TMI Tax Updates - e-Newsletter
October 26, 2020
Case Laws in this Newsletter:
GST
Income Tax
Customs
Corporate Laws
Insolvency & Bankruptcy
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
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GST:
Continuation of provisional attachment - Attachment of petitioner’s company’s current bank account - time limitation - expiry of the mandatory period of one year prescribed under Sub-Section(2) of Section 83 of the CGST Act, 2017 - The impugned provisional attachment order cannot continue beyond one year - Operation of current account allowed - HC
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Income Tax:
Addition u/s 68 read with section 115BB - Authorities below have not drawn any adverse inference against the claim of the assessee. Rather AO as well as ld. CIT (A) kept on essay writing spree on the basis of surmises in making the impugned addition by completely ignoring the evidence available on record, hence addition made by the AO and confirmed by the ld. CIT (A) is not sustainable on merit also. - AT
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Income Tax:
Disallowance u/s 35(i)(ii) - When the assessee had given a donation to the donee organization, the registration granted u/s 35(1)(ii)(iii) of the Act by the competent authority was in force. Just because this was withdrawn at a later date, the assessee to claim for deduction cannot be rejected. - AT
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Income Tax:
Deemed income / addition u/s 41(1) - Recovery of bad debts written off - the bad debts written off did not exceed the credit balance in provision for bad and doubtful debts and the bad debts written off was not claimed as deduction u/s.36(1)(vii) of the Act in earlier years. - No addition could be made - AT
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Income Tax:
MAT u/s 115JB - Reversal of provision for bad debts - Adjustments to Book Profit - the benefit of clause (i) of Explanation 1 to section 115JB (2) will not be available to the assessee if the book profit was not increased by the amount of provision made in the year of making the provision for whatever reason. - AT
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Customs:
Validity of SCN - Levy of Penalty u/s 112(a) of Customs Act on CHA - abetment of offence committed by the importer as against which the petitioner - scope of Sections 28(2) and 28(4) of the Customs Act, 1962 - suppression of facts or not - extended period of limitation - the benefit u/s 28(2) is available only in the case of a ‘regular’ assessment contemplated made u/s 28(1). This is made clear by the explicit exclusion in Section 28(1) of cases of collusion, wilful mis-statement or suppression of facts for the initiation of which revenue has the benefit of an extended limitation of five years. - HC
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Customs:
Refund of excess duty paid on account of wrong declaration of invoice value - rejection of request for amendment of the bills - What is contemplated vide the proviso to Section 149 is an opportunity to be extended to an assessee to produce such documents that were ‘in existence’ at the stipulated time that would serve to establish the error, if any, in the B/E. - HC
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IBC:
Initiation of CIRP - the share application money does not fall under any of the clauses of Section 5(8) of the Code and it cannot be said to fall under the definition "a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money" since no debt was disbursed by the Applicant to the Respondent and no time value has been attached with the share application money. Thus, since the claim is not a financial debt the present application under Section 7 of the Code is not maintainable and is dismissed with no costs. - Tri
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IBC:
Initiation of CIRP - the Financial Creditor is trying to recover his dues through various legal actions which was being contested by the Corporate Debtor at every stage. In the absence of any adverse order in the above proceedings and after thoroughly perusing the documents executed by the Corporate Debtor with the Financial Creditor, the debt in question is legally recoverable debt and therefore reject the contention that respondent company is not a Corporate Debtor as there is no legally recoverable debt. - Tri
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Central Excise:
Demand of Interest over differential duty or unpaid service tax - the issue now stands settled that the assessee is liable to pay interest upon the differential duty and / or the unpaid service tax detected by the Revenue. - HC
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VAT:
Exemption from payment of entry tax - It is nobody's case that the exemption certificate has been withdrawn or was erroneously granted and the respondent State has admitted grant of exemption certificate and, therefore, once exemption certificate was granted, the Department cannot take advantage of technicalities, especially when the certificate itself was granted in the year 2017 with retrospective effect. - HC
Articles
Notifications
News
Case Laws:
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GST
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2020 (10) TMI 1002
Non availability of the documents of sale and purchase in respect of the goods that were found stored on the business premises of the petitioner - Section 35 (1) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Since the issue is very little with regard to the availability of documents pertaining to the goods/ articles stored in the business premises and the genuine reason has been assigned for the same because of the transitional period from old Act to new Act, it would be in the fitness of things and the cause of justice would also get served in the opinion of the Court, if the petitioner is permitted 10 days' time to produce all the records bearing signatures of the designated authority of the Company who is competent to do so, before the Additional Commissioner, Central Excise and GST, Gautam Budh Nagar for due verification and report thereof is obtained. It is directed that in case if the requisite documents are produced, as directed herein above, the same will be examined and verified by the competent authority and report duly prepared in respect thereof within a week of submission of records by the petitioner, shall be submitted to this Court by way of supplementary counter affidavit by the next date fixed - Put up this matter on 09.11.2020 in the additional cause list.
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2020 (10) TMI 1001
Denial of Input Tax Credit - non-updation of the web portal of the GST Department - permission to rectify the form GSTR-3B by utilizing the available credits and/or permit the petitioner to file the necessary documents manually - section 49A 49B of the Central GST Act 2017 read with Rule 88A of the GST Rules, 2017 - HELD THAT:- Upon hearing the counsel for the parties issue Notice returnable by 24-11-2020. Since the counsel for the respondents have already entered appearance no fresh Notice need be issued, however, sufficient copies of the writ petition be furnished to the learned standing counsel for the respondents.
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2020 (10) TMI 1000
Continuation of provisional attachment - Attachment of petitioner s company s current bank account - time limitation - expiry of the mandatory period of one year prescribed under Sub-Section(2) of Section 83 of the CGST Act, 2017 - HELD THAT:- The issue in the Writ Petition relates to a provisional attachment order dt.07.06.2019 issued by the 2nd respondent and its continuing existence after 06.06.2020, i.e., after the expiry of one year from 07.06.2019, contrary to sub-Section(2) of Section 83 of the Act. The fact that the said attachment cannot continue in view of the sunset clause in sub-Section(2) of Section 83 of the Act beyond a period of one year from 07.06.2019, is not in dispute. The impugned provisional attachment order dt.07.06.2019 issued by the 2nd respondent cannot continue after 06.06.2020 in view of sub-Section(2) of Section 83 of CGST Act, 2017, and any such continuation would be violative of Articles 14, 19(1)(g) and 300A of the Constitution of India and would be wholly without jurisdiction - the Writ Petition is allowed directing the 5th respondent to allow the petitioner to operate its current account forthwith.
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2020 (10) TMI 999
Validity of Garnishee Order - attachment order - time limitation under Section 117 of the Central Goods and Services Tax Act, 2017 - Court stayed the operation of the Garnishee Notice, for a period of two days for the reason that even before the expiry of the appeal time, as prescribed under Section 117 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- A perusal of the material available on record prima facie shows that even before the expiry of the time granted for filing an appeal for the assessment years January, 2020 to June, 2020, Garnishee Notice came to be issued. Similar is for the assessment year January, 2019 to December, 2019. Therefore, the execution of Garnishee Notice seeking attachment of ₹ 12,14,61,114/- appears to be on higher side. According to the petitioner, if an appeal is preferred, he has to deposit only 10% of the disputed tax. Be that as it may, for the present, with the consent of both the parties, the order impugned, dated 26.8.2020, is stayed subject to the petitioner depositing ₹ 2,50,00,000/- within a period of three (3) weeks, in default, the stay shall stand vacated. Meanwhile, the respondents shall file their counters. Post on 24.09.2020.
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2020 (10) TMI 998
Validity of Provisional Release Order - case of appellant is that while passing the impugned order the releasing authority was required to follow the judgments of various courts under judicial discipline, the impugned order has been passed in utter violation of judicial discipline - HELD THAT:- The investigation in the matter is still under process as per letter C.No. DGGSTI/JZU/INT/CE/02/2017/3256 dated 22.07.2019 received from Joint Director, DGGI, Jaipur and appeal has been filed only against the conditions imposed for provisional release. The various courts order submitted by the appellant is not squarely covered in the instant matter. The Provisional Release Order passed by the Releasing Authority is as per law; as the order has been rightly passed by the Releasing Authority and is in accordance with the provisions of sub-section(6) of Section 67 of the CGST Act, 2017 - Appeal dismissed.
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Income Tax
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2020 (10) TMI 993
Validity of assessment proceedings u/s 153C - documents must pertain to the assessee and must have a bearing on the income of the assessee - HELD THAT:- When Annexure A-1, Page 5, which is the very basis of addition made by the AO in this case, has been held to be belonging to Lalit Modi, the very initiation of proceedings u/s 153C on the basis of the same against assessee are held to be not sustainable by the Hon ble Delhi High Court [ 2017 (5) TMI 992 - DELHI HIGH COURT ] . Ld. CIT (A) has rightly deleted the addition made by the AO following the order passed by the Tribunal in assessee s own case (supra) and confirmed by Hon ble Delhi High Court and Hon ble Supreme Court [ 2018 (8) TMI 1154 - SC ORDER ] . So, finding no illegality or perversity in the impugned order passed by the ld. CIT (A), present appeal filed by the Revenue is hereby dismissed.
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2020 (10) TMI 992
Condone the delay of 440 days in filing appeal - Eligible reasons for delay - assessee was waiting for the rectification pending before the AO against the order u/s 143 (1) - HELD THAT:- Delay was for this reason that the assessee was pursuing an alternative remedy available under the law because there was no dispute about quantum of income because returned income was accepted and the dispute was only regarding non granting of credit for TDS by DCIT (CPC) which can be rectified u/s 154. We find that in the facts of the present case as noted above, we are satisfied that the assessee was bonafidely pursuing alternative remedy available under the law and therefore, by respectfully following this tribunal order, we condone the delay in filing of appeal before CIT (A) and restore the matter back to the file of CIT (A) for a decision on merit. Appeal of the assessee is allowed for statistical purposes
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2020 (10) TMI 991
Reopening of assessment u/s 147 - Non independent application of mind - addition u/s 68 read with section 115BBE as against profit declared on account of commodity trading - HELD THAT:- Name of the assessee as a broker has nowhere mentioned in the reasons recorded. Reasons have been recorded by the Investigating Officer without making any verification of facts and figures forwarded by the Investigation Wing what to talk of conducting independent enquiry. Assessee to prove the fact that the reasons recorded are vague and factually incorrect taken us to the audited balance sheet, profit loss account and Schedule IX, Sales and Other Income, particularly Schedule IX depicting sales and other income,which shows that assessee has booked profit from commodities at ₹ 149,19,900/- and not ₹ 1,37,250/-. This fact goes to prove that the AO has proceeded merely on the basis of report given by the Investigation Wing and has not preferred to verify the same from the audited financials brought before him by the assessee and in these circumstances, it is difficult to believe that he has applied his mind before recording the reasons requires for initiating the proceedings u/s 147/148. When AO was not even aware as to the actual profit earned by assessee from commodities and this fact has also not been verified by the Principal CIT from audited financial of the assessee, then it is difficult to believe as to how and under what circumstances he has made himself satisfied to proceed against the assessee u/s 147/148 of the Act. So, the entire process as to initiating the reopening is merely mechanical without any application of mind by the AO as well as sanctioning authority, Principal CIT, which has vitiated the entire proceedings. Reasons to believe recorded by the AO, which is replica of information received from the Investigation Wing, cannot be a tangible material per se sufficient to form reasons to believe; that even figures of buying, selling and profit booking qua commodity trading, are not in accordance with the audited financials of the assessee company which shows that there is absolutely no application of mind on the part of the AO - Decided in favour of assessee. Addition u/s 68 read with section 115BB - When assessee has specifically proved on record that it has earned profit of ₹ 59,56,410/- on commodity trading through R.K. Commodities (P) Ltd. registered with NMCE but AO has wrongly taken this amount as ₹ 41,45,405/- and treated the same as the profit earned by the assessee through manipulations without examining the evidence available on file, it is proved on record that all these documents were placed before the AO by the assessee vide letters dated 06.12.2017 and 29.12.2017,but he has not drawn any adverse inference against the claim of the assessee. Rather AO as well as ld. CIT (A) kept on essay writing spree on the basis of surmises in making the impugned addition by completely ignoring the evidence available on record, hence addition made by the AO and confirmed by the ld. CIT (A) is not sustainable on merit also. So, this ground is determined in favour of the assessee.
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2020 (10) TMI 990
Disallowance of depreciation - Depreciation on opening written down value - HELD THAT:- Information cannot be relied upon to decide the issue in hand in the absence of primary documents as highlighted by the authorities below. Assessee failed to file any documentary evidence reflecting the sales made by it through the Manufacturing activity viz a viz the trading activity separately which was essential to establish the fact that assessee has carried out the manufacturing activity in the year under consideration. Assessee has claimed depreciation in the year under consideration in the opening written down value and addition of fixed assets put together which was disallowed by the CIT (A) - depreciation claimed by the assessee in the opening written down value cannot be denied in the year under consideration as it pertains on the fixed assets which were acquired in the earlier years and the depreciation was allowed thereon - we direct the AO to allow the depreciation on such opening written down value of the assets brought forward from the earlier assessment year. Hence, the ground of appeal of the assessee is partly allowed. Disallowance on account of damage and wastage of goods - HELD THAT:- Assessee by claiming the bad debts is not under the obligation to prove the ir-recoverability of the amount from the parties. Assessee chooses to write off such amount as the damaged goods which is also supported by the ledger copy of the other party. Thus,in the present situation, what we try to infer is that claim of the assessee cannot be treated as bogus.Authorities below have not verified from the concern parties whether the claim made by the assessee is not tenable by issuing notice under Section 133(6)/131 of the Act. Similar claim of the assessee was admitted by the Revenue for immediate preceding assessment year as discussed above, therefore, the same claim in the year under consideration, though high in value, cannot be rejected without any cogent materials - we are not impressed with the finding of the authorities below in the manner in which they have rejected the claim of the assessee. Accordingly, we set aside the finding of CIT (A) and direct the AO to delete the addition made by him. Hence, the ground of appeal of the assessee is allowed. Disallowance of the expenses on account of business promotion expenses - HELD THAT:- Whether the Circular No.5/2012 issued by CBDT is applicable retrospectively or prospectively. In this regard we note that the relevant assessment year under consideration is A.Y. 2008-09 during which there was no CBDT Circular as referred by the authorities below for making disallowance by branding the expenditure as covered by Explanation to Section 37(1) - We found that the expenditures were incurred wholly and exclusively for the purpose of business, therefore, same cannot be disallowed by applying CBDT Circular dated 01-08-2012 in respect of years under consideration. In the case of Troikaa Pharmaceuticals Limited vs. DCIT [ 2019 (10) TMI 731 - ITAT AHMEDABAD] involving identical facts and circumstances has decided the issue in favour of the assessee. Hence, the ground of appeal of the assessee is allowed. Disallowance of foreign travelling expenses - HELD THAT:- Claim of the assessee was accepted by the Learned CIT(A) to the tune of 90% of the total foreign travelling expenses incurred by the assessee. But, the Learned CIT(A) in his finding has inadvertently restricted the disallowance at ₹ 1,38,381/- instead of ₹ 15,376/-. Thus, accordingly we hold that the issue is limited to the extent of ₹ 15,376 only. First of all, we note that there is no provision under the law to make the disallowance on estimated basis. As such we do not find any cogent material on the part of the Learned CIT(A) for making disallowance in part. Assessee being a body corporate cannot incur any expenditure personal in nature as held in the case of Sayaji Iron Engg. Co.[ 2001 (7) TMI 70 - GUJARAT HIGH COURT] - assessee has made exports to the foreign countries as evident from the details filed by it (the assessee). Therefore, we hold that foreign travelling expenses were incurred by the assessee in the course of his business activities and therefore no disallowance is warranted.
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2020 (10) TMI 989
Addition of low gross profits after rejecting the books of accounts u/s 145(3) - HELD THAT:- AO cannot reject the books of accounts for the reasons where the assessee does not maintain the stock register. Accordingly, we note that the reasons which were based by the AO for rejecting the books of accounts are not sufficient enough and cogent. Books of accounts of the assessee are not liable to be rejected as per the provisions of Section 145(3) of the Act. Accordingly, we conclude that once the books of accounts of the assessee are not liable to be rejected then its book profit should be accepted in the given facts and circumstances. No infirmity in the order of the Learned CIT (A) and direct the AO to delete the addition made by him. Disallowance of interest expenses u/s 36(1)(iii) - assessee has acquired a machinery loan which was put to use only after 2ndJuly 2007 - AO was of the view that the interest paid by the assessee up- to the date i.e. 2ndJuly 2007 when the machinery was put to use should be capitalized under Section 36(1)(iii) - HELD THAT:-On perusal of the installation report placed we note that the machine was installed on 2ndJune 2007 which implies that it was ready to use on that date. Therefore, the disallowance of the interest expenses should be limited to the extent pertaining to two months only. Assessee has also utilized its own funds in the purchase of machineries in addition to the borrowed fund from the bank. Accordingly, CIT (A) excluded the amount of own fund utilized by the assessee while working out the amount of interest expenses to be capitalized. These facts, have not been disputed by the Learned DR at the time of hearing - No infirmity in the order of the Learned CIT (A). Hence, the ground of appeal of the Revenue is dismissed.
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2020 (10) TMI 988
Proceedings u/s 143(3) - Non issuance of notice u/s. 143(2) from the competent AO - Unexplained cash credits addition u/s 68 - addition on account of assessee s failure in discharging onus of identity, genuineness and creditworthiness of the share application / premium s investors - HELD THAT:- Revenue itself is fair enough in admitting the clinching fact that ITO, Ward 24(3), Kolkata only had issued 143(2) notice dated 07-08-2013 to the assessee without having his jurisdiction since it was the TRO-4, Kolkata who was supposed to frame assessment in the taxpayer s case. The latter authority never issued sec.143(2) notice to the assessee. There can hardly be any dispute that issuance of notice u/s. 143(2) from the competent Assessing Officer is a mandatory condition as per ACIT vs. Hotel Blue Moon [ 2010 (2) TMI 1 - SUPREME COURT]. Assessment in absence of section 143(2) notice issued from the Assessing Officer having jurisdiction is rendered invalid - See D. CRAFT ENTERTAINMENT PVT. LTD. VERSUS INCOME-TAX OFFICER, WD-6 (1) , KOLKATA [ 2018 (10) TMI 1114 - ITAT KOLKATA]. Thus impugned assessment order dated 22-03-2015 had been framed without the competent Assessing Officer s sec. 143(2) notice issued to the assessee. The same is declared invalid for this precise reason. - Decided in favour of assessee.
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2020 (10) TMI 987
Deduction u/s 80P(2) - Denial of claim as assessee was essentially doing the business of banking and disbursement of agricultural loans by the assessee was only minuscule - HELD THAT:- After perusing the narration of the loan extracts for the financial periods under consideration, came to the conclusion that out of the total loan disbursement, only a minuscule portion has been advanced for agricultural purposes. The narration in loan extracts / audit reports by itself may not conclusive to prove whether loan is a agricultural loan or a non-agricultural loan. The gold loans may or may not be disbursed for the purpose of agricultural purposes. Necessarily, the A.O. had to examine the details of each loan disbursement and determine the purpose for which the loans were disbursed, i.e., whether it is for agricultural purpose or non-agricultural purpose. In this case, such a detailed examination has not been conducted by the A.O s. In the light of the dictum laid down in the case of The Mavilayi Service Co-operative Bank Ltd. v. CIT [ 2019 (3) TMI 1580 - KERALA HIGH COURT] we are of the view that there should be fresh examination by the Assessing Officer as regards the nature of each loan disbursement and purpose for which it has been disbursed, i.e., whether it for agricultural purpose or not. A.O. shall list out the instances where loans have disbursed for non-agricultural purposes and accordingly conclude that the assessee s activities are not in compliance with the activities of primary agricultural credit society functioning under the Kerala Co-operative Societies Act, 1969, before denying the claim of deduction u/s 80P(2) - Appeal filed by the assessee is allowed for statistical purposes
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2020 (10) TMI 986
TDS u/s 195 - Demand raised u/s 201(1) and 201(1A) - assessee has been making payments to its US subsidiary which were in the nature of selling and marketing expenses - AO took the view that the impugned payments are in the nature of Fee for technical services - assessee submitted that the services carried out by its US subsidiary are in the nature of targeting new customers, carrying out promotional activities and participating in trade shows outside India on behalf of the assessee - HELD THAT:- We notice that the AO has not properly analysed the nature of services rendered by M/s Adadyn Inc., USA, in the context of sec. 9(1)(vii) or DTAA, even though he has extracted the agreement entered between the assessee and M/s Adadyn Inc. Assessee contention that nature of services provided by the above said company is in the nature of business support services and not in the nature of consultancy services in strict sense. It is not shown that the above said contention of the assessee is wrong. Nature of services provided by M/s Adadyn Inc., USA has not been analysed by Ld CIT(A) also. On the contrary, it is the contention of the assessee that the first appellate authority has entertained erroneous belief that the assessee has been using market analysis/ online data/data bases etc., belonging to M/s Adadyn Inc. The above said observation of Ld CIT(A) was strongly objected to by the assessee. Hence the observation of the Ld CIT(A) that a part of payment constitutes Royalty is strongly disputed. CIT(A) has also not properly analysed the provisions of article 12 of India USA DTAA. Without analysing the nature of services, the Ld CIT(A) has observed that the services were made available. Thus, we notice that the Ld CIT(A) has rendered the decision without bringing on record supporting materials and also without properly analysing the provisions and contentions of the assessee. In the absence of proper analysis of facts relating the issues contested before us, it would be difficult for the Tribunal to adjudicate them. Thus all the contentions of the assessee require fresh examination at the end of Ld CIT(A). Assessee appeals are treated as allowed for statistical purposes.
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2020 (10) TMI 985
Disallowance u/s 35(i)(ii) - assessee had made donation to M/s. School of Human Genetics and Population Health a Trust which was approved by the Ministry of Finance (Department of Revenue) (Central Board of Direct Taxes) Notification New Delhi, dated 26.01.2009 u/s 35(i)(ii) r.w. Rule 5C and 5E of the Income Tax Rules, 1962 from the AY 2008-09 onwards in the category of Other Institution project engaged in research activities vide F.No.203/64/2009/ITA-II dated 20.01.2009 - HELD THAT:- In SANTOSH SURESH KUMAR AGARWAL [ 2018 (9) TMI 1827 - ITAT KOLKATA] AND M/S MACO CORPORATION (INDIA) PVT. LTD. [ 2018 (3) TMI 811 - ITAT KOLKATA] AND Zenith Credit Corporation [ 2018 (7) TMI 1958 - ITAT KOLKATA] considering fact that the donee has approached the Settlement Commission were also considered and it was held that these facts do not affect the claim of the assessee for deduction u/s 35(1)(ii). The case on hand, reliance was placed by the AO on the copy of statement of Smt. Samadrita Mukherjee Sardar, the Secretary of SHG PH. In the statement, the name of the assessee is not mentioned as a company which had indulged in bogus donation. Copy of the statement was not given to the assessee. It is well settled that when adverse material is not given to the assessee, the same cannot be used against them. No opportunity of cross examination of the witness of the Revenue was granted. Thus, these statements cannot form evidence, based on which an addition can be sustained. When the assessee had given a donation to the donee organization, the registration granted u/s 35(1)(ii)(iii) of the Act by the competent authority was in force. Just because this was withdrawn at a later date, the assessee to claim for deduction cannot be rejected. All these propositions have been laid down in the case law extracted above. Consistent with the view taken by different Benches of the ITAT on this very issue on similar facts, we hold that the assessee is entitled for deduction u/s 35(1)(ii) of the Act. In the result this ground of the assessee is allowed.
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2020 (10) TMI 984
Exemption u/s.11(1)(a) - Disallowance of Administrative Establishment expenses claimed by the assessee - HELD THAT:- Assessee enjoys registration under section 12A of the Act and that the AO without assigning any reason has disallowed which was claimed by the assessee as Administrative Establishment expenses which was included in the application of income u/s.11 Whether the administrative and establishment expenses can be included as application of Fund is no longer res integra, since Hon ble jurisdictional High Court in CIT Vs. Birla Janahit Trust [1990 (8) TMI 5 - CALCUTTA HIGH COURT] has held that salaries and miscellaneous expenses which are incurred for carrying out the object and purpose of the trust must be considered as application for charitable purpose. Audit fee is necessary expense likewise bank charges, which assessee has to pay to the bank for running of its activities, and the expenses under the head rates and taxes are in the nature of municipal taxes etc. which are necessary for the survival and then only it can run the trust, thereby achieve the objective of the trust, so the expenditure incurred by the assessee trust, needs to be allowed. Therefore, the total expenses incurred as Administrative Establishment expenses are allowable expenses. Allowability of exemption u/s. 11(1)(a) (i.e. 15% accumulation of income is on Gross Receipt or not) - As per assessee, it is entitled to accumulate 15% of its gross receipt in case it is not applied for charitable purpose u/s. 11(1)(a) - HELD THAT:- the issue under consideration in respect of accumulation of income allowed u/s. 11(1)(a) of the Act is no longer res integra. For that, we rely on the decision of the coordinate bench of this tribunal (Bangalore bench) in the case of Greenwood High Trust [ 2018 (1) TMI 1105 - ITAT BANGALORE] we direct the AO to allow accumulation income u/s. 11(1)(a) of the Act @ 15% of the gross receipt as claimed by the assessee and consequently ground raised by the assessee is allowed.
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2020 (10) TMI 983
Addition u/s 14A read with Rule 8D - sufficiency of own funds - HELD THAT:- As decided in own case [ 2018 (5) TMI 420 - ITAT KOLKATA] the own funds of the assessee are sufficient to make the cost of the investments which yielded exempt income. A.O. has not brought anything on record which proves that the investment was made out of the borrowed funds. We are, therefore, of the view that the investment made out of the assessee s own funds and accordingly the addition made by the A.O. and confirmed by the Ld. CIT(A) under section 14A read with rule 8D(2)(ii) is to be deleted. Disallowing deduction on account of provision for future loss on derivative due to foreign exchange fluctuation - HELD THAT:- As relying on S VINODKUMAR DIAMONDS PVT LTD [ 2013 (11) TMI 408 - ITAT MUMBAI] and HINDUSTAN GUM CHEMICALS LTD [ 2017 (3) TMI 1173 - ITAT KOLKATA] allowability of the loss on actual payment in AY 2009-10 has been made subject to the allowability of the loss for AY 2008-09. This stand of the DRP itself negates the observations of assessing officer that it is a notional loss and establishes that it is a business loss incurred by the assessee on mercantile system which method is consistently followed by the assessee. Under these circumstances, we are inclined to allow the foreign exchange fluctuation loss to assessee in this year. This ground of the assessee is allowed.
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2020 (10) TMI 982
Validity of reopening of assessment u/s 147 - issue of notice u/s.143(2) beyond the prescribed period - HELD THAT:- Hon'ble Supreme Court of India in the case of CIT Vs. Laxman Das Khandelwa [ 2019 (8) TMI 660 - SUPREME COURT] has held that - the notice u/s.143(2) being prerequisite, in the absence of such notice, the entire proceedings would be invalid. Therefore, the provisions of Section 143(2) of the Act and the proviso thereunder would clearly apply to the case before us. Admittedly notice u/s.143(2) of the Act was given on 24-11-2014, which is beyond the prescribed period of six months from the end of the financial year, in which the return was furnished by the assessee. - Decided in favour of assessee.
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2020 (10) TMI 981
Suppression of debtors - CIT-A deleted the addition - HELD THAT:- Entire turnover of the assessee is exclusively from Government Department and the said turnover has not been disputed by the AO. AO has also not considered the debtors of other divisions and only considered debtors of contracting division - no Government Department issues any confirmation, an issue which has been raised by the AO. AO has just made an estimated calculation and actual figures of various deductions such as TDS, Works contract Tax, Security deposit, royalty, Secured Advances (EMD), and Retention money has not been considered. These facts were not refuted by the Ld. DR at the time of hearing. AO resorted to some strange calculation finding out mismatch in the account of sundry debtors in view of the accounts derived at for the subsequent assessment year. When the AO is accepting the turnover, sales are not disputed and the AO has also not considered the actual figure of various deductions as afore-stated, in such scenario, we are of the considered view that the Ld. CIT(Appeals) was correct in deleting the addition. Addition on account of mismatch in work in progress - CIT-A deleted the addition - HELD THAT:- AO arrived at a conclusion by selecting some particular sites and taking recourse to reverse calculation on the basis of subsequent years profitability. On the facts on records, AO failed to consider specifies of each project. The facts such as escalation in some projects, were not considered. In the case of amount of escalation, there is no corresponding expenditure against the same and therefore, it would not have any impact on WIP. AO has not considered the figures and accounts of all the sites. Adoption of accounts of subsequent years cannot be the basis for calculating work in progress of the year. In view of our above observations, we do not find any reason to interfere with the findings of the Ld. CIT(Appeals). Addition on account of labour payment - AO disallowed 5% of the entire site expenses - HELD THAT:- Ground of the Revenue was against restricting of disallowance to 5% of labour charges by the Ld. CIT(Appeals). However, with the order of the Tribunal [ 2017 (12) TMI 1780 - ITAT PUNE] this 5% disallowance on labour charges has been overturned and instead 3% disallowance on labour charges has been retained. In such scenario, the ground of appeal by the Revenue before us on this issue needs to be dismissed. Appeal of the Revenue is dismissed.
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2020 (10) TMI 980
Deemed income / addition u/s 41(1) - Recovery of bad debts written off - AO held that assessee claimed deduction of provision for bad and doubtful debts u/s.36(1)(viia) of the Act out of which bad debts written off is set off - HELD THAT:- In the instant case, the bad debts written off did not exceed the credit balance in provision for bad and doubtful debts and the bad debts written off was not claimed as deduction u/s.36(1)(vii) of the Act in earlier years. This fact was not controverted by the Revenue before us. Accordingly, we hold that the provisions of Section 41(4) of the Act which has been invoked by the ld. AO in the instant case are not applicable at all in the facts of the instant case. DR had in principle agreed to the fact that the ratio laid down by the Bangalore Tribunal in the case of State Bank of Mysore [ 2009 (5) TMI 610 - ITAT BANGALORE] shall be applicable to the facts of the instant case but he pleaded for remitting back this issue to the file of the ld. AO for verification of figures alone. In this regard, we find that while giving effect to the order of the ld. CIT(A), the ld. AO would obviously allow the claim only after verifying the figures and hence, no purpose would be served by remitting this issue again to the file of the ld. AO for verification of figures. Hence, the argument made by the ld. DR in this regard is dismissed. In view of the aforesaid observations, the ground No.1 raised by the revenue is dismissed. Income accrued in India - income of its foreign branches - taxability in India - HELD THAT:- There is absolutely no finding recorded either by the ld. AO or by the ld. CIT(A) with regard to availability of relevant information with regard to payment of taxes in foreign countries by the assessee in respect of income of the foreign branches. Hence, we find considerable force in the argument advanced by the ld. DR that this aspect needs to be factually verified by the ld. AO. Hence, we deem it fit and appropriate to remand this issue to the file of the ld. AO only for the limited purpose of making following verifications:- (a) The details of branches located in country with which DTAA has been entered into, by India (b) The details of branches located in the Country with which DTAA has not been entered into, by India (c) The details of taxes paid by the foreign branches in respect of its income earned outside India. Assessee is directed to provide the aforesaid details before the ld. AO. Adjustment of refund granted by the revenue to the assessee - HELD THAT:- CIT(A) had granted relief to the assessee by placing reliance on the order of his predecessor in assessee s own case for A.Y.1995-96 wherein reliance had been placed on the decision of CIT vs. HEG Limited [ 2009 (12) TMI 35 - SUPREME COURT] and decision of India Trade Promotion Organisation vs. CIT [ 2013 (9) TMI 451 - DELHI HIGH COURT] . In the case of Bank of Baroda [ 2018 (12) TMI 1836 - ITAT MUMBAI] (authored by the undersigned) wherein it was held that the refund granted by the revenue should be first adjusted against the interest portion of refund due and balance, if any, is to be adjusted against the tax portion of refund due and interest for the subsequent period shall be calculated on such tax portion of refund due. It was also held that this would not tantamount to interest on interest claimed by the assessee and the assessee was right in claiming interest on such portion - Decided against assessee.
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2020 (10) TMI 979
Rectification of mistake - ITAT in its order has observed the fact that the matter needs to be examined and verified by the lower authorities in its paragraph No. 40 and 41 of the order but directed the AO in the paragraph No. 42 of the order to allow the claim of the assessee for the short recoveries as discussed above after necessary verification and examination which is contrary to the observation made in paragraph No. 40 and 41 of the order - HELD THAT:- MA was filed by the Revenue dated 31st December 2019 whereas order of the Hon ble High Court was passed on 17th February 2020 [ 2020 (2) TMI 1236 - GUJARAT HIGH COURT] subsequent to the date of filing the MA by the Revenue. Thus it is inferred that the order of the Hon ble High Court was not available at the relevant point of time with the Revenue i.e. at the time of filing the MA. As the order of the ITAT has merged with the order of the Hon ble Gujarat High Court on the issue raised by the revenue in the MA as discussed above, therefore there is no question of any mistake in the order of the ITAT in terms to the provision of sub-section (2) of section 254 of the Act. The ld. DR at the time of hearing has not brought anything on record to support the grievance raised by the Revenue in the MA. Accordingly, we dismiss the MA filed by the Revenue.
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2020 (10) TMI 997
Reopening of assessment u/s 147 - Assessment barred by limitation - HELD THAT:- Even though the revenue of the State is involved in the present appeal filed by the Revenue may be more than ₹ 1 Crore, the limit prescribed in the CBDE Circular for withdrawal of the appeal, we do not find any merit in the present appeal filed by the Revenue for the reason that the learned Tribunal has categorically held that there was no failure on the part of the assessee, but disclosed the relevant facts and therefore, merely on the basis of the audit objection or change of opinion and re-assessment under Sections 147 148 of the Income Tax Act, 1961, could not be made beyond the period of four years from the end of the relevant assessment year 1997-98. In the present case, the notice under Section 148 of the Income Tax Act, 1961, was issued on 26.03.2004, as per the assessment order much beyond the period of four years from the end of relevant AY 1997-98. Therefore, in our opinion, the learned Tribunal was justified in annulling the re-assessment order of the AY 1997-98 on the ground of same being barred by limitation as per proviso to Section 147 - Decided in favour of assessee.
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2020 (10) TMI 996
Reopening of assessment u/s 147 - Eligibility of reasons to believe - Employee benefit expense, long term capital gains on slump sale, Bike event expenses, legal and Professional fees, employees as PF contribution, non-deduction of tax at source under Section 194J in respect of remittances towards fee for technical/professional services, disallowance u/s 14A - HELD THAT:- All issues based on which the impugned proceedings for re-assessment have been initiated emanate from the Return of income and accompanying annexures and have been noted even at the time of original proceeding. Queries have been raised by the officer even at that juncture and the petitioner has, admittedly, furnished explanations and details in response thereto. The reasons for re-assessment themselves fairly reveal that the assumption of jurisdiction is only based on materials already available on record and no new, tangible materials have been culled thereafter. There is no dispute on the position that the alleged escapement of income, if any, is not attributable to non-disclosure of material particulars by the petitioner. The conditions precedent in the proviso to Section 147 are clearly not attracted in this case. The Supreme Court, in the case of ACIT vs ICICI Security Primary Dealership Ltd [ 2012 (8) TMI 754 - SC ORDER] considered the re-opening of an assessment beyond the period of four years confirming the quashing of the proceedings for re-assessment on the ground that there was a full disclosure of all material particulars in the return of income filed by the assessee. So too in this case. Order re-opening the assessment was not maintainable. - Decided in favour of assessee.
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2020 (10) TMI 995
Stay petition - HELD THAT:- Before the assessee had approached the Tribunal, the assessee had paid 25% of the disputed tax and as per the above orders, a further sum of ₹ 8,00,000/- had already been remitted. Therefore, we are of the considered view that the interest of the revenue is sufficiently safeguarded and nothing more is required to be done and the order of stay, which was initially granted on 11.06.2019 should continue till the appeal is heard and disposed of by the Tribunal. Writ petition is allowed and the impugned order is set aside and in the light of the reasons assigned above, there shall be an order of interim stay of the demand raised by the AO pursuant to the order of assessment dated 14.03.2016, till the appeal filed by the assessee before the Tribunal is heard and disposed of on merits and in accordance with law.
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2020 (10) TMI 978
Estimation of income - Revenue recognition method - Percentage Completion Method for recognition of revenue - HELD THAT:- Percentage Completion Method for recognition of revenue, till the F.Y. 2015-16 (A.Y. 2016-17), was not mandatory/compulsory to be followed by the assessee. It is only with effect from F.Y. 2016-17 (A.Y. 2017-18), that Percentage Completion Method has been made compulsory for the Real Estate Developers, that too for projects commencing on or after 01.04.2016, by way of introduction of Income Computation and Disclosure Standards (ICDS - III), relating to Construction Contracts. Since the assessee firm has been consistently following the same accounting policy for recognition of revenue, which has even been accepted in the past, therefore, there is no justification, on the part of the ld. AO to disturb the accounting policy adopted and thereby apply Percentage Completion Method for the relevant previous year. No infirmity in the order of the CIT(A) in holding that the assessee was consistently following the project completion method and income has been properly estimated accordingly. Accordingly, we uphold the order of the ld. CIT(A). Appeal of the revenue is dismissed.
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2020 (10) TMI 977
Cash purchases in violation of the provisions of Section 40A(3) - HELD THAT:- Assessee purchases fish from fishermen/farmers and in turn sells the articles for storage of fish (plastic crates), for which the payments are made in cash by the farmers/fishermen, which are promptly deposited by the assessee in the bank account of Sundry debtor, [M/s. Supreme Industries]. Since there is risk in carrying large quantity of cash from the rural areas of Andhra Pradesh to Kolkata while transporting back fish from State of A.P to Kolkata the assessee has consistently adopted this modus of remittance of payment to M/s. Supreme Industries. Since the genuineness of the modus operandi has not be disbelieved/doubted by the AO and the ld. CIT(A) has made a clear finding of genuineness of purchase/payments made in cash, which finding of fact has not been assailed and since the identity of the payee is not doubted and moreover, since the assessee is dealing with fish/fish food as well as for the purpose of storing the fish plastic crates are used/purchased and the CIT(A) placed reliance on the order of this Tribunal in the case of Rampada [ 2015 (11) TMI 1128 - ITAT KOLKATA] there is no ground for interference as such. We set aside the order of the CIT(A) and remand the impugned issue back to the AO with a direction that no disallowance of expenditure to be resorted to u/s. 40A(3) if the same are found to be genuine and paid to M/s. Supreme Industries. Appeal of revenue is allowed for statistical purpose.
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2020 (10) TMI 976
Addition of on-money in cash from the buyers of various flats - unexplained cash u/s 68 - Addition made by the A.O. by simply relying upon the sworn statement made u/s 132(4) of Director of the assessee company - assessee stated that he himself stated in his statements recorded U/s 132(4) of the Act during the course of search as well as past search proceedings - CIT-A deleted the addition - HELD THAT:- CBDT had issued instructions wherein it has been instructed that no surrender should be obtained and assessment should be completed not on the basis of such surrender but on the basis of material gathered during search. However, in the present case, the A.O. had made additions solely on the basis of solitary statement made by the Director of the assessee. Even the Hon ble Jurisdictional High Court of Rajasthan in the case of CWT vs. Sanwarmal Shivkumar [ 1987 (9) TMI 26 - RAJASTHAN HIGH COURT] has held that the officers of the Department are bound by the circulars of the board. Mere admission is not conclusive as to the truth of the matter. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances in which it is made. It can be shown to be erroneous or untrue. Therefore, addition made merely and solely on the basis of confession without any corroborative evidence was not sustainable in law and moreover the said confession made by the assessee was subsequently retracted and since the addition was not supported by any cogent, convincing independent documentary evidence, therefore, the same was correctly found to be not sustainable by the ld. CIT(A). No new facts and circumstances have been brought before us in order to controvert or rebut the findings so recorded by the ld. CIT(A), therefore, we see no reason to interfere or deviate from the findings so recorded by the ld. CIT(A). Therefore, we uphold the order passed by the ld. CIT(A) qua this issue. - Decided in favour of assessee.
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2020 (10) TMI 975
Disallowance of personal expenses - HELD THAT:- When the assessee was asked to explain as to why these expenses should not be disallowed as the same is not added back in the statement of income, the assessee could not furnish any explanation before the assessing authority or before the ld. CIT(A) or even before the Tribunal. Disallowance of personal expenses made by the AO and confirmed by the ld. CIT(A) stands sustained. Thus, the ground raised by the assessee is dismissed. Disallowance of road repairs and maintenance - HELD THAT:- Since the roads are being used by all general public and the same are generally maintained by the Government or local bodies, it is not clear as to whether the assessee has been permitted to carry out any repair work of the public road or not. In case, the local bodies/government claimed similar expenditures, then such expenditure would not be allowed to the assessee and thus, NOC from the local bodies is required for consideration. Moreover, it is required to be verified any similar expenditure incurred by the assessee in earlier year, and if so, whether it has been allowed or not. Case law filed by the assessee shall not come to his rescue since the assessee has not produced any agreement with the local bodies/Government for undertaking repair and maintenance work of public roads. However, as discussed above, we set aside the issue to the file of the AO for verification. Disallowance of professional fee - HELD THAT:- Since the nature of service rendered by the consultant was purely personal and assessee has submitted before the authorities below that the above amount was paid for taking advice for investments made, and not related to the business activity of the assessee, the Assessing Officer disallowed the above expenditure and brought to tax. CIT(A) confirmed the disallowance. Before us, assessee could not explain anything and filed any written submission for incurring the above expenditure towards business activities of the assessee. Accordingly, the disallowance confirmed by the ld. CIT(A) stands sustained.
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2020 (10) TMI 994
Mandatory filing electronic return of income - Prayer to declare that Rule 12 of the Income-tax Rules, 1962 requiring such mandation is ultra vires the provisions of the Income-tax Act, 1961 and the Constitution and, hence, void and of no legal effect - as prayed when it is not possible for the Petitioner to file electronic return of income for reason beyond the control of the Petitioner, the Petitioner is entitled to file the return of income in paper form - HELD THAT:- Considering that the challenge in the petition is to the vires of Rule 12 of the Income-tax Rules, 1962, issue notice to the Additional Solicitor General of India. Stand over after eight weeks. This order will be digitally signed by the Private Secretary of this Court.
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2020 (10) TMI 974
Addition u/s 40A - Whether expenditure incurred was neither in connection with setting up or formation of nor was it a contribution to any fund, referred to in section 40A (9) but was merely expenditure incurred on employee welfare through an external agency? - whether expenditure in question was incurred wholly and exclusively in the ordinary course of the business of the Appellant and as such is deductible u/s 37? - HELD THAT:- We find that the amount in question was paid for the welfare of the employees of the assessee and not as contribution to any fund, trust, etc., and therefore, in our humble understanding, provisions of sub-section 9 of section 40A are not applicable in the present case and the amount in question is allowable under section 37 and accordingly, this disallowance is deleted and this ground is allowed. MAT Computation - Disallowance u/s 14A r.w.r. 8D(ii) for the purpose of computing book profit under section 115JB - HELD THAT:- Respectfully following this judgment of Vireet Investment (P.) Ltd [ 2017 (6) TMI 1124 - ITAT DELHI] this issue is decided in favour of the assessee. Reversal of provision for bad debts in the present year to be reduced from book profit for the purpose of computing book profit u/s 115JB - Assessee argued that, revenue cannot insist in the present year that for this reason alone that there was no addition to book profit in the year of creation of provision, the deduction cannot be allowed in the present year on account of write back of provision but we do not find any merit in this argument because as per the proviso below clause (i) below explanation 1 to sub-section 2 of section 115JB as reproduced above, this is not the requirement that if book profit was computed in the year of creation of the reserve of provision and addition was not made in that year for computing book profit then only the benefit of clause (i) in Explanation 1 to section 115JB (2) will not be available. In our humble understanding, as per this proviso, the benefit of clause (i) of Explanation 1 to section 115JB (2) will not be available to the assessee if the book profit was not increased by the amount of provision made in the year of making the provision for whatever reason. Hence, we hold that there is no infirmity in the order of CIT(A) on this issue.
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Customs
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2020 (10) TMI 973
Smuggling - Betel Nuts - reasons to believe - contention of the learned counsel for the petitioner is that the petitioner received an order from one M/s Saurabh Traders for purchase of ''betel nuts' and the petitioner purchased the ''betel nuts' from the local market and send the goods to the said M/s Saurabh Traders through the transporter Nahata Transport - HELD THAT:- This Court held that the reasons to believe which are a sine-qua-non for exercising the powers under Section 110 of the Customs Act should be based upon acceptable materials and should be more than a moon shine. The reasons to believe based upon prima facie examination of goods by naked eye, opinion of the local traders as well as the inscriptions on some of the bags were not held to be a valid reasons to believe for exercising the powers under Section 110 of the Customs Act. The Court also considered the instructions in Instruction No. 1/2017 and after considering the facts has quashed the seizure order. In the present case also the Panchnama, which is stated to be the seizure order, is based upon only three factors namely, prima facie examination of goods, opinion of the local traders as well as inscriptions on some of the bags. Once this Court has held the said reasons to be not adequate for exercising of power under Section 110 of the Customs Act, the seizure order in the present case is also liable to be quashed Petition allowed.
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2020 (10) TMI 972
Direction to allow to petitioner to give his statement in presence of his counsel - Section 108 (3) of Customs Act - HELD THAT:- The petitioner may move appropriate application before the authority concerned seeking the benefit of Section 108 (3) Customs Act within a period of one week from today, in case he has already not moved such application. The authority concerned may consider and decide the said application in accordance with law, expeditiously. In case the petitioner is permitted to appear along with his agent i.e., his Lawyer; then, the authority concerned may proceed with the matter accordingly. Petition disposed off.
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2020 (10) TMI 971
Validity of SCN - Levy of Penalty u/s 112(a) of Customs Act on CHA - abetment of offence committed by the importer as against which the petitioner - scope of Sections 28(2) and 28(4) of the Customs Act, 1962 - suppression of facts or not - extended period of limitation - HELD THAT:- The benefit extended to an assessee under section 28(2) is available only in those situations falling under clauses (i) and (ii) of section 28(1)(b), that is, either where the assessee self-computes or seeks a computation from the proper officer of the duty and interest payable, and remits the same voluntarily, even prior to the receipt of a SCN from the officer and not in any other situation contemplated under Section 28 - In the present case, the SCN has been issued invoking the provisions of section 28(5) which contemplates an alternate scheme of assessment. This submission is not acceptable for the reason that it does not take note of the scheme of assessment under Section 28 as noted and explained by me in the preceding paragraphs. To reiterate the conclusion in paragraphs 12 to 17 above, the benefit under Section 28(2) is available only in the case of a regular assessment contemplated made under Section 28(1). This is made clear by the explicit exclusion in Section 28(1) of cases of collusion, wilful mis-statement or suppression of facts for the initiation of which revenue has the benefit of an extended limitation of five years. Furthermore, section 28(2) makes reference to the duty and interest remitted by the assessee computed in terms of Section 28(1), that is, in cases where there is no allegation of collusion, mis-statement or suppression of facts - The placement of Section 28(2), immediately after 28(1) is also, to my mind, supportive of the aforesaid conclusion. It is evident that it is only the remittance of duty and interest as referred to in sub-section (1) that is addressed in sub-section (2) of Section 28. The petitioner is permitted to file an appeal challenging the impugned order before the appellate authority within a period of two weeks from the date of uploading of this order. Such appeal, if filed within the period as stated hereinbefore, shall be received by the registry of the appellate authority without reference to limitation but subject to all other statutory pre-conditions and will be heard and disposed on merits - petition dismissed.
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2020 (10) TMI 970
Refund of excess duty paid on account of wrong declaration of invoice value - rejection of request for amendment of the bills - HELD THAT:- Admittedly, in the present case, the goods have been cleared for home consumption and therefore the petitioner seeks the benefit of the proviso, as per which, the petitioner/assessee would be entitled for amendment if it were able to supply sufficient evidence by way of documents that were in existence at the time of the goods were cleared, deposited or exported to establish the error - The lis in this matter revolves around the interpretation of the phrase in existence , as according to the revenue the phrase should be read as available with the Department and it is only if the documents relied upon by the petitioner seeking amendment were, in fact, on record that such amendment could even be considered. What is contemplated vide the proviso to Section 149 is an opportunity to be extended to an assessee to produce such documents that were in existence at the stipulated time that would serve to establish the error, if any, in the B/E. The genuineness of such documents or a confirmation as to whether such documents were actually in existence is certainly to be left open for thorough examination by the customs authorities and the Court would have no say in such a factual matter. Suffice it to say that the Department should take note of the documents that are presented by an assessee as being in existence at the relevant time to evidence an error sought to be amended. The rejection of the request for amendment by the respondent is set aside to be re-done de novo - Petition allowed.
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Corporate Laws
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2020 (10) TMI 969
Restoration of name of the Company in the Register of Companies, maintained by the Registrar of Companies, Kochi - delay in filing the Balance Sheets and Annual Returns - Section 252(3) of the Companies Act, 2013 - HELD THAT:- It appears from the records that vide order dated 28.07.2020, the appellant was directed to produce the Financial Statements of the Company for the Financial Year 2018-19 along with the GST Returns. The appellants produced the same on 23.09.2020. This Tribunal is of the opinion that it would be just and equitable to order restoration of the name of the Company in the Register of Companies - Registrar of Companies, the respondent herein, is ordered to restore the original status of the Appellant Company as if the name of the company has not been struck off from the Register of Companies and take all consequential actions like change of company s status from Strike off to Active (for e-filing) and to intimate the bankers about restoration of the name of the company so as to defreeze its accounts - Application allowed.
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2020 (10) TMI 968
Approval of Scheme of Arrangement by way of Amalgamation - Sections 230-232 of Companies Act, 2013, and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions were issued with respect to convening/holding or dispensing with the meetings of the Shareholders, Secured and Unsecured Creditors as well as issue of notices including by way of paper publication - notices for various statutory authorities also to be served - application allowed.
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2020 (10) TMI 967
Oppression and mismanagement - forgery of signature on the Financial Statements of the 1st Respondent Company for the Financial Years 2013-14 and 2014-15, the Power of Attorney dated 31.07.2006 and the two PANCARDS bearing Nos. ASEPK5529M and AFWPN7566B - requirement of forensic investigation or not - HELD THAT:- Considering the signature in the Financial Statements and the two PAN cards of the applicant and also perusing the letter dated 23.04.2018 sent by the Company Secretary, this Tribunal finds that there is a difference in the signature of the applicant. Hence, this tribunal is of the opinion that a forensic verification is necessary before disposing of the Company Petition. This Tribunal is of the view that the ends of natural justice would be met if all the facts that could have a bearing on the issues before us, must be brought on record. For this purpose, in exercise of the statutory powers conferred on this Tribunal under Rule 43 of the NCLT Rules 2016 and also under Section 424 of Companies Act 2013, requiring the production of documents, it is deemed necessary to call for necessary documents such as, the original audited Financial Statements for the period 2013-14 and 2014-15 signed by the Board of Directors, PAN Cards of applicant, Power of Attorney executed on 31.07.2006, in order to set a correct picture in the matter. This Tribunal hereby direct the Respondent No.1 Company to produce the original audited Financial Statements of the 1st Respondent company for the Financial Year 2013-14 and 2014-15. The applicant is also directed to produce the original Power of Attorney dated 31.07.2006 and the originals of two Pan Cards of the applicant bearing nos. ASEPK5529M and AFWPN7566B to this Tribunal in a sealed cover within two weeks from the date of receipt of this order - The applicant is directed to appear in person before this Tribunal on any working day within two weeks in order to give a specimen signature, so that the same can be sent to the Central Forensic Science Laboratory along with the documents for comparing the signature appearing in those documents. Application allowed.
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2020 (10) TMI 966
Approval of Scheme of Amalgamation - Section 230-232 of the Companies Act, 2013 - HELD THAT:- Under Section 230(9) of the Companies Act, 2013, the Tribunal may dispense with calling of a meeting of Creditor or class of Creditors where such Creditor or class of Creditors, having at least 90% value, agree and confirm, by way of affidavit, to the scheme of compromise or arrangement. More than 99% of the Shareholders, all Secured Creditors and more than 94% of the Unsecured Creditors of the Transferee Company as well as more than 99% of the shareholders and the only one Unsecured Creditor in the Transferor Company have been supporting and agreeing to the Scheme of Amalgamation and for dispensation of their meeting for approval of the scheme by way of their consent affidavits. There is no Secured Creditor in the Transferor Company. Calling of the meetings of the members of the Transferor Company and Transferee Company as envisaged under Section 230(1) of the Companies Act, 2013 is not necessary and will not serve any purpose, if called. Application disposed off.
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Insolvency & Bankruptcy
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2020 (10) TMI 965
Restoration of petition - whether the Applicant/Financial Creditor is entitled to seek restoration of the company petition that has already been disposed of, and whether the Adjudicating Authority under the Insolvency and Bankruptcy Code, 2016, has the power to do so? HELD THAT:- The applications seeking revival of a company petition disposed of as withdrawn after recording the settlement terms arrived at between the parties, is permissible in exercise of the powers conferred on the Tribunal under rule 11 of the NCLT Rules, 2016 - Incidentally, exercise of the power conferred by rule 11 of the Rules ibid for the purposes of the Code has been upheld by the Hon ble Supreme Court in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [ 2019 (1) TMI 1508 - SUPREME COURT ]. Petition is revived and restored to file.
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2020 (10) TMI 964
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - claim of Financial Creditor - time limitation - amount in question has been claimed in a civil suit before the Civil Judge (Senior Division), Amravati, by the Financial Creditor, which dismissed the application of the Financial Creditor for attachment before judgment, the appeal against the order has also been dismissed by the Hon ble Bombay High Court - suppression of facts by Financial Creditor or not. Time Limitation - HELD THAT:- The date of default mentioned in the application to be 21.09.2013. Also, the Financial Creditor has relied heavily on the acknowledgements in the balance sheets for the Financial Years 31.03.2013, 31.03.2014, 31.03.2015, 31.03.2016, 31.03.2017 and 31.03.2018, which have been attached to the petition at pp.133-219, to contend that the application filed under section 7 of the Code to be within the period of limitation. The present application filed under section 7 of the Code fails the test of limitation in so far as the Code is concerned - Application dismissed.
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2020 (10) TMI 963
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - novation of contract - suppression and misrepresentation of the facts or not - existence of debt and dispute or not - HELD THAT:- This Tribunal is of the clear view that the Adjudicating Authority is only to satisfy that the default has occurred and that the Corporate Debtor is entitled to point out that the default has not been occurred in the sense that the debt is not due. As no other person has a right to be heard at the stage of admission of the application under Section 7 and 9 of the I B Code. This Tribunal does not consider the objection raised by the guarantors to arrive at a decision in this matter. To clear this confusion regarding treatment of assets of guarantors of the corporate debtor vis- -vis the moratorium on the assets of the corporate debtor, it is clarified by way of an explanation that all assets of such guarantors to the corporate debtor shall be outside the scope of moratorium as per Section 14(3) (b) of the Code. It appears from the records that the Corporate Debtor nowhere denied the debt amount nor filed any documents to show that the claim is false, but in reply by way of counter the Corporate Debtor simply prayed to dismiss the application without showing any commendable and acceptable reasons - Under Sub-Section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be. The applicant produced the statement of account for the loan account which shows that as on 30.11.2019 a sum of ₹ 32,39,45,078/-, is due from the Corporate Debtor. It has also been established that admittedly there is a Default as defined under Section 3 (12) of the Code on the part of the Corporate Debtor and the nature of debt is a financial debt as defined under Section 5(8) of the Code. The application on behalf of Financial Creditor is complete and there is default in the payment of the financial debt. Therefore, as per Section 7(5)(a) of the code, the present application filed U/S 7 of the I B Code deserves to be admitted against the Corporate Debtor. Application admitted - moratorium declared.
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2020 (10) TMI 962
CIRP Proceedings - submission of claim before RP on the basis of an Arbitral Award - Change in voting percentage - The Appellant after becoming Member of COC, objected to part claim of OBC, to the extent it is based on corporate guarantees given by the Corporate Debtor for third party dues-debts. Appellant objected that, such part of the claim is not Financial Debt and to that extent voting right percentage of OBC should be reduced . - HELD THAT:- In the present matter, there was disbursal of debt by the bank to the third parties and the Corporate Debtor gave guarantee for repayment of such debt when it became outstanding. Clearly, the loan advanced carried the element of consideration for time value of money and when such disbursal was guaranteed, it has to be treated as a financial debt under Section 5(8)(a) read with (i) of IBC - The third party was advanced debt which was admittedly given by the Financial Creditor to the said third party. Even if Corporate Debtor issued guarantee in recovery proceeding for the financial debt of third party and in default the said guarantee/s have been invoked by the Financial Creditor, the Corporate Debtor is liable to pay the amount being amount of liability in respect of guarantee issued which falls in the definition of Section 5(8)(i) of IBC. Counsel for Appellant did not show as to how findings as recorded by the Adjudicating Authority with regard to India Bulls were not sustainable. Going through the record, we do not find any reason to interfere with the findings as recorded by the Adjudicating Authority in connection to the claim entertained of India Bulls - the inclusion of entire claim of Oriental Bank of Commerce (now PNB) and India Bulls (Respondent No.3) and the determination of the voting percentage of the members of COC on the basis of admitted claims of these Financial Creditors, is legal and proper. Appeal dismissed.
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2020 (10) TMI 961
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Non-performing Asset - time limitation - main ground in the present appeal is that application under section 7 of the I and B Code was filed in December 2018, i. e., after a delay of almost five years - applicability of section 18 of the Limitation Act, 1963 to insolvency cases - HELD THAT:- The corporate debtor's balance-sheet cannot be considered as an acknowledgment under section 18 of the Limitation Act, 1963. The issue was considered explicitly by the five hon'ble Members of this Appellate Tribunal in the case of V. Padmakumar v. Stressed Assets Stabilisation Fund (SASF) [ 2020 (3) TMI 1244 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI ] and held that the books of account are required to be prepared under the obligation casted under section 92 of the Companies Act, 2013. Therefore, it cannot amount to an acknowledgment for section 18 of the Limitation Act, 1963. The acknowledgment to extend the period of limitation should be voluntary and cannot be given under the compulsion of law or with the threat of any penalty/punishment. We are unable to convince with the argument of learned counsel for the corporate debtor that section 18 of the Limitation Act, 1963 is not applicable to insolvency cases. The judgment in V. Padmakumar v. Stressed Assets Stabilisation Fund (SASF) requires reconsideration on following reasons : (I) There is consistent view of the hon'ble Supreme Court and High Court of Allahabad, Calcutta, Delhi, Karnataka, Kerala and Telangana that the entries in the balance-sheet of the company be treated as an acknowledgment of debt for the purpose of section 18 of the Limitation Act, 1963. The majority view in V. Padmakumar v. Stressed Assets Stabilisation Fund (SASF) is just contrary to settled law. (II) In V. Padmakumar v. Stressed Assets Stabilisation Fund (SASF) minority view is in the line of settled law that balance-sheet of the company, be treated as acknowledgment of debt for the purpose of section 18 of the Limitation Act, 1963. In the majority judgment no reasons have been assigned for disagreement with this view. (III) In support of majority judgment in V. Padmakumar v. Stressed Assets Stabilisation Fund (SASF) none of the precedent cited before us. (IV) In V. Padmakumar v. Stressed Assets Stabilisation Fund (SASF), it is discussed that the balance-sheet of the company is prepared pursuant to section 92 of the Companies Act, 2013 and filing of balance-sheet/annual return being mandatory under section 92(4) of the Companies Act, 2013, failing of which attracts penal action under section 92(5) and (6) of the Act. In our humble opinion balance- sheet is not annual return but is a financial statement. Financial statement is defined under section 2(40) of the Companies Act, 2013. (V) In V. Padmakumar v. Stressed Assets Stabilisation Fund (SASF) it is held that the balance-sheet is required to be prepared under the obligation casted under section 92 of the Companies Act, 2013. Therefore, it cannot amount to an acknowledgment for section 18 of the Limitation Act, 1963. The acknowledgment should be voluntary and cannot be given under compulsion of law or with the threat of any penalty/punishment. The hon'ble Calcutta High Court in the case of Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff, [ 1961 (4) TMI 113 - CALCUTTA HIGH COURT ] held that merely on the ground that the balance-sheet of the company is prepared under the compulsion of law or in discharge of statutory duty, it cannot be held that the balance-sheet of the company cannot amount to an acknowledgment of liability. (VI) The balance-sheet is a material document attached with sanctity that must be submitted to the Registrar of Companies and is used for obtaining a business loan or investments. Relevant provisions in regard to balance-sheet of the company provided in sections 129, 130, 131, 134, 137, 143 and 397 of the Companies Act. Sections 130 and 131 provides that a company cannot reopen its books of account and financial statement without the order made by the court of competent jurisdiction or the Tribunal. Directors of the company after making judgments and estimates that are reasonable and prudent cannot resile without permission of the Tribunal. (VII) Section 397 of the Companies Act, provides that the documents filed for the purpose of the Companies Act, and Rules made thereunder by a company with the Registrar shall be admissible in any proceedings there under. Without proof or production of original as evidence of any contents of the original or of any fact stated therein of which direct evidence is admissible. Thus, with all great respect to the hon'ble Five Members Bench of this Appellate Tribunal that V. Padmakumar v. Stressed Assets Stabilisation Fund (SASF) requires reconsideration. Hence, we are referring the matter - the matter be referred to a Bench of five hon'ble Members of this Appellate Tribunal.
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2020 (10) TMI 952
Application for taking additional documents on record - HELD THAT:- The prayer of the Appellant is allowed to file such application within a week and supply advance copy to opponent counsel so that the opponent counsel may be able to file Reply of the same. Let the Appeal be fixed For Admission (After Notice) on 12th October, 2020.
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2020 (10) TMI 960
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute - Share application money - HELD THAT:- The Respondent's first contention that he has already paid the full and final amount of ₹ 1.03 Crore pursuant to amicable settlement of dispute as recorded in order dated 11th October, 2017 of the Hon'ble National Company Law Tribunal passed in CP No. 205(ND)/2017, the Applicant has accepted the fact that the said amount has been duly received by him but argued that the interest on that amount has not been paid. On our perusal of provisions of section 42 of Companies Act, 2013 and Companies (Acceptance of Deposit) Rules, 2014 as well as of the definition of financial debt under the Code - The Applicant's contention that while returning the principal amount the cheque bearing No. 070259 dated 26.06.2018 for ₹ 1,52,37,000/- was given as interest which was dishonoured whereas, the Respondent argued that the respondent company had lodged a police complaint for lost cheque No. 070259 and the Applicant misused that cheque. The Tribunal is of the view that National Company Law Tribunal is not the correct authority to adjudicate in the matters related to the negotiable Instruments. The matter between both the parties was amicably settled as recorded in order dated 11th October, 2017 of the Hon'ble National Company Law Tribunal passed in CP No. 205(ND)/2017, between the parties along with that the Respondent failed to show any agreement to substantiate the fact that money was paid as a financial debt or that the money was paid against the payment of interest - the share application money does not fall under any of the clauses of Section 5(8) of the Code and it cannot be said to fall under the definition a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money since no debt was disbursed by the Applicant to the Respondent and no time value has been attached with the share application money. Thus, since the claim is not a financial debt the present application under Section 7 of the Code is not maintainable and is dismissed with no costs. Application dismissed.
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2020 (10) TMI 959
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - scope of Financial Credit - Competent person or not - disputed debt of debt due - time limitation - legally recoverable debt or not. Whether Application filed by the Financial Creditor is not filed by a competent person? - HELD THAT:- The Financial Creditor has the proper authority to file the present application, and the objection raised by the counsel for the Corporate Debtor is merely incongruous, and therefore, holds no water. Moreover, the Financial Creditor has annexed the Board Resolution dated 05.08.2019 authorising Deputy Manager (Legal) to represent the Financial Creditor before various forums from time to time - there are no merit in the argument made by the Corporate Debtor in this connection. Whether the alleged debt in the application is a disputed debt and it is not 'due'? - HELD THAT:- It is settled law as decided by the Hon'ble NCLAT in its order in Vinayaka Exports and Anr Vs M/s Colorhome Developers Pvt. Ltd [ 2019 (9) TMI 968 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI ] the existence of dispute is not relevant for Financial Creditor. Therefore, there are no merit in the contention raised by the Corporate Debtor. Whether application filed by the Financial Creditor under Section 7 of Insolvency and Bankruptcy Code, 2016 is barred by limitation? - HELD THAT:- It is now a settled case law that the acknowledgement of debt in the balance sheet of the Corporate Debtor extends the period of limitation - From the records it is observed that the Corporate Debtor from 2012 to 2019 made entries in the Balance Sheet about the amount due to the Financial Creditor - this amounts to acknowledgement of debt and, therefore, the application is not barred by the limitation. Whether the respondent Corporate Debtor is not a Corporate Debtor as there is no legally recoverable debt? - HELD THAT:- It is evident that the Corporate Debtor defaulted in repaying the loan, Revenue Recovery notice and requisition was initiated by the Financial Creditor against the Corporate Debtor and its guarantors in the year 2012. Against the said action, several Writ Petitions were filed by the Corporate Debtor and its guarantors to obtain stay against the RR action initiated by the Financial Creditor. Even otherwise, it is trite and a well settled law that pendency of proceedings before other forums is not a bar to initiation of Corporate Insolvency Resolution Process under Section 7 of the Insolvency and Bankruptcy Code, 2016 - the Financial Creditor is trying to recover his dues through various legal actions which was being contested by the Corporate Debtor at every stage. In the absence of any adverse order in the above proceedings and after thoroughly perusing the documents executed by the Corporate Debtor with the Financial Creditor, the debt in question is legally recoverable debt and therefore reject the contention that respondent company is not a Corporate Debtor as there is no legally recoverable debt. Thus, the present application filed by the Financial Creditor is satisfying all the definitions of Financial Creditor , Default and Financial Debt and qualifies for filing an application under Insolvency and Bankruptcy Code - the Application under Sub-Section (4) of Section 7 of I B Code, 2016 is complete and deserves to be admitted for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor. Application admitted - moratorium declared.
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Central Excise
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2020 (10) TMI 957
Permission for withdrawal of appeal - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- The appeals are dismissed as deemed to have been withdrawn as per section 127(6) of the Finance Act (No.2), 2019.
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2020 (10) TMI 958
Demand of Interest over differential duty or unpaid service tax - Direction to deposit the arrears of interest on the enhanced rate of washed coking coal dispatched to the Steel Authority of India Limited (SAIL) in terms of long terms agreement between the SAIL and this petitioner Bharat Coking Coal Limited (BCCL) for the period from April 2011 to March, 2012 - Section 87 of the Finance Act, 1994 - HELD THAT:- By virtue of this judgment in the case of M/S. STEEL AUTHORITY OF INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [ 2019 (5) TMI 657 - SUPREME COURT] the issue now stands settled that the assessee is liable to pay interest upon the differential duty and / or the unpaid service tax detected by the Revenue. Petition dismissed.
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CST, VAT & Sales Tax
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2020 (10) TMI 956
Exemption from payment of entry tax - certificate granted to the petitioner under the Madhya Pradesh Udyog Nivesh Samvardhan Sahayta Yojna, 2004 and 2010 - contention of the petitioner is that the petitioner Company is engaged in the manufacturing of technical textile, chemicals, engineering, plastics packaging films, refrigerant gases at various locations in India and overseas - HELD THAT:- The respondents have carried out the reassessment only in respect of five assessment years ie., 2004-05, 2006- 07 and 2011-12 to 2012-13 and exemption has been granted only in respect of five assessment years. The respondents ought to have re-assessed the assessment years w.e.f. 2007- 08 to 2010-11 also. The petitioner has submitted more than a dozen of applications to the Commissioner for granting exemption in respect of the remaining years and the Commissioner does have the power u/S. 47 of the M. P. VAT Act. The Commissioner is having a power of suo-moto revision also and this power could have been exercised by the Commissioner keeping in view Sec.5 of the Limitation Act. Thus, it is wrong on the part of the State Government to state that the statute does not provide for reopening of cases which are time barred even though reasonable explanation is provided - In the present case, as the exemption certificate has been granted in the year 2017 only, the petitioner was justified in immediately approaching the Authorities for grant of exemption and his request could not have been turned in the manner and method it has been done by the respondents. The inaction on the part of the Department is bad in law. The assessment orders passed by the Department for four years ie., 2007-08, 2008-09, 2009-10 and 2010-11 deserves to be set aside and are accordingly hereby set aside. It is nobody's case that the exemption certificate has been withdrawn or was erroneously granted and the respondent State has admitted grant of exemption certificate and, therefore, once exemption certificate was granted, the Department cannot take advantage of technicalities, especially when the certificate itself was granted in the year 2017 with retrospective effect. The respondents are directed to confer all benefits to the petitioner in terms of the Entry Tax Exemption Certificate dated 13/7/2017 and as a consequence the impugned assessment orders for four years ie., 2007-08, 2008-09, 2009-10 and 2010-11 are set aside - Petition allowed.
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2020 (10) TMI 955
Principles of Natural Justice - validity of Penal Interest Order and Penalty Order - tax payments were made belatedly by the petitioner - periods April, 2016 to June, 2016, September, 2016, October, 2016 and December, 2016 to March, 2017 - HELD THAT:- The 1st respondent passed the impugned orders on 21.08.2020 levying both penal interest and penalty by separate Proceedings without considering the objections by merely stating that the contention of the petitioner is not considered. There is no discussion about the detailed objections filed by the petitioner on 21.11.2019 or reply dt.27.12.2019 - Since there is non-consideration of the objections dt.21.11.2019 or reply dt.27.12.2019 filed by the petitioner to the show-cause notice dt.01.11.2019, the impugned Penalty Order as well as Penal Interest Order cannot be sustained. The matters are remanded to the 1st respondent to consider the objections dt.21.11.2019 and 27.12.2019 filed by the petitioner, provide a personal hearing to the petitioner, pass a reasoned order in accordance with law and communicate the same to the petitioner - petition allowed by way of remand.
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2020 (10) TMI 954
Principles of Natural Justice - Concessional rate of tax - sale of the used motor vehicles - case of petitioner is that no opportunity of hearing was granted, except permission to file reply, even the rate of tax as per Section 6(1) of the KVAT has not been charged properly - HELD THAT:- Discretion by warranting interference under Article 226 of the Constitution of India can be always exercised in case, on perusal of the impugned order, prima facie, it is established to be without jurisdiction or non- adherence to the principles of natural justice. But the argument of counsel representing the petitioner is apparently not tenable on plain perusal of the impugned order as not only the reply was ordered to be given on 28.02.2020 even the Assistant Manager of the petitioner also appeared and he argued the matter as noticed in the impugned order. There is no such assertion in the writ petition with regard to that. The aforementioned order is appealable under Section 55 of the erstwhile KVAT Act, 2003. Petition dismissed.
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Indian Laws
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2020 (10) TMI 953
Direction to the respondents to make appointments against all vacant posts in the Consumer Forum - relief of extension of the term of Shri O.P. Gupta as Member (Judicial), State Consumer Disputes Redressal Commission, Delhi till appointments are made - HELD THAT:- The applicant was appointed as a Member (Technical) in CESTAT on 29.3.2018. According to Rule 16 of 1987 Rules, the age of superannuation of a Member is 62 years - The applicant is sought to be retired on 9.8.2020 by applying the old Rules. It is submitted by Mr. C.S. Vaidyanathan, learned senior counsel that the applicant is entitled to continue for a period of four years in accordance with Tribunal, Appellate tribunal and other Authorities (Qualification, Experience and other conditions of Service of Members) Rules, 2020 ( 2020 Rules ). For the present, we extend the term of the applicant for a period of three months. A status report relating to the appointments to the posts of Members of Central Administrative Tribunal shall be filled before the next date of hearing. List the I.A. s on 7.9.2020.
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