TMI Tax Updates - e-Newsletter
January 18, 2020
Case Laws in this Newsletter:
GST
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Highlights / Catch Notes
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GST:
Rate of GST - Entry Fees collected for allowing entry in to Municipal Park Subhash Udhyan - The rate of GST on entry fee, ticket charges for Toy Train facility and for Pedal Boat facility provided in Subhash Udhyan (Municipal Park)) is 18%
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GST:
Input tax credit - input/input services - civil work - External Developmental Works - The applicant is not eligible to claim credit of the GST charged by vendor for supply of goods and services to it, which are used for carrying out the activities (Civil Work and External Developmental Works) for setting up of MRO facility.
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GST:
Classification of supply - obligation to refrain from an Act, or to tolerate an Act or a situation - receipt of compensation - the project of setting of SEZ was terminated due to protest by the People - Thus the original amount which is paid back along with compensation would clearly qualify as ‘Supply of Services’.
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GST:
Scope of Advance Ruling authority - requirement of separate registration - The question raised by the applicant pertains to GST registration in State of Karnataka, which is beyond the purview of this authority (in Rajasthan) therefore no ruling is given.
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Income Tax:
Income from other sources u/s 56 - addition on account of so called gift claimed to have been received from the relative - Brother in law - there is no mention of “blood relative” in the whole section - the assessee would fall within the definition of the term “relative” - No addition is warranted.
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Income Tax:
Special audit u/s 142(2A) - CIT has applied his mind and the anomalies and discrepancies that have been pointed out in the impugned order, to our mind are sufficient to meet the test of judicial review while questioning the subjective satisfaction for appointment of special auditor - the action of CIT cannot be held as mala fide or is an outcome of failure to pay the advance tax to the lacking of respondents’ authority.
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Income Tax:
Reopening of assessment u/s 147 - limitation period prescribed under Section 149(3) - the assessment related to 2008-09 and that the time limit for issuance of notice under Section 148 of the Act which is two years, had expired in the year 2010-11, before the amendment came into force. - Revenue appeal dismissed.
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Income Tax:
Addition u/s 68 - unproved trade / sundry creditors - There is no justification for making the addition of advances received from the customers without taking into consideration the respective sales. Having accepted the sales account, there is no case for making the addition of the same amount representing advances from the customers.
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Income Tax:
S u/s 192 - reimbursement of salary cost which was on account of availing personnel services from its AE’s who were sent to India at secondment - The provision of TDS is not applicable on reimbursement of deputation expenses to foreign AE.
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Income Tax:
Royalty receipt - Receipts towards access to use software - India– Netherlands DTAA - For all the years the payments received by the assessee from WIPRO/IBM in pursuance to the MSA cannot be treated as “royalty” under Article 12(4) of the India-Netherland DTAA.
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Income Tax:
Unexplained cash credit u/s.68 on account of relinquishment of right - the amount of the compensation received by the assessee for relinquishment of its right to sue from societies to avoid the litigation cannot be treated as a colorable device. Hence, the amount received as compensation in view of said right is not chargeable to tax
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Income Tax:
Revision u/s 263 - Validity of assessment order - Additional CIT’s jurisdiction - we allow the additional grounds raised by the assessee challenging the validity of assessment framed by the ld Addl. CIT and accordingly quash the assessment so framed
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Customs:
Smuggling - contraband item - foreign marked gold biscuits - In the absence of proper identification of samples, co-relation with the Mint report and lack of any expert opinion about the strips or corners found in possession of accused and recovered from him, the seized gold cannot be held to be gold imported illegally and respondent cannot be convicted of the charges u/s 135 of the Customs Act.
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Service Tax:
Classification of services - The terms of the contract in the instant case being categorical and the division of the amount payable in a ratio appears to be only for the convenience of the parties involved and therefore it cannot be concluded that the services rendered by the appellants are under two different heads. Such an artificial bifurcation is not acceptable.
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Service Tax:
Classification of services - contract for supply of mud and spreading and dumping of earth on agricultural land - Inasmuch as the services in the present case were provided in relation to agriculture, the same has to be held as exempted. Subsequent action by the owner of the land has got no relation to the activities done by the appellant prior to the said conversion.
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Service Tax:
Place of provision of service - Export of services or not - POPOS Rules - while relying on Rule 2(i)(b)(ii) the revenue ignores the existence of Rule 2(i)(b)(i) while Rule 2(i)(b)(ii) prescribes that the place of use would be relevant; Rule 2(i)(b)(i) prescribes the location of the business established would be relevant
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Central Excise:
Common registration for two units - different territorial jurisdiction - the appellant is not entitled to get their Duliajan processing plant included in their registration for Lepetkata manufacturing plant.
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Central Excise:
Removal of sugar for export - Appellant was not able to produce the “proof of export “ within the period as prescribed - The argument is not acceptable that they are not able to co-relate the documents in view of the certain erroneous method adopted by the Customs Authority while endorsing the documents - when law requires something to be done in particular manner then that has to be one in that manner only and all other method of doing are barred.
Articles
Notifications
GST - States-
29/2019 - State Tax (Rate) - dated
31-12-2019
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Chhattisgarh SGST
Amendment in Notification No. 13/2017-State Tax (Rate), No. F-10-43/2017/CT/V(81), dated the 28th June, 2017
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28/2019 - State Tax (Rate) - dated
31-12-2019
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Chhattisgarh SGST
Amendment in Notification No. 12/2017-State Tax (Rate), No. F-10-43/2017/CT/V(80), dated the 28th June, 2017
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27/2019 - State Tax (Rate) - dated
31-12-2019
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Chhattisgarh SGST
Seeks to amend Notification No. 1/2017-State Tax (Rate), No. F-10-43/2017/CT/V(69), dated the 28th June, 2017
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ORDER No. 10/2019 - State Tax - dated
27-12-2019
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Chhattisgarh SGST
Chhattisgarh Goods and Services Tax (Tenth Removal of Difficulties) Order, 2019
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75/2019 - State Tax - dated
27-12-2019
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Chhattisgarh SGST
Chhattisgarh Goods and Services Tax (Ninth Amendment) Rules, 2019
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74/2019 - State Tax - dated
27-12-2019
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Chhattisgarh SGST
Seeks to amend Notification No. 4/2018-State Tax, No. F-10-2/2018/CT/V(3), dated the 24th January, 2018
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73/2019 - State Tax - dated
27-12-2019
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Chhattisgarh SGST
Seeks to amend Notification No. 44/2019-State Tax, No. F-10-41/2019/CT/V(100) dated the 9th October, 2019
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4/2020-State Tax - dated
13-1-2020
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Gujarat SGST
Extension for filing all FORM GSTR-1 from July 2017 to November, 2019 till 17th January, 2020
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2/2020-State Tax - dated
6-1-2020
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Gujarat SGST
Gujarat Goods and Services Tax (Amendment) Rules, 2020
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1/2020-State Tax - dated
1-1-2020
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Gujarat SGST
Seeks to bring into force the GGST Amendment Act 2019
Circulars / Instructions / Orders
News
Case Laws:
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GST
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2020 (1) TMI 658
Maintainability of petition - appealable order - Section 107 of the Central Goods and Services Tax Act, 2017 - goods have been released subject to levy of tax and penalty - HELD THAT:- The order dated 20.09.2019 is appealable under Section 107 of the Central Goods and Services Tax Act, 2017 - the writ petition is disposed of with a direction that in case the petitioner files an appeal within a period of two weeks from the date of receipt of certified copy of the order passed today.
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2020 (1) TMI 663
Rate of GST - Entry Fees collected for allowing entry in to Municipal Park Subhash Udhyan - ticket charges for Toy Train facility provided in Municipal Park Subhash Udhyan - ticket charges for Pedal Boat facility provided in Municipal Park Subhash Udhyan - N/N. 11/2017- Central Tax (Rate) dated 28.06.2017 (as amended) - HELD THAT:- The rate of GST on entry fee, ticket charges for Toy Train facility and for Pedal Boat facility provided in Subhash Udhyan (Municipal Park)) is 18% - further, the activity carried out by the applicant is not covered under Notification No. 12/2017- Central Tax (Rate) dated 28.06.2017 (as amended) and thus contention of the applicant for exemption from GST is not correct.
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2020 (1) TMI 662
Input tax credit - input/input services - civil work - External Developmental Works - whether the Applicant is eligible to take input tax credit on the goods and services supplied by M/s. Akanksha Contracts Pvt. for carrying out the activities (civil work and External Developmental Works) for setting up of MRO facility which will be rented out? HELD THAT:- The activity of MRO involving supply of goods and services is leading to creation of an immovable property. Section 16 (1) of the GST Act specifically provides that every registered person shall be entitled to take credit of the input tax charged on any supply of goods or services or both made to him, which are used or intended to be used in the course or furtherance of his business. Such entitlement is subject to fulfillment of certain conditions such as possession of invoice, receipt of goods/ service, payment of tax to Government etc. as provided under Section 16(2) of the GST Act, 2017 - thus, ITC is not available for construction of an immovable property even when such goods or services or both are used in course or furtherance of business. The applicant is paying GST on goods and services supplied by M/s. Akanksha Contracts Pvt. Ltd. for construction of MRO facility on the applicant's land. The provisions of Section 17(5)(d) of GST Act, 2017 is clear that if the goods or services are used for the construction of an immovable property, the ITC shall not be available irrespective of the use of the said property. The applicant is not eligible to claim credit of the GST charged by vendor for supply of goods and services to it, which are used for carrying out the activities (Civil Work and External Developmental Works) for setting up of MRO facility.
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2020 (1) TMI 661
Classification of supply - whether supply of goods or supply of services - receipt of compensation - the project of setting of SEZ was terminated due to protest by the People - obligation to refrain from an Act, or to tolerate an Act or a situation - HELD THAT:- The applicant is a Government of Goa Undertaking and had entered into an agreement leasing land to parties for setting up Special Economic Zone (SEZ). However, this could not materialize due to protest from the people. As a result, deposit taken from the parties had to be refunded. However, GIDC refused to pay compensation on this deposit. As the original Deed of Lease never mentioned such clause. The parties approached the Supreme Court, who intervened and directed GIDC to compensate them @ 8.25% - In the process the applicant has agreed to do an act of vacating the claim by parties of setting up SEZ units for which GSIDC has paid consideration. Thus the original amount which is paid back along with compensation would clearly qualify as Supply of Services .
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2020 (1) TMI 660
Levy of GST on asset transfer - work of shifting raising of transmission lines owned by RRVPNL by M/s. Wonder Cement Ltd. - person liable to pay GST - Exemption vide Entry 4 of Notification no. 12/2017-Central Tax (rate) dated 28.06.2017. HELD THAT:- The Superintending Engineer (T C), RRVPNL, Chittorgarh, has issued a Corrigendum Letter No. RVPN/SE/T C/COR/TECH/ F./D.973 dated 24.09.2019 in which the words GST @ 18% applicable on asset transfer should be read as the words GST @ 18% applicable on cost of Infrastructure for Value of Supply - After issue of the said corrigendum the question raised by the applicant turned redundant and therefore no advance ruling is required to be given.
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2020 (1) TMI 659
Scope of Advance Ruling authority - requirement of separate registration - whether separate registration is required in the State of Karnataka for the work contract awarded to him in the State of Karnataka? - HELD THAT:- The question raised by the applicant is outside the purview of this authority - The authority for Advance Ruling is created under SGST/UTSGST Act and thus ruling pronounced are applicable within the particular state only, it is for this reason that questions relating to requirement of GST registration in another state is beyond the jurisdiction of this authority and hence no ruling can be given. The question raised by the applicant pertains to GST registration in State of Karnataka, which is beyond the purview of this authority therefore no ruling is given.
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Income Tax
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2020 (1) TMI 657
Assessment u/s 153A - unexplained Cash Credit u/s.68 - HELD THAT:- Proceedings were initiated under Section 153A of the Act. In the course of the search undertaken by the Department, nothing incriminating was found or recovered from the assessee, and in the course of the assessment proceedings, AO took notice of the fact that the assessee had obtained a loan of ₹ 7.30 Crore from one Manaksia Trexim Pvt. Ltd based at Calcutta. AO got the matter inquired through the Investigating Wing of the Calcutta, and the inquiry revealed that loan was in fact advanced. The source of the loan was also explained. Thus, it was confirmed that the assessee had received funds from Manaksia Trexim Pvt. Ltd, one of its own groups. The Tribunal also notes that no incriminating document was found and seized from the premise of the assessee during the assessment proceedings. There are questions of fact which have been resolved by the CIT (A) as affirmed by the Tribunal.
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2020 (1) TMI 656
Income from other sources u/s 56 - addition on account of so called gift claimed to have been received from the relative - HELD THAT:- Tribunal took into consideration the details of the donor, more particularly, the PAN number, capital gain statement, bank statements and the other relevant documents. Upon perusal of the same, the tribunal concurred with the findings recorded by the CIT (A) as regards the genuineness of the transaction. The tribunal, thereafter, looked into the Section 56. The plain reading of the aforesaid provision would indicate that the assessee would fall within the definition of the term relative as explained under Section 56 of the Act. We are convinced with the reasons assigned by the appellate tribunal. We are of the view that none of the questions of law formulated in the memorandum of the tax appeal could be termed as substantial questions of law.
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2020 (1) TMI 651
Levy of fees u/s 234E - exercise of power under Section 200A - delay filing statements of tax deducted fees u/s 234E for the period prior to 1.6.2015 - diversified views - HELD THAT:- Undisputedly, the TDS returns have been processed before 01/06/2015 which is evident from the fact that impugned order is dated 14/05/2015. Therefore, drawing analogy from the decision of Hon ble Supreme Court rendered in CIT V/s Vegetable products Ltd. [ 1973 (1) TMI 1 - SUPREME COURT] we prefer to follow the decision of Hon ble Karnataka High Court rendered in Fatehraj Singhvi V/s Union of India [ 2016 (9) TMI 964 - KARNATAKA HIGH COURT] and delete the late filing fees u/s 234E for all the 4 quarters, as imposed by revenue.- Decided in favour of assessee.
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2020 (1) TMI 650
TDS u/s 195 - reimbursement of demurrage expenses made to non-residents including group entities of the Appellant - HELD THAT:- As decided in DEMPO CO. PVT. LTD., THE COMMISSIONER OF INCOME TAX [ 2016 (2) TMI 308 - BOMBAY HIGH COURT] it is the recipient's position and the perspective in which the recipient's income would be taxed will have to be borne in mind. The non-resident shipping company in respect of it's income would be in a position to rely upon section 44B and consequently section 172. However, we do not see how there is an obligation to deduct tax at source on the resident assessee/Indian company before us. While computing the income of the non-resident Indian / foreign company, assistance can be derived by such non-residents from section 44B if they are in shipping business. It would also be in a position to rely upon section 172 but the responsibility of the person making payment to a non-resident in sub-section (1) of section 195 cannot be avoided in the manner set out in other cases. The scheme as above operates only to cases covered by section 172 of the IT Act and none else. We see no infirmity in the order passed by the Ld. CIT(A) in deleting the demurrage charges relating to A.Y. 2012-13 as these expenses were never debited to Profit Loss account for the assessment year under consideration i.e., A.Y. 2013-14 nor claimed as deduction from total income, in such circumstances there cannot be any disallowance u/s. 40(a)(i) of the Act. Thus, we sustain the order of the Ld.CIT(A) and reject Ground Nos. 1 2 of the grounds of appeal of the revenue. TDS u/s 192 - reimbursement of salary cost which was on account of availing personnel services from its AE s who were sent to India at secondment - HELD THAT:- As decided in own case [ 2019 (10) TMI 972 - ITAT MUMBAI] employees who were serving in India or deputed in India had already deducted tax at source u/s 192 of the Act. The provision of TDS is not applicable on reimbursement of deputation expenses to foreign AE. The CIT(A) has relied upon the decision in the case of Burt Hill Design (P) Ltd. Vs. DDIT (IT) [ 2017 (4) TMI 49 - ITAT AHMEDABAD] he facts are not distinguishable at this stage. No law contrary to the law relied by the Ld. Representative of the assessee has been produced before us. In view of the said circumstances, we are of the view that the CIT(A) has decided the matter of controversy judiciously and correctly which is not liable to be interfere with at this appellate stage.
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2020 (1) TMI 649
Royalty receipt - Receipts towards access to use software - India Netherlands DTAA - whether there is any use or right to use of copyright? - P.E. in India - business income taxed in India - HELD THAT:- As decided in own case [ 2017 (4) TMI 763 - ITAT MUMBAI] wherein the Tribunal held that the payments received by the assessee from Wipro/IBM in pursuance to the MSA cannot be treated as royalty under Article 12(4) of the India Netherlands DTAA None of the conditions mentioned in section 14 of the Copyright Act is applicable as held by the learned CIT(A); and is also is evident from the terms of MSA, because no such rights has been given by the assessee to the IT Service providers. Further by making use or having access to the computer programs embedded in the software, it cannot be held that either WIPRO/IBM are using the process that has gone into the software or that they have acquired any rights in relation to the process as such. The software continues to be owned by the assessee and what WIPRO/IBM is getting mere access to the software. The source code embedded in the software has not been imparted to them. Hence, there is no use or right to use of any process as held by the learned AO. Hence, the finding of the learned CIT(A) that the payment in question cannot be reckoned as royalty is factually and legally correct and the same is upheld. For all the years the payments received by the assessee from WIPRO/IBM in pursuance to the MSA cannot be treated as royalty under Article 12(4) of the India-Netherland DTAA. Thus, the matter is decided in favour of the assessee and against the revenue
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2020 (1) TMI 648
Disallowance towards payment of leave encashment as per actuarial valuation - HELD THAT:- As decided in M/S. S.R. BATLIBOI CO. VERSUS DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-54, KOLKATA. [ 2012 (3) TMI 585 - ITAT KOLKATA] Restore the matter back to the file of Assessing Officer for adjudication as per the decision of Hon ble Apex Court in the case of M/s. Exide Industries Ltd. [ 2009 (5) TMI 894 - SC ORDER] . This ground of appeal of assessee is allowed for statistical purposes. Disallowance towards actual loss in respect of quantity loss and quality deterioration claimed by the respective parties - HELD THAT:- During the hearing before us, when we asked the Ld. AR for supporting evidence/material for submitting that any evidence to support its claim that the liability is an ascertained liability as per the expert report etc. the Ld. AR submitted that the assessee has paid the amount of liability in respect of the claims by buyer for weight loss as well as for deterioration of quality following the prescribed formalities in vogue in the jute trade against provision of such liability and there is a system of assessment of such liability year after year. Finally has written back the said liability it was brought to our notice that in the accounts for the financial year 2017-18, huge liability has been written back in accounts. The related adjustments documents were not produced before the authorities below during the adjudication and need to be considered while adjudicating the issue. Therefore, we remand the matter back to the file of the AO to adjudicate the remaining claim after going through the documents produced by the assessee. This ground of appeal of assessee is allowed for statistical purposes. Interest earned on application of grants received from Govt. of India for upgradation of Jute Technology - HELD THAT:- AO is directed to examine whether the assessee s case falls in the ratio laid down by the Tribunal in the case of West Bengal State Electricity Distribution Co. Ltd. [ 2020 (1) TMI 84 - ITAT KOLKATA] and if assessee s claim falls in the ratio decidendi, then it should be allowed or it should be added in the hands of the assessee as interest income. Therefore we set aside the impugned order of the ld CIT(A) and remand this issue back to the file of AO for de-novo assessment
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2020 (1) TMI 647
Unexplained cash credit u/s.68 on account of relinquishment of right - CIT (A) concluded that the amount of compensation received by the assessee does not represent as a result of breach of contract. As such the assessee by using dubious method tried to avoid the payment of tax thus confirmed addition - HELD THAT:- Character of the transaction for receiving the compensation will not change merely on the ground that the development agreement, termination of agreement and the sale of the property happen in different financial years. It is because there are different parties involved in the transactions and the assessee has no control of whatsoever on these parties. As such, when the societies terminated the agreement with the assessee, it acquired the right to sue and for relinquishment of such right it received the compensation. On perusal of the ITAT order for the assessment year 2009-10, we find that the assessee received the compensation from the 3 parties. And the assessee at the time of entering into agreement with these parties paid or agreed to pay certain amount as per the understanding. Therefore it is clear that the assessee has made or agreed to make the payment of certain amount to these parties from whom it has received the compensation in the assessment year 2009-10. Similarly, the assessee for the year under consideration has also made or agreed to make the payment of certain amount to the societies which has been detailed somewhere in the preceding paragraph. Therefore, we are of the view that the finding of the learned CIT (A) that there was no payment made to the parties by the assessee in the assessment year 2009-10 is factually incorrect. Transaction between the assessee and the society was not representing the related party transaction as alleged by the learned CIT (A). As such we note that the learned CIT (A) has given contrary findings about the fact whether the assessee and the societies were related to each other either directly or indirectly. The parties involved in the entire flow of transactions namely, the assessee, societies and the buyers of the land who are separate taxable and independent persons/ entities viz a viz complying the provisions of the Act. Thus the amount of the compensation received by the assessee for relinquishment of its right to sue from societies to avoid the litigation cannot be treated as a colorable device. Hence, the amount received as compensation in view of said right is not chargeable to tax. - Decided in favour of assessee.
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2020 (1) TMI 655
Special audit u/s 142(2A) - scope of satisfaction recorded by the AO - reasonable opportunity provided to assessee or not? - HELD THAT:- We cannot hold that there is no application of mind on the part of the respondent No.1 for issuing the impugned directions. In our opinion, the satisfaction recorded by the AO is in consonance with the principles enunciated in Section 142(2A) of the Act. The doubts expressed by the AO are on the basis of the complexity of the accounts recorded upon objective considerations mentioned in the impugned order on each query. Though the petitioner has sought to explain all the queries so raised in the present petition, however, we feel that it is not in our jurisdiction to go into the accounts and the audit report and discuss the same. Respondent No.1 has applied his mind and the anomalies and discrepancies that have been pointed out in the impugned order, to our mind are sufficient to meet the test of judicial review while questioning the subjective satisfaction for appointment of special auditor. In our opinion, the aforesaid reasons are sufficient to sustain the action of the respondent to order a special audit in view of the limited and guarded scope of judicial review. AO has given several other opportunities to the petitioner by calling upon them to furnish their response along with documentary evidence. After issuing statutory notice dated 13.09.2019, another opportunity was given on 27.09.2019, when there was a change of the incumbent in office of the respondent No.1. Also, notices u/s 142(1) along with questionnaire were issued to the assessee on 02.08.2019, followed by a reminder on 26.08.2019. Despite aforesaid opportunities, the assessee was unable to answer the queries raised by the respondent to the satisfaction of the AO. In the impugned order, the AO has threadbare considered each response to the queries raised and concluded that the accounts of the petitioner are voluminous and complex. No substance in the petitioner s submission that the action of respondent No.1 is mala fide or is an outcome of failure to pay the advance tax to the lacking of respondents authority. Such submissions are based on conjectures and surmises and in absence of any cogent material to support this assumption, we refuse to entertain such a plea. Equally, we find no merit in the submissions of the petitioner that the respondent No.1 has interpolated the record. The essential mandate of Section 142(2A) requires an opportunity of hearing, which in the present case has been met for the reasons discussed in detail hereinbefore. Petitioner does not dispute that notice dated 13.09.2019 was served upon the petitioner. Resultantly, it had an opportunity to put forth its case and objections for ordering special audit. Once this requirement is fulfilled and the petitioner tendered its reply thereto, the prerequisite under the Act was met. - Decided against assessee
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2020 (1) TMI 646
Revision u/s 263 - Additional CIT s jurisdiction - whether assessment order passed by ACIT u/s 143(3) is bad in law, illegal and without jurisdiction and / or in excess of jurisdiction, on the grounds amongst others that he failed to establish that he possessed legal and valid jurisdiction under the Act to pass the assessment order - HELD THAT:- As decided in own case [ 2019 (8) TMI 1446 - ITAT MUMBAI] Exercise of jurisdiction by the Addl. CIT has to be examined on the basis of notification / orders passed under section 120(4)(b), inasmuch as, in 127(1) of the Act. In this context, learned Departmental representative has relied upon certain notifications to justify the validity of the assessment order passed by the Addl. CIT. As far as existence of any order under section 127(1) is concerned, the learned Dlearned Departmental Representative has fairly submitted that no such order exist on record. At least, nothing was brought to our notice in spite of specific query bang raised by the Bench. Therefore, when the issues are to be decided on the basis of facts already available on record and keeping in view the relevant notifications placed on record as well as the decisions cited, there is no necessity of restoring the matter back to the file o the learned Commissioner (Appeals). As far as the contention of the learned Departmental Representative regarding maintainability of the additional ground on the plea that the assessee can only challenge the jurisdiction issue under section 124(3) of the Act, we do not find any merit in such submissions. A plain reading of section 124 would show that it refers to an order issued under subsection (1) or (2) of section 120, whereas, we are concerned with an order purported to be passed under section 120(4)(b) empowering the Add). CIT to act as an Assessing Officer. Therefore, in our view, the provisions of section 124 are not applicable to the present case. For that reason we do not feel it expedient to deal with the decisions relied upon by the 'earned Departmental Representative in that regard. Thus, in view of the aforesaid the additional ground and supplementary additional grounds are allowed. Respectfully following the aforesaid decision, we allow the additional grounds raised by the assessee challenging the validity of assessment framed by the ld Addl. CIT and accordingly quash the assessment so framed. - Decided in favour of assessee.
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2020 (1) TMI 654
Condonation of delay - sufficient cause of delay - HELD THAT:- Reasons for the delay are beyond the control of the appellant and that the said reasons for the delay are on account of ill health of the Managing Director of the appellant company and the accountant s involvement in a major accident and that for the said reasons the Managing Director was not aware of the order of the Commissioner of Income Tax (Appeals) and that he came to know about the same in the month of June, 2017, when he received a phone call from the IT officer about pending arrears on account of the decision passed by the Commissioner of Income Tax Appeals, we are satisfied that the above said explanation can be accepted as sufficient cause for condonation of delay. If the explanation is accepted and an opportunity is provided to have the cause in the proposed appeal decided on merits, the highest that would happen is that the cause would be decided on its merit after hearing the parties. In that view of the matter, it cannot be said that if the delay is condoned after accepting the explanation as a sufficient cause, prejudice would be caused to the revenue/respondent herein. We find that this is a fit case for condonation of delay and affording an opportunity to the appellant to have the intended appeal decided on its merit by the Tribunal. Hence, we hold that the impugned order is liable to be set aside. In our view condoning the delay subserves the ends of justice.
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2020 (1) TMI 653
Reopening of assessment u/s 147 - limitation period prescribed under Section 149(3) - HELD THAT:- As already noted, the Income Tax Appellate Tribunal, while allowing the appeal of the representative of the assessee, recorded a finding that the amendment to Section 149(3) of the Act, which came into force with effect from 01.04.2012, was not applicable retrospectively and that the amendment made subsequent to the expiry of time limit cannot be made applicable to the assessment, which was already closed. The Tribunal also enunciated the legal position obtaining in support of its findings by making a reference to a decided case wherein the case facts are identical to the instant case and also to the precedential guidance in the decision of the Supreme Court and further held that the assessment related to 2008-09 and that the time limit for issuance of notice under Section 148 of the Act which is two years, had expired in the year 2010-11, before the amendment came into force. Having regard to the facts, the legal position referred to in the impugned order and the contents of the Circular referred to supra, we are of the view that the contention of the appellant that this appeal is to be considered to be falling within the exceptions contemplated in Clause 10(a) of Circular No.3 of 2018 is devoid of merit. Having thus given earnest consideration, we hold that, in the facts and circumstances of the case, the contention that the appeal can be instituted on the above ground urged by the appellant is untenable, and that there is no substantial question of law involved and that therefore, the present appeal, in view of the contents of the afore-stated Circular and the well reasoned sustainable findings of the Income Tax Appellate Tribunal, is liable for dismissal at the stage of admission.
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2020 (1) TMI 652
Addition u/s 68 - unproved trade / sundry creditors - ITAT deleted the addition - HELD THAT:- Tribunal noted as follows: - In the instant case, the advances were received through cheques, but not in cash. The assesse submitted that the said outstanding was adjusted out the sale of potatoes, tamarind etc. in the subsequent assessment year and also produced the invoices before the Ld.CIT(A) for the period 14.04.2011to 10.12.2011. No evidence was brought on record to show that the sales for the subsequent assessment year were not accepted by the AO or false. The reasons for the Tribunal recording a finding in favour of the respondent herein are as under: - For a query from the bench the Ld.AR submitted that the sales were accepted by the AO in the subsequent year and there was no addition or relief was given to the extent of the sales made to the trade creditor. The receipt of advances from customers is a starting point and conclusion of transaction is the relevant sales. Therefore, receipt of advances required to be examined along with sales made by the assesse with stock register. Advances from customers, purchases, stock register and sales account are required to be examined together to verify the genuineness of the advances. No transaction can be isolated since all the transactions are interlinked and depending on each other. The AO isolated the transaction of the advances received against the sales and at the same time, did not examine the genuineness of the sales made to the trade creditor which is part and parcel of the total turnover. There is no justification for making the addition of advances received from the customers without taking into consideration the respective sales. Having accepted the sales account, there is no case for making the addition of the same amount representing advances from the customers. In support of the said findings, reliance was placed on the applicable decisions. On such careful examination, we do not find any infirmity in the findings of the Tribunal warranting interference.
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Customs
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2020 (1) TMI 645
Smuggling - foreign marked gold bars - complaint not exhibited - sanction for prosecution - acquittal of accused - HELD THAT:- There is a sanction dated 2-4-1993 in the records and proceedings, but the same is not brought on record as exhibit. It is settled law that a sanction for prosecution is not an idle formality. The sanction is a solemn and sacrosanct act, which has to be by due application of mind after satisfaction by perusal of the relevant materials. It was the duty of the prosecution to have the sanction exhibited - It is rather unfortunate that this sanction was also not proved through witnesses and consequently, the sanction is not exhibited. Therefore, one could safely state that the prosecution itself is vitiated - the complaint is not proved and exhibited and the sanction also is not proved and exhibited. On these grounds alone, the appeal has to be dismissed. For proving the offence under Section 135, prosecution must prima facie establish a case of legal seizure of contraband gold from the conscious possession of accused. For that purpose, at the outset, prosecution must prove that the seizure effected from the person of accused on 8-3-1991, was legal. Before prosecution seizing any gold in person, there are certain formalities to be followed as mentioned in Section 102 of the Customs Act, 1962. It is the obligation of the officer of customs to apprise the suspect of the rights available to him under Section 102, viz. to be taken to the nearest Gazetted Officer of customs or magistrate. This is a necessary sequence to be complied with for enabling the suspect exercise his rights; and the failure to do so will render such valuable rights conferred to the suspect under Section 102 illusory and a mere farce. The choice, whether to be taken to the nearest Gazetted Officer of customs or a magistrate, lies with the suspect and in the event such choice is made known by him to the officer of customs, he shall be searched only in that manner. It is not up to the officer of customs to make this choice or elect before whom the accused is to be taken. Therefore, even assuming that the officer taking the search is a Gazetted Officer, it is still imperative for him to comply with his obligation to apprise the suspect of the legal rights available to him under Section 102. The seizure itself has not been proved and the alleged confession under Section 108 also has not been proved. It is for this reason, courts have repeatedly held that in the absence of corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation, could not be relied upon. There is an acquittal and therefore, there is double presumption in favour of accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless they are proved guilty by a competent court of law. Secondly, accused having secured their acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the trial court. For acquitting accused, the Trial Court has rightly observed that the prosecution had failed to prove its case. The opinion of the Trial Court cannot be held to be illegal or improper or contrary to law. The order of acquittal need not be interfered with - Appeal dismissed.
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2020 (1) TMI 644
Smuggling - contraband item - foreign marked gold biscuits - evidences before charge were not cross-examined, but after framing of charges they were cross-examined - acquittal of accused. HELD THAT:- The prosecution has totally failed to prove that accused was responsible or in any way responsible for fraudulent evasion of duty or he had been instrumental in the importation of the gold. Prosecution has also failed to prove that accused knew or had reason to belief that the gold found in his person are liable to confiscation. There is no evidence in that regard because the gold seized admittedly did not have any foreign marking. For proving the offence under Section 135, prosecution must prima facie establish a case of legal seizure of contraband gold from the conscious possession of accused. The provisions of Section 102 of The Customs Act, 1962 accord a protection to the suspect prior to a search being taken under section 100 or 101 of the said Act. Such protection is with the view to ensure that such search is taken with good cause and to lend credence to the evidence derived from such search - It is the obligation of the officer of customs to apprise the suspect of the rights available to him under Section 102, viz. to be taken to the nearest Gazetted Officer of customs or magistrate. This is a necessary sequence to be complied with for enabling the suspect exercise his rights; and the failure to do so will render such valuable rights conferred to the suspect under Section 102 illusory and a mere farce. The prosecution has merely tendered on record the Mint report which does not contain any detail to co-relate with the assay carried out by the Mint is of the gold that was actually seized from respondent. This is provided that the gold seized has been legally seized. The prosecution has not established on record by bringing original extracts from the register containing entries of sample seized by P.W.-3 on examination of contents of Exhibit P-10 Panchnama - There is no evidence to show as to in whose custody the gold was until it was sent for assay. There are various other omissions mentioned in the impugned judgment, which for sake of brevity, I am not reproducing. In the absence of proper identification of samples, co-relation with the Mint report and lack of any expert opinion about the strips or corners found in possession of accused and recovered from him, the seized gold cannot be held to be gold imported illegally and respondent cannot be convicted of the charges under Section 135 of the Customs Act. Seizure of gold from the house search - HELD THAT:- Admittedly, accused was not present when the search was effected. When the search effected, there were two persons present, a lady by name Tejal, who was wife of the brother of accused and another person Pramod, who was the brother of accused. Both these persons have not been called to testify - Further, prosecution has not produced any evidence to prove that the house premises exclusively belonged to the ownership of respondent and it was under his exclusive control and possession. The documents relied upon by prosecution indicate that the house was shared by the brother, father and mother of respondent. Consequently, the evidence brought out by prosecution in respect of house search, cannot be accepted. There is an acquittal and therefore, there is double presumption in favour of accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless they are proved guilty by a competent court of law. Secondly, accused having secured their acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the trial court. For acquitting accused, the Trial Court rightly observed that the prosecution had failed to prove its case. The opinion of the Trial Court cannot be held to be illegal or improper or contrary to law. The order of acquittal need not be interfered with - Appeal dismissed.
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2020 (1) TMI 643
Exemption from Anti-Dumping duty - Benefit of N/N. 95/2006-Cus. dt. 08/09/2006 - who is manufacturer of goods - whole case of the Department is that during the course of examination of the goods prior to the clearance of the goods indicated the manufacturer to be M/s.Nanhai Shangyuan Construction Ceramic Co. Ltd. PRC in place of M/s. Foshan Lungo Ceramics Co. Ltd. as appearing in the invoice. HELD THAT:- Learned Commissioner(Appeals) has not given any findings on the examination report except saying that as per appellants, the examination report was not given at the time of clearance - Further, it is also not forthcoming as to why in the existence of the examination report, clearance was allowed by the Customs authorities; if the country of origin certificate has been challenged through proper verification procedure and if any action has been initiated against the officers who have permitted clearance despite the examination report - Learned Commissioner(Appeals) has not dealt with this issue and simply relied upon on the copies of the documents produced by the respondents. The issue remanded back to the original authority for a proper appreciation on the facts and circumstances of the case - appeal allowed by way of remand.
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2020 (1) TMI 642
Classification of imported goods - nature of scrap - Shredded Aluminium 6063 Extrusion Scrap Tread - As against declaration of shredded Aluminium scrap the goods found appeared to be remnant ends of ingots/ billets obtained during the extrusion process - HELD THAT:- We have perused the panchnama dated 19.02.2009, wherein the goods have been described as The cargo was mainly consisted of oval and cylindrical pieces of aluminium alloy. The thickness of the said pieces varied from approximately 2 to 21/4 (feet) and the diameter varied from 6 (inches) to 1 (feet). From the examination conducted as per the above said panchnama, we have no hesitation in holding that the goods imported goods were not shredded aluminium scrap as declared by the appellants. We agree with the findings recorded by the Commissioner that imported goods have been misdeclared in terms of description and hence are liable for confiscation under Section 111 (d) and (m) of the Customs Act, 1962 - the order of Commissioner confiscating the goods is upheld and goods allowed to be redeemed on the payment of redemption fine - Looking into the total assessable value declared, i.e. ₹ 41,89,569.89/- by the appellants, the redemption fine of ₹ 7,00,000/- is not found to be excessive and is upheld. Penalty - HELD THAT:- For the act of omission and commission leading to misdeclaration of goods and there confiscation, under Section 111(d) and (m) of Customs Act, 1962, appellants have been held liable to penalty under Section 112(a) of Customs Act, 1962. Commissioner has imposed penalty of ₹ 3,00,000/- - the ends of justice will be met if the penalty is reduced to ₹ 2,00,000/-. Appeal allowed in part.
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Corporate Laws
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2020 (1) TMI 641
Stay of operation - Oppression and Mismanagement - case of appellant is that an abiding theme of Respondents conduct is the consistent and steady squeezeout of the Appellants rights and title to, and interest in, their ownership of 1st Respondent Company in a manner that is lacking in probity and is unfair. HELD THAT:- Permission to file appeals is granted - Issue notice. Until further orders, the operation of the impugned judgment shall remain stayed.
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Service Tax
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2020 (1) TMI 640
Classification of services - activity for the lease holder in excavation raising and transport of ore - mining services and GTA services - composite services or not - short payment of service tax - case of appellant is that the activity undertaken by the appellant is correctly classifiable under GTA Services and Service Tax on the same has already been paid only to the extent of 60% of the consideration received and Service Tax was also paid by them under Mining Services for the 40% of the remuneration they have received - demand under the head Cargo Handling services. HELD THAT:- The essence of the contract is that the contractor i.e. the appellant shall extract iron ore from the said mine and shall deliver it exclusively to the leaseholder. In consideration thereof the leaseholder shall pay to the contractor in the manner decided. The rates are fixed for different types of iron ore i.e. iron ore R.O.M., iron ore fines, iron ore 10-40 R.O.M.; and iron ore 20-40 (R.O.M.). Also, the Supplementary Agreement has been expanded to bifurcate the expenses relating to mining and transportation in the ratio 40:60 while making payments. The contracts and supplement over the years were in identical manner - Thus it is apparent that the contracts undertaken by the appellant are composite contracts involving excavation and transportation of iron ore. The terms of the contract in the instant case being categorical and the division of the amount payable in a ratio appears to be only for the convenience of the parties involved and therefore it cannot be concluded that the services rendered by the appellants are under two different heads. Such an artificial bifurcation is not acceptable. This Bench of the Tribunal in the case of M/S. HAZARIBAGH MINING ENGINEERS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS SERVICE TAX, BBSR-I [ 2016 (12) TMI 1131 - CESTAT, KOLKATA] having gone through the scope of the contract therein have concluded that the work undertaken by the appellants therein amounted to Mining Services - In the instant case also the learned Sr.Counsel for the appellant other than merely showing that there is a division of payment could not produce any documentary proof so as to conclude that the contract is vivisectable. Therefore, the learned Commissioner has correctly concluded that the activities undertaken by the appellants is Mining Service w.e.f. 01.06.2007 and is chargeable to Service Tax accordingly. Demand of ₹ 18,35,945/- under Cargo Handling Services for the period April 2007 to May 2007 - HELD THAT:- There are a catena of judgements indicating that such service cannot be treated as Cargo Handling Service therefore to that extent the arguments of the appellants are acceptable. The demand is confirmed to the extent of ₹ 2,59,88,882/- under the taxable head Mining and Mineral, Oil, Gas Service for the period 01.06.2007 to 31.03.2010 and ₹ 12,23,964/- on Site Formation and Clearance Service for the period April 2007 to May 2007 - Penalty under section 78 is restricted to 25% of the above confirmed amounts - Appeal allowed in part.
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2020 (1) TMI 639
Classification of services - contract for supply of mud and spreading and dumping of earth on agricultural land - classifiable under site formation and clearance service, excavation, earth moving and demolition service or not - period 01 October, 2007 to 31 March, 2008 - time limitation - HELD THAT:- The services of providing mud and spreading the same was undertaken by the appellant during the period 01 October, 2007 to 31 March, 2008. As per the contract entered by the appellants with M/s Arrow Infra Limited the land in question upon which the mud was to be spread was admittedly agricultural land. Revenue has also not disputed the said fact. As per the definition of site formation and clearance etc, any activity done in relation to agriculture is excluded - Inasmuch as the services in the present case were provided in relation to agriculture, the same has to be held as exempted. Subsequent action by the owner of the land has got no relation to the activities done by the appellant prior to the said conversion. The findings of the Adjudicating Authority that since the agricultural land was subsequently converted into commercial land, the activity undertaken by the appellant prior to the said conversion would become taxable subsequent to conversion of the land, cannot be agreed upon - demand set aside. Time Limitation - HELD THAT:- The demand raised on 22 April, 2013 is barred by limitation. At the time when the appellant provided services, the same were exempted and as such the appellant s plea that no service tax is required to be paid cannot be doubted. There is no evidence on record to establish that the appellant at the time of providing the services knew that the said land is going to be converted - In such a scenario, the invocation of longer period cannot be upheld. Appeal allowed - decided in favor of appellant.
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2020 (1) TMI 638
Business Support Service - Business Auxiliary Service - appellant was collecting service tax from the clients from day one and not depositing the amount so collected with the department - Benefit of N/N. 30/2012 dated 20/06/2012 - out-of-pocket expenses and reimbursable expenses - extended period of limitation - HELD THAT:- In this case, the appellant is collecting service tax from their clients from day one. Therefore, they are not entitled to the benefit of threshold exemption for the first year and service tax is rightly demanded from them. As they have charged service tax from their clients from day one, the amount of service tax collected from the clients is required to be deposited with the department. The appellant is charging service tax @ 25% of the service provided by them on manpower recruitment and supply agency service and is entitled for the exemption N/N. 30/2012 dated 20/06/2012. Further, out-of-pocket expenses are exempted in full as per the said notification. The said benefit has already been granted by the Learned Commissioner (Appeals) in the impugned order. The amount of service provided by the appellant shall be treated as cum-tax, if the same is shown in the balance sheet as whole of the invoice price. The adjudicating authority is directed to quantify the demand as directed herein above and if some amount is payable by the appellant the same shall be paid by the appellant within 30 days along with interest after quantification of the demand of the service tax by the adjudicating authority - Penalty u/s 78 upheld. Appeal allowed by way of remand.
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2020 (1) TMI 635
Place of provision of service - Export of services or not - POPOS Rules - SCN alleged that the respondents provided the taxable services to GMGTO which were actually consumed in India and not abroad and the same cannot be considered as export of service in terms of Rule 3(2)(a) of Export of Service Rules 2005 (up to 30.06.2012) and Rule 6A of the Service Tax Rules, 1995 (with effect from 1.07.2012). HELD THAT:- The SCN alleges that the services are used by the respondent in India. The use of service provided by the respondent to GMGTO is the only issue which can be subject to service tax, if at all. The manner in which M/s GMGTO used the service thereafter can be a separate transaction by the respondents with GMGTO and would need separate scrutiny. In the present proceedings only the service provided by the respondent to GMGTO is the subject matter of scrutiny. Revenue has sought to rely on Rule 2(i) of the Place Of Provision Of Service Rules, 2012 while relying on Rule 2(i)(b)(ii) the revenue ignores the existence of Rule 2(i)(b)(i) while Rule 2(i)(b)(ii) prescribes that the place of use would be relevant; Rule 2(i)(b)(i) prescribes the location of the business established would be relevant - In the instant case, the business establishment of service recipient namely GMGTO is U.S.A and therefore, the location of service recipient would be U.S.A and not India. Appeal dismissed - decided against Revenue.
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Central Excise
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2020 (1) TMI 637
Common registration for two units - different territorial jurisdiction - eligibility for common registration for their Duliajan plant and Lepetkata plant by inclusion of the former in their registration certificate already issued for the latter - Admissibility of CENVAT credit on the capital goods received in their Duliajan plant. Registration - whether the appellant s Duliajan plant where the gas is merely dried and compressed for supply to their manufacturing facility at Lepetkata located 48 km away should be considered as part of the same manufacturing facility and included in their registration or otherwise? - HELD THAT:- Section 3 of the CE Act is the charging section and the other sections are the machinery sections which provide the modalities for giving force to the charging section (including the provisions for registration) - From this section, it is evident that there must be goods which are excisable goods and which must be either manufactured or produced for this charging section to apply. If these elements are missing, the activity falls outside the scope of this Act. The key terms used in the charging section are excisable goods , manufacture and production . Excisable goods is defined in Section 2 (d) and manufacture in section 2 (f). The term production is not defined in the Act and neither is the term goods . Central Excise Registration is required for a manufacturing facility and not for any facility owned by the manufacturer. If there are more than one manufacturing facilities, each of these require a separate registration. In fact, the appellant themselves have two registrations. There are cases where the same factory is split on to opposite sides of a road or pipeline or railway track. In such cases, effectively, it is the same factory with different parts of it working on either side. For such cases, CBEC s manual instructs that a single registration may be given - The present case is not one such. It is case where the assessee has a registered manufacturing facility and a facility 48 km away where no manufacturing but only some processing (which undisputedly does not amount to manufacture) takes place and the two facilities have a common pipe through which the processed gas is transported to the manufacturing facility. Thus, the appellant is not entitled to get their Duliajan processing plant included in their registration for Lepetkata manufacturing plant. CENVAT Credit - whether the appellant is entitled to the CENVAT credit on the capital goods and services received at their Duliajan plant even if it is not part of their registered premises? - HELD THAT:- A plain reading of Rule 2 (l) of the CCR, 2004 makes it clear that there is no room in them to provide for Capital Goods credit on capital goods used in a processing facility outside the factory which does not manufacture any goods but only supplies the processed goods as inputs to the manufacturing facility - Similarly, there is no scope in the Rules to allow CENVAT credit of service tax paid on services used not in the manufacturing facility itself but elsewhere in a processing facility owned by the same legal entity. Thus, the appellant is not entitled to CENVAT credit on the capital goods installed and the services used in their processing plant in Duliajan. Appeal dismissed - decided against appellant.
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2020 (1) TMI 636
Removal of sugar for export - Appellant was not able to produce the proof of export within the period as prescribed - Recovery alongwith interest and penalty - Benefit of N/N. 42/2001 CE (NT), 26.06.2001 - Star Trading House - HELD THAT:- The goods are allowed clearance from the factory of manufacturer for exports in terms of Rule 13 of Central Excise Rules, 1944/ Rule 19 of Central Excise Rules, 2001. The Rule 13 of Central Excise Rules, 1944 is pari materia to Rule 19 of Central Excise Rules, 2001 - In terms of sub-rule (3) of Rule 19, Board has issued notification No 42/2001-CE (NT) prescribing conditions, safeguards and procedure for allowing clearance of goods for export without payment of duty. In the present case as directed by the Hon ble Bombay High Court the matter of the exports under taken by the Appellants in respect of the goods cleared from various factories in Maharashtra was taken up by the common adjudicating authority appointed by the Board. The direction of the Bombay High Court is in respect of the consolidation of the proceedings initiated by various show cause notices in respect of the clearances made for export from the factories located in Maharashtra before common adjudicating authority - After considering the documents furnished by the appellant, adjudicating authority has demanded the duty in the cases where he was not satisfied with proof of export - We are also not in agreement with the submissions made by the appellant that they are not able to co-relate the documents in view of the certain erroneous method adopted by the Customs Authority while endorsing the documents. It is now settled position in law that any person claiming the benefit of an exemption notification is required to fulfill the conditions specified in the notification - It is also a settled position that when law requires something to be done in particular manner then that has to be one in that manner only and all other method of doing are barred. The view taken by the adjudicating authority in the impugned order in respect of Annexure B and C cannot be faulted with. However the view of the adjudicating authority in respect of ARE-1s in Annexure A is contrary to the decision of Hon ble Bombay High Court in para 16 and needs to be reconsidered - while upholding the demand made by the adjudicating authority in respect of the documents (ARE-1/ AR- 4) in Annexure B and C we set aside the demand confirmed in respect of Annexure A and remand the matter back to adjudicating authority for consideration of the same vis a vis the documents that may be furnished by the appellant. Appeal allowed in part by way of remand.
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CST, VAT & Sales Tax
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2020 (1) TMI 634
Maintainability of petition - appropriate forum - pure questions of fact - Levy of penalty under Section 27 of TNVAT Act - purchase omissions - input tax credit on interstate sales without C forms - HELD THAT:- I do not propose to delve into these explanations, being pure questions of fact. A perusal of the show cause notice, reply and order of assessment make it apparent that the discrepancies noted by the authorities as well as the objections raised refer to several factual matters and it is only upon an appreciation of the same can the disputes be resolved - while the petitioner can certainly challenge the order as being incorrect in its appreciation of transactions in question, there is no perversity on facts or errors in law that is made out before me. This is a matter where the petitioner should avail the statutory appellate remedy before the Appellate Assistant Commissioner. Since the petitioner has enjoyed an interim stay for some time, in the interests of justice, the petitioner is granted liberty to file an appeal before the 1st appellate authority, if it so desires and such appeal, if presented with pre-deposit and in accordance with law within a period of two weeks from today - Petition dismissed.
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