the AO in the case of Centrica [2014 (5) TMI 154 - DELHI HIGH COURT] would not be applicable because in that case seconded employees were held to constitute Service PE. In the result, the grounds raised by the assessee are allowed and even the attribution part would be allowed in favour of the assessee because once there is no business activity conducted by the assessee through expatriate employees, then there could not be question of any kind of attribution of estimate.
Applicability of rate of 15% on all income by the AO held to be in the nature of ‘royalty’ and ‘fee for technical services’ - Despite the fact that in the earlier years the rate of tax paid by the assessee was @10%. Accordingly, we remit this issue to the file of the Assessing Officer to examine the assessee’s claim that the rate of tax u/s. 115A would be 10% and not 15%. AO will give adequate/proper opportunity to the assessee to substantiate its case.
Computing of surcharge and cess - As been pointed out by the learned counsel that no surcharge and cess can be levied because the same is not provided in the DTAA. We are in tandem with such a contention raised by the learned counsel, because the DTAA provides the overall rate which is all inclusive, and therefore, no surcharge or cess has been levied. Accordingly, this issue is allowed in favour of the assessee.
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2018 (12) TMI 2011
Issues involved: Determination of place of removal for claiming input service credit on GTA services u/s CENVAT Credit Rules, 2004.
Summary:
1. The appellants, manufacturers of beverages, claimed input service credit on GTA services for transport of goods to dealers' premises. Revenue disallowed the credit stating services are rendered after place of removal. Appellant argued place of removal determined as per CBEC Circular No. 988/12/2014-CX. Circular defines place of removal as where sale is completed under Sale of Goods Act, 1930.
2. Circulars by the Board emphasize determining the point of sale to ascertain place of removal. Sale completion at dealer's premises crucial for transfer of ownership. Deviation from circulars noted by Board. Legal position under Sale of Goods Act, 1930 considered for transfer of property in goods.
3. Counsel asserts goods transferred to dealers at their premises, making it the place of removal. Revenue contends sale complete at factory gate due to advance payment. Board Circular mandates determining place of removal as per Sale of Goods Act, 1930.
4. Tribunal finds Board Circular not followed by adjudicating authority in denying CENVAT credit. Remands the matter to verify sale completion as per circular and agreements with dealers. Orders re-examination by Original Adjudicating Authorities following principles of natural justice.
(Order pronounced on 20/12/2018 in open court)
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2018 (12) TMI 2009
Exemption from duty for henna powder and paste under N/N. 12/2013-CE - HELD THAT:- It ss noted that the objection of the Revenue, that no other ingredients should have been added to claim the exemption, is correct. However, the facts of the present case did not reveal that any other ingredients at all has been added in making the henna paste. Admittedly, the clove oil is a liquid used to make henna paste from powder and make it marketable as such paste in cones. The said process is for making the paste marketable/useable much later by the customers. There is no addition of any active ingredients to heena powder to make the heena paste other than the said oil or liquid.
Conclusion - The use of clove oil as a medium to make the henna paste marketable does not constitute mixing with other ingredients as per the exemption's terms. The exemption stands allowed.
Appeal allowed.
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2018 (12) TMI 2008
Hearing of appellants - issuance of notice to the Directors / Persons In-charge of the Company - vicarious liability of persons In-charge and responsible for the conduct of business of the Company.
Whether before deciding the appeal in the case of Cadila [2018 (9) TMI 844 - DELHI HIGH COURT], the Division Bench was required to hear the appellants as the Division Bench has pronounced on the correctness of the CCI orders in two cases in Ministry of Agriculture v. M/s. Mahyco Monsanto Biotech Limited and connected matter [2016 (7) TMI 1705 - COMPETITION COMMISSION OF INDIA (LB)], which were under challenge in two writ petitions filed by the appellants herein? - HELD THAT:- No doubt the judgment passed by the CCI in Ministry of Agriculture and connected matter was under challenge before the learned Single Judge of this Court; the said judgment having been approved by the Division Bench in the case of Cadila, the appellants were required to be heard. In any case we have also heard the learned counsel for the appellants on the issues, which they had raised in their writ petitions or at least in their applications for amendment for additional grounds and which have been incorporated in these appeals and accordingly, proceed to decide the same. So, to that extent, the grievance of the appellants has been addressed.
It is also necessary to note the only issue, which the Division Bench in Cadila has framed for its consideration, which has a bearing on the judgment passed by the CCI in Ministry of Agriculture and which was under challenge before the learned Single Judge by the appellants is question No.4 which reads, “Whether DG could have issued notice to Cadila Officials under Section 48”.
That apart, the issue whether the penalty could have been imposed on the Officers / Directors only for contravention of Sections 42 to 44 of the Competition Act or also for contravention of Sections 3 and 4 of the said Act, is an issue, which was neither raised nor considered by the Division Bench in Cadila.
Whether no notice can be issued to the Directors / Persons In-charge of the Company till the CCI returns a finding against the Company that it has indulged in anti-competitive activities under Sections 3 and 4 of the Competition Act? - HELD THAT:- The Division Bench in Cadila [2018 (9) TMI 844 - DELHI HIGH COURT] held that proceedings against company officials could occur without a prior finding against the company. The court referenced the judgment in Aneeta Hada, which clarified that the commission of an offence by the company is a condition precedent for vicarious liability. The court agreed with the interpretation that proceedings against individuals could occur simultaneously with those against the company, rejecting the appellants' contention that such proceedings should be separate.
Whether Section 48 of the Competition Act, which provides for vicarious liability of persons In-charge and responsible for the conduct of business of the Company, will apply only on contravention of orders of CCI or DG under Sections 42 to 44 of the Competition Act and not to contravention of Sections 3 and 4 of the Competition Act? - HELD THAT:- There cannot be any dispute that if the Company and the Officers / Directors are being proceeded against for violation of Sections 3 and 4, there has to be a consequence for violation - there would not be any stipulation of penalty to be imposed on Officers / Directors even if they are found to be violating Sections 3 and 4. That cannot be the intent of Sections 27(b) and 48. Such a stipulation, surely requires a purposive interpretation.
Further, it has been held by the Supreme Court in Board of Muslim Wakfs Rajasthan v. Radha Krishna & ors [1978 (10) TMI 149 - SUPREME COURT], that the construction which tends to make any part of the statute meaningless or ineffective must always be avoided and construction which advances the remedy intended by the statute should be accepted.
The impugned order needs no interference. The appeals are dismissed.
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2018 (12) TMI 2007
Maintainability of complaints filed under Section 12(1)(c) of the Consumer Protection Act, 1986, by a group of consumers without the requisite permission - interpretation and application of Section 2(1)(b), Section 12(1)(c), and Section 13(6) of the Consumer Protection Act, 1986, in conjunction with Order I Rule 8 of the Code of Civil Procedure (CPC) - HELD THAT:- A closer look at Section 2(1)(b) would show that under sub-clause (i) it is the consumer himself, as aggrieved person who could be the Complainant and maintain an action. Under sub-clause (ii), a voluntary organization or association may espouse the cause of such aggrieved person. Under sub- clause (iii) either the central government or the state government may take-up the matter as complainant.
The language used and the text in Section 13(6) is clear that wherever a complaint is filed by a complainant in the category referred to in Section 2(1)(b)(iv), the provisions of Order 1 Rule 8 CPC shall apply with the modification that reference to suit or decree shall be construed as reference to a complaint or order of the District Forum. The expression “with the permission of the District Forum” as appearing in Section 12(1)(c) must be read along with Section 13(6) which provides the context and effect to said expression. Sections 12(1)(c) and 13(6) are not independent but are to be read together and they form part of the same machinery.
Conclusion - The National Commission, in the present case, was therefore justified in holding Consumer Case Nos. 250 of 2013 and 43 of 2014 to be not maintainable.
Appeal disposed off.
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2018 (12) TMI 2006
TP Adjustment - validity of order passed u/s 92CA(3) - Determination of arm's length price of AMP expenses - adjustment on account of the alleged difference in advertisement and promotion expenditure incurred by the assessee and the arm’s length price of subsidy received from the associated enterprises (AEs) - HELD THAT:- No contrary decision is brought to our knowledge and therefore, respectfully following the decision of Sony Ericsson Mobile Communications [2015 (3) TMI 580 - DELHI HIGH COURT] we hold that direct marketing and sales related expenses or discounts/concessions would not form part of AMP expenses. Admittedly, TPO has considered the rebate and discount of ₹22.64 crores as part of AMP expenses which is to be excluded from AMP expenses as per the above decision of Hon'ble Jurisdictional High Court.
After excluding the same, the net AMP expenses work out to ₹24.14 crores the mark up of 9% as upheld by the DRP is applied, then the arm’s length price of AMP would be worked out to ₹26,31,40,313/-. The grant received by the assessee from its AE is ₹27,23,46,104/-, which is more than the arm’s length price of AMP expenses. Since the grant received by the assessee exceeded the arm’s length price of AMP, no TP adjustment in respect of AMP expenses is called for. Accordingly, we direct that the addition of ₹11,46,01,751/- in respect of AMP expenses made by the Assessing Officer be deleted. Appeal of the assessee is allowed pro tanto.
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2018 (12) TMI 2005
Business Support Services - testing and analysis of newly developed drugs on human participants - Exemption under Notification 11/2007-ST - Qualification for export of service criteria - As decided by CESTAT [2018 (2) TMI 1681 - CESTAT NEW DELHI] activities are initiation of trial sites, monitoring, trial monitoring, site management, query response and coordinate with M/s Merck, USA etc. Perusal of these details clearly reveal that the appellant are directly engaged in the activities of conducting clinical trial studies. They did obtain no objection approval from the concerned drug authorities in India. In the face of such factual details, we find that the findings recorded in the impugned order is neither factually nor legally tenable. The appellants activities are clearly covered by the exemption under Notification 11/2007-ST dated 01/03/2007.
HELD THAT:- Delay condoned.
Admit.
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2018 (12) TMI 2004
TP Adjustment - comparability of the company M/s.Megasoft in the software segment - HELD THAT:- This issue is covered by the decision of the coordinate bench of Tribunal in the case of Tesco Hindustan Service Centre Pvt. Ltd [2016 (12) TMI 1712 - ITAT BANGALORE] and Core Objects India (P) Ltd. [2016 (7) TMI 1331 - ITAT BANGALORE] as held that M/s Megasoft Ltd. should be considered as a good comparable after segmentation and therefore, in the present case, we direct the AO/TPO to consider this company i.e. M/s Megasoft Ltd., (supra) as a comparable after segmentation of its result. Thus this ground of appeal is allowed.
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2018 (12) TMI 2003
Offence of Murder - Reversal of acquittal of the Appellants - conviction of Appellants Under Section 302 read with Sections 34 and 148 of the Indian Penal Code, 1860 - whether the High Court was right in setting aside the acquittal of the Appellants and convicting them for an offence of murder?
HELD THAT:- Interference with the judgment of the trial court in this case by the High Court is on a re-appreciation of evidence which is undoubtedly permissible. Though the High Court was aware of the well-settled principles of law in matters relating to appeals against acquittals, it failed to apply the same in their proper perspective. Interference with an order of acquittal is not permissible on the ground that a different view is possible. If the acquittal is justified on a probable view taken by the trial court, it should not be interfered with. The reasons given by the trial court for acquittal mainly pertain to the delay in lodging the FIR, untrustworthy eye witnesses, improbability of identification of the Accused, non-examination of independent witnesses, previous enmity between the Accused and the witnesses, non-production of important prosecution witnesses and improper investigation of the case.
On a thorough examination of the entire evidence on record and the judgment of the trial court, we are of the considered view that the judgment of acquittal by the trial court is justified which ought not to have been interfered with by the High Court. The High Court could not have reversed a judgment of acquittal merely because another view is possible. The High Court brushed aside the findings recorded by the trial court relating to certain omissions as being minor and held the omissions should not have been the basis on which the Appellants have been acquitted. The High Court ignored the fact that the presumption of innocence in favour of the Appellants is further strengthened by an order of acquittal. No perversity in the judgment of the trial court in acquitting the Appellants has been demonstrated by the High Court for interfering with the judgment of the trial court.
The judgment of the High Court is set aside and the judgment of the trial court is restored. The Appellant No. 3 was released on bail on 30.01.2017. His bail bonds are discharged - Appeal allowed.
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2018 (12) TMI 2002
Power of High Court to recall its order - Interpretation of arbitration clauses in the contract - Maintainability of the appeal under Section 37 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Clause 22 deals with disputes that may arise under the agreement which can either be dealt with by an in-house procedure or by courts, as the case may be. By no stretch of imagination could this in-house procedure be stated to be an agreement to arbitrate between the parties. In any case, what is important on the facts of this case, is that neither of these clauses has been invoked. The Court's order dated 27.06.2017, clearly shows that Justice Kanade was appointed as Sole Arbitrator thanks to Mr. Agashe, Assistant Engineer, having no objection to the same. As has been stated in the recall application and the affidavit of the Commissioner, Mr. Agashe was not empowered to take any decision regarding appointment of an Arbitrator. This being the undisputed position before the Court, it is clear that an oral agreement between the parties de hors Clause 13 and Clause 22 could not have been arrived at. It is also reminded that this agreement was arrived at during the course of hearing of a Section 9 petition. In the present case, nobody has applied Under Section 11 to appoint an Arbitrator in accordance with either Clause 13 or Clause 22.
It is clear that these constitutional courts, being courts of record, the jurisdiction to recall their own orders is inherent by virtue of the fact that they are superior courts of record.
The impugned judgment of the Division Bench of the High Court is set aside. Shri Naphade urges to continue the order dated 23.06.2017 for a period of four weeks from today so that he may approach the appropriate forum - Appeal disposed off.
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2018 (12) TMI 2001
Order of seizure u/s 37-A of FEMA - Competent Authority's power and the scope of adjudication under Section 37-A - clash between a general provision and a specific provision - HELD THAT:- The powers of the Appellate Tribunal are general in nature and does not have any specific powers. Whereas Section 37-A (4) is a specific provision. In a clash between a general provision and a specific provision, the specific provision would prevail.
The decision of the Supreme Court of India in the case of Suresh Nanda vs. CBI [2008 (1) TMI 876 - SUPREME COURT] dealt with the issue of a special Act with the specific subject and a general Act. It laid down “where there is a special Act dealing with specific subject, resort should be had to that Act instead of general Act providing for the matter connected with the specific Act.” The golden rule of interpretation of statues stipulates that no law or any part thereof can be so interpreted to make the other part redundant. The appellant’s plea of setting aside the seizure would tantamount to that.
Whether Section 37-A will have retrospective effect or not? - As there are decisions of the Supreme Court and other courts on the issue whether a law can have retrospective effect. In Vatika Township (P) Ltd. [2014 (9) TMI 576 - SUPREME COURT] held Law passed today cannot apply to the events of the past. Retrospective operation should not be given to a statute so as to take away or impair an existing right or create any obligation or impose a new liability.
While seizure is a measure which is taken as an immediate action it does not bestow the power of appropriation until and unless it is confiscated. The law, before Section 37-A came into being did not give any right to the parties to get their property seized and thereafter agitate as provided under Section 37-A(3) and Section 37-A (4) before the concerned authorities but was more draconian in the sense that they were straightaway confiscated. Section 37-A has in fact enlarged the rights of the parties with regard to the properties etc. which has supposedly contravened the provisions of law, in the present case Section 4.
It is nobody’s case that Section 4 did not exist prior to the introduction of Section 37-A and there is no dispute on that. Section 37-A has therefore given more rights to the parties and more channels for them to agitate their case. It has mellowed down the impact of Section 13(2), as presently, there would be a separate procedure involving two different stages of adjudication as stipulated under Section 37-A (3) and 37-A (4). The provisions are beneficial to the parties and has extended their rights further than that was provided in law earlier.
As the adjudication proceedings u/s 37-A (4) are yet to be finalised and the law stipulates that the seizure shall continue till the disposal of the adjudication proceedings and because of the issue of retrospectivity will not remain see no legal ground to interfere with the orders of the Competent Authority at this stage.
In any case, the appellants will have the liberty to file appeal against the adjudication order as and when passed, under Section 19 of FEMA, when it would be open to them to agitate all the issues raised before the adjudicating authority, if they are aggrieved. I, therefore, dismiss the appeal as rejected.
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2018 (12) TMI 2000
Discretion of the trial court in imposing penalty on insufficiently stamped documents - quantum of penalty - whether the trial court which had admitted the agreements to sell in evidence could have exercised its discretion in imposing penalty at the rate of 2 times of deficient amount of stamp duty or it was obligatory for the trial court to impose the penalty at the rate of 10 times?
HELD THAT:- There is clear contradistinction between the power Under Section 33 and 39. The object and purpose for such contradistinction in the provision and power is not far to seek. Section 33 applies to every person having by law or consent of parties authority to receive evidence, and every person in-charge of a public office. Thus, Section 33 covers a host of authorities, persons before whom instruments are filed. The legislative scheme does not indicate any distinction between a court receiving an insufficiently stamped instrument in evidence and other authorities. All have to impose penalty of 10 times of the duty or deficit portion, if it exceeds rupees five. This provision is for purpose of maintaining a uniformity in imposing a fixed penalty of 10 times without adverting to any adjudicatory process regarding quantifying the quantum of penalty. The statute gives discretion to Deputy Commissioner who is the authority envisaged by the Act in-charge of the revenue administration of a District.
The power to refund the penalty Under Section 38 clearly indicates that legislature have never contemplated that in all cases penalty to the extent of 10 times should be ultimately realised. Although the procedural part which provides for impounding and realisation of duty and penalty does not give any discretion Under Section 33 for imposing any lesser penalty than 10 times, however, when provision of Section 38 is read, the discretion given to Deputy Commissioner to refund the penalty is akin to exercise of the jurisdiction Under Section 39 where while determining the penalty he can impose the penalty lesser than 10 times.
In view of impounding the documents and imposition of penalty, we are sure that the suit must not have been proceeded further, and it must be at the threshold stage; asking the Appellant to deposit 10 times of penalty and thereafter to invoke the jurisdiction of Deputy Collector Under Section 38 to refund penalty shall be a proceeding again taking considerable time.
In the facts of the present case, the ends of justice be served in closing the matter by confirming the payment of deficit duty with the double penalty as imposed by the trial court which shall obviate the proceeding of approaching the Deputy Commissioner for reduction of penalty Under Section 38, which in the facts of the present case and for the reasons noted by the trial court was a relevant consideration for refund/reduction of the penalty.
The High Court has correctly interpreted the provisions of Section 33 in the impugned judgment but instead of prolonging the matter permitting the Appellant to deposit 10 times of penalty and thereafter to take recourse Under Section 38, the proceedings regarding penalty on the agreements to sell is closed by approving the direction of the trial court for payment of entire deficit duty and double the penalty.
Appeal disposed off.
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2018 (12) TMI 1999
Liability of GST which has been imposed upon the petitioner after inception of GST Act, 2017 - Inability to file the GST return because before GST regime the petitioner was liable to pay 2% of the Commercial Tax on Works Contract (Civil) which is now increased to 18% or 12% which is to be compensated by the department - HELD THAT:- Careful reading of the grievance raised by the petitioner reveals that the same emanates from the agreement entered into between the petitioner and the Public Works Department. It is not disputed by learned counsel for the petitioner that there exists dispute resolution mechanism in the agreements.
In view whereof instead of dwelling on the matter as to whether the department should or should not enter into supplementary agreement or to make existing works contract as GST neutral, the petitioner is relegated to seek redressal as per mechanism provided in the agreement. In case if such a dispute is raised, it is expected of the authorities concerned to address the issue objectively and expeditiously, preferably within three months from the date of communication of the order.
Petition disposed off.
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2018 (12) TMI 1998
Disallowance u/s 40A(3) - cash in excess of Rs. 20,000/- to a single party in a day - HELD THAT:- CIT (A) has examined the claim of the assessee and the circumstances under which the payment in excess of Rs. 20,000/- was made to single party in a day.
As considered that ld. CIT (A) has already given relief to the assessee where there is such payment less than 20,000/- and has also excluded the payment which were made to the road expenses/RTO, maintenance expenses and payment which were made on Saturdays, Sundays and holidays and other circumstances as elaborated during the course of appellate proceedings before us.
The ld. counsel has failed to controvert the finding of ld. CIT (A) and also failed to point out that how the expenses are allowable in his case as per rule 6DD of the IT rules. We have also noticed that the jurisdictional summary referred by the assessee are distinguishable from the facts of the case of the assessee considering the judicial pronouncements referred by the CIT (A) in his elaborated findings demonstrating that due relief have been provided under the different circumstances cited by the assessee according to the provision of law and rule. Therefore, considering the detailed findings of the ld. CIT(A), we do not find any merit in the appeal of the assessee, therefore, the same is dismissed.
Disallowance of loading and un-loading expresses - no TDS was deducted - assessee explained that payment made against the loading and unloading expenses were not more than Rs. 20,000/- for a day to a group of 4 to 5 persons - HELD THAT:- Ais undisputed fact that these expenses were made at the loading and unloading destinations to small workers in cash on self made vouchers because of nature of expenses, it is difficult to check and verify such payment, therefore, due to non-verifiable nature of these expenses, we observed that CIT (A) has restricted the said disallowance to a very reasonable level of 15% of the aforesaid expenses of Rs. 12,12,400/- on lump sum basis. Considering the reasonableness of the disallowance made by the ld. CIT (A) on the basis of non-verifiable nature of expenses, we do not find any merit in the appeal of the assessee, therefore, the same is dismissed.
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