TMI Tax Updates - e-Newsletter
October 3, 2019
Case Laws in this Newsletter:
GST
Income Tax
Customs
Insolvency & Bankruptcy
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
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GST:
Construction service - preferential location service (PLS) - PLS should come under category no. 3(iii) as the other two categories are clearly defined. Abatement for supply of the service mentioned under Sl. No. 3(i) has been allowed - No abatement has been provided for service mentioned under Sl. No. 3(iii) of the said Table of the notification. - The same hold for right to use car parking space also.
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GST:
Grant of alcoholic liquor licence neither a supply of goods nor a supply of service as per Section 20(i) of IGST Act read with Section 7(2) of CGST Act.
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GST:
Notification No. 07/2019 - IGST(Rate) amended, by amending the entry related to cement.
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GST:
Notification No. 04/2018 - IGST(Rate) amended, by adding an explanation on the applicability of provisions related to supply of development rights.
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GST:
Notification No. 10/2017 - IGST(Rate) amended, so as notify certain services under reverse charge mechanism (RCM) as recommended by GST Council in its 37th meeting held on 20.09.2019.
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GST:
Notification No. 09/2017 - IGST(Rate) amended, so as exempt certain services as recommended by GST Council in its 37th meeting held on 20.09.2019.
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GST:
Notification No. 08/2017 - IGST(Rate) amended, so as to notify GST rates of various services as recommended by GST Council in its 37th meeting held on 20.09.2019.
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GST:
Supply of goods for specified projects under FAO exempted from GST
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GST:
Notification No 27/2018 - IGST(Rate) amended, so as to exempt IGST on supplies of silver and platinum by nominated agencies to registered persons.
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GST:
Notification No 3/2017 - IGST(Rate) amended, so as to extend concessional IGST rates to specified projects under HELP/OALP, and other changes.
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GST:
Notification No 2/2017 - IGST(Rate) amended, to grant exemption to dried tamarind and cups, plates made of leaves, bark and flowers of plants.
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GST:
Notification No 1/2017 - IGST(Rate) amended, so as to specify effective IGST rates for specified goods, to give effect to the recommendations of the GST Council in its 37th meeting dated 20.09.2019.
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GST:
Place of supply of R&D services related to pharmaceutical sector as per Section 13(13) of IGST Act, as recommended by GST Council in its 37th meeting held on 20.09.2019.
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Income Tax:
Characterization of income - Income from giving furniture on hire - 'Income from Other Sources’ - Furniture and fixtures are business assets of the assessee, hence, income generated from giving furniture on hire is business income of the assessee.
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Income Tax:
Transfer pricing adjustment - Majority of transactions have been accepted to be at arm's length price by the TPO by applying TNMM method, only in respect of few transactions, the TPO had applied CUP method. There is no merit in the order of TPO in this regard.
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Customs:
Imports by FAO for specified projects exempted from duty of customs subject to conditions.
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Customs:
Notification No. 39/96-Customs amended, so as to extend the exemption provided to the Light Combat Aircraft Programme of the Ministry of Defence till 03.12.2021.
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Customs:
Notification No 50/2017-Customs amended, to give effect to the recommendations of the GST Council in its 37th meeting dated 20.09.2019.
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Customs:
Notification No. 19/2019- Customs amended, so as to exempt from IGST specified defence goods, to give effect to the recommendations of the GST Council in its 37th meeting dated 20.09.2019.
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Customs:
Transshipment of Cargo to Nepal under Electronic Cargo Tracking System Regulations, 2019
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Customs:
Duty Drawback - Section 74 - period of limitation for re-export - Appellants cannot be put to jeopardy due to the objections raised by the department which to a greater extent got nullified - the reexport should be treated as made in time and drawback should be allowed to the extent of the part of the goods that were actually reexported.
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Customs:
Illegal import - undeclared cargo - Import Manifest - it is apparent that propane carried on was not cargo but ship store. In these circumstances, there was no requirement to include the propane gas in the cargo declaration in Form-III.
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Customs:
Arrest of person after cancellation of Application for anticipatory bail by the sessions court - Compoundable Offences - the arresting officer is obliged to inform the arrestee that the offence is bailable and would be further obliged to release the arrestee on bail by virtue of provisions of section 104(3) of the Customs Act, 1962 - HC
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Customs:
Maintainability of petition before HC - appealable order - ADD - Sunset review - invocation of provisions of section 9A of Custom Tariff Act and Rules - HC allowed the petition in favour of the petitioners - It was ill-advised for the High Court to entertain the writ petition - SC
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Customs:
Valuation of imported goods - copper scrap & heavy melting scrap - There is no evidence on record that the transaction value paid by the appellant to the foreign exporter is incorrect and some more consideration stands paid to them - There are no reasons to uphold the enhancement.
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DGFT:
Procedure for availing Transport and Marketing Assistance (TMA) for Specified Agriculture Products - amendments in Aayat Niryat Form -7(A)A
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DGFT:
Imports of Pulses for the fiscal year 2019-20 - all importers are requested to stick to the date and complete their import by 31.10.2019, failing which the importers may be debarred for allotment of quota of pulses in future.
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Corporate Law:
Extension of Date - For the financial year ending on 31st March,2019, the individual shall submit e-form DIR-3 KYC or web form DIR-3 KYC-WEB, as the case may be, on or before the 14th October, 2019
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Service Tax:
CENVAT Credit - Rule 6(3) - Service Tax authorities can choose one of the options on behalf of the service provider - the adjudicating authority did not even choose to deal with the binding case law cited before him while dealing with the issues arising for consideration. This arrogant and arbitrary approach adopted by the adjudicating authority cannot be countenanced - HC
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Central Excise:
Process amounting to manufacture or not - the activity of the appellant in cutting, etc., of aluminium composite panels for the purpose of cladding amounts to manufacture
Articles
Notifications
Companies Law-
F.No. 1/22/2013-CL-V - G.S.R. 750 (E) - dated
30-9-2019
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Co. Law
Companies (Appointment and Qualification of Directors) Fourth Amendment Rules, 2019.
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F. No. 01/16/2013 CL-V (Pt-I) - G.S.R. 749 (E) - dated
30-9-2019
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Co. Law
Companies (Registration Offices and Fees) Fifth Amendment Rules, 2019
Customs-
35/2019 - dated
30-9-2019
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Cus
Seeks to amend notification No. 19/2019- Customs, dated the 6th July, 2019 so as to exempt from IGST specified defence goods, to give effect to the recommendations of the GST Council in its 37th meeting dated 20.09.2019.
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34/2019 - dated
30-9-2019
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Cus
Seeks to further amend notification No 50/2017-Customs dated 30th June, 2017 to give effect to the recommendations of the GST Council in its 37th meeting dated 20.09.2019.
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33 /2019 - dated
30-9-2019
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Cus
Seeks to amend notification No. 39/96-Customs dated 23.07.1996 so as to extend the exemption provided to the Light Combat Aircraft Programme of the Ministry of Defence till 03.12.2021.
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32/2019 - dated
30-9-2019
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Cus
Seeks to exempt imports by FAO for specified projects.
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68/2019 - dated
30-9-2019
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Cus (NT)
Transshipment of Cargo to Nepal under Electronic Cargo Tracking System Regulations, 2019
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67/2019 - dated
30-9-2019
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Cus (NT)
Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Silver- Reg
GST-
43/2019 - dated
30-9-2019
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CGST
Seeks to amend notification No 14/2019- Central Tax dated 7.3.2019 so as to exclude manufacturers of aerated waters from the purview of composition scheme.
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25/2019 - dated
30-9-2019
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CGST Rate
Seeks to notify the grant of alcoholic liquor licence neither a supply of goods nor a supply of service as per Section 7(2) of CGST Act, 2017
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24/2019 - dated
30-9-2019
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CGST Rate
Seeks to amend notification No. 7/2019 - Central Tax (Rate), dated the 29th March, 2019 by amending the entry related to cement.
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23/2019 - dated
30-9-2019
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CGST Rate
Seeks to amend notification No. 4/2018 - Central Tax (Rate), dated the 25th January, 2018, by adding an explanation on the applicability of provisions related to supply of development rights.
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22/2019 - dated
30-9-2019
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CGST Rate
Seeks to amend notification No. 13/2017- Central Tax (Rate) so as to notify services under reverse charge mechanism (RCM) as recommended by GST Council in its 37th meeting held on 20.09.2019.
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21/2019 - dated
30-9-2019
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CGST Rate
Seeks to amend notification No. 12/2017- Central Tax (Rate) to exempt services as recommended by GST Council in its 37th meeting held on 20.09.2019.
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20/2019 - dated
30-9-2019
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CGST Rate
Seeks to amend notification No. 11/2017- Central Tax (Rate) so as to notify CGST rates of various services as recommended by GST Council in its 37th meeting held on 20.09.2019.
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19/2019 - dated
30-9-2019
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CGST Rate
Seeks to exempt supply of goods for specified projects under FAO.
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18/2019 - dated
30-9-2019
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CGST Rate
Seeks to amend notification No 2/2019- Central Tax (Rate) dated 7.3.2019 so as to exclude manufacturers of aerated waters from the purview of composition scheme.
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17/2019 - dated
30-9-2019
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CGST Rate
Seeks to amend notification No 26/2018- Central Tax (Rate) dated 31.12.2018, so as to exempt CGST on supplies of silver and platinum by nominated agencies to registered persons.
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16/2019 - dated
30-9-2019
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CGST Rate
Seeks to amend notification No 3/2017- Central Tax (Rate) dated 28.6.2017 so as to extend concessional CGST rates to specified projects under HELP/OALP, and other changes
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15/2019 - dated
30-9-2019
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CGST Rate
Seeks to amend notification No 2/2017- Central Tax (Rate) dated 28.6.2017 so as to grant exemption to dried tamarind and cups, plates made of leaves, bark and flowers of plants.
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14/2019 - dated
30-9-2019
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CGST Rate
Seeks to amend notification No 1/2017- Central Tax (Rate) dated 28.6.2017 so as to specify effective CGST rates for specified goods, to give effect to the recommendations of the GST Council in its 37th meeting dated 20.09.2019.
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03/2019 - dated
30-9-2019
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GST CESS Rate
Seeks to disallow the refund of compensation cess in case of inverted duty structure for tobacco and manufactured tobacco substitutes.
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02/2019 - dated
30-9-2019
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GST CESS Rate
Seeks to amend notification No. 1/2017-Compensation Cess (Rate), dated 28.6.2017 on the recommendations of the GST Council in its 37th meeting dated 20.09.2019.
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04/2019 - dated
30-9-2019
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IGST
Place of supply for certain services notified as per Section 13(13) of IGST Act.
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24/2019 - dated
30-9-2019
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IGST Rate
Seeks to notify the grant of alcoholic liquor licence neither a supply of goods nor a supply of service as per Section 20(i) of IGST Act read with Section 7(2) of CGST Act.
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23/2019 - dated
30-9-2019
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IGST Rate
Seeks to amend notification No. 07/2019 - Integrated Tax (Rate), dated the 29th March, 2019 by amending the entry related to cement.
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22/2019 - dated
30-9-2019
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IGST Rate
Seeks to amend notification No. 04/2018 - Integrated Tax (Rate), dated the 25th January, 2018, by adding an explanation on the applicability of provisions related to supply of development rights.
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21/2019 - dated
30-9-2019
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IGST Rate
Seeks to amend notification No. 10/2017- Integrated Tax (Rate) so as notify certain services under reverse charge mechanism (RCM) as recommended by GST Council in its 37th meeting held on 20.09.2019.
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20/2019 - dated
30-9-2019
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IGST Rate
Seeks to amend notification No. 09/2017- Integrated Tax (Rate) so as exempt certain services as recommended by GST Council in its 37th meeting held on 20.09.2019.
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19/2019 - dated
30-9-2019
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IGST Rate
Seeks to amend notification No. 08/2017- Integrated Tax (Rate) so as to notify GST rates of various services as recommended by GST Council in its 37th meeting held on 20.09.2019.
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18/2019 - dated
30-9-2019
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IGST Rate
Seeks to exempt supply of goods for specified projects under FAO.
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17/2019 - dated
30-9-2019
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IGST Rate
Seeks to amend notification No 27/2018- Integrated Tax (Rate) dated 31.12.2018 so as to exempt IGST on supplies of silver and platinum by nominated agencies to registered persons.
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16/2019 - dated
30-9-2019
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IGST Rate
Seeks to amend notification No 3/2017- Integrated Tax (Rate) dated 28.6.2017 so as to extend concessional IGST rates to specified projects under HELP/OALP, and other changes.
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15/2019 - dated
30-9-2019
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IGST Rate
Seeks to amend notification No 2/2017- Integrated Tax (Rate) dated 28.6.2017 to grant exemption to dried tamarind and cups, plates made of leaves, bark and flowers of plants.
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14/2019 - dated
30-9-2019
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IGST Rate
Seeks to amend notification No 1/2017- Integrated Tax dated 28.6.2017 so as to specify effective IGST rates for specified goods, to give effect to the recommendations of the GST Council in its 37th meeting dated 20.09.2019.
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25/2019 - dated
30-9-2019
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UTGST Rate
Seeks to notify the grant of alcoholic liquor licence neither a supply of goods nor a supply of service as per Section 21(i) of UTGST Act read with Section 7(2) of CGST Act, 2017.
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24/2019 - dated
30-9-2019
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UTGST Rate
Seeks to amend notification No. 07/2019 - Union Territory Tax (Rate), dated the 29th March, 2019 by amending the entry related to cement.
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23/2019 - dated
30-9-2019
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UTGST Rate
Seeks to amend notification No. 04/2018 - Union Territory Tax (Rate), dated the 25th January, 2018, by adding an explanation on the applicability of provisions related to supply of development rights.
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22/2019 - dated
30-9-2019
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UTGST Rate
Seeks to amend notification No. 13/2017- Union Territory Tax (Rate) so as to notify certain services under reverse charge mechanism (RCM) as recommended by GST Council in its 37th meeting held on 20.09.2019.
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21/2019 - dated
30-9-2019
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UTGST Rate
Seeks to amend notification No. 12/2017- Union Territory Tax (Rate) so as to exempt certain services as recommended by GST Council in its 37th meeting held on 20.09.2019.
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20/2019 - dated
30-9-2019
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UTGST Rate
Seeks to amend notification No. 11/2017- Union Territory Tax (Rate) so as to notify GST rates of certain services as recommended by GST Council in its 37th meeting held on 20.09.2019.
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19/2019 - dated
30-9-2019
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UTGST Rate
Seeks to exempt supply of goods for specified projects under FAO.
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18/2019 - dated
30-9-2019
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UTGST Rate
Seeks to amend notification No 2/2019- Union territory Tax (Rate) dated 7.3.2019 so as to exclude manufacturers of aerated waters from the purview of composition scheme.
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17/2019 - dated
30-9-2019
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UTGST Rate
Seeks to amend notification No 26/2018- Union territory Tax (Rate) dated 31.12.2018 so as to exempt UTGST on supplies of silver and platinum by nominated agencies to registered persons.
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16/2019 - dated
30-9-2019
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UTGST Rate
Seeks to amend notification No 3/2017- Union territory Tax (Rate) dated 28.6.2017 so as to extend concessional UTGST rates to specified projects under HELP/OALP, and other changes.
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15/2019 - dated
30-9-2019
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UTGST Rate
Seeks to amend notification No 2/2017- Union territory Tax (Rate) dated 28.6.2017 so as to grant exemption to dried tamarind and cups, plates made of leaves, bark and flowers of plants.
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14/2019 - dated
30-9-2019
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UTGST Rate
Seeks to amend notification No 1/2017- Union territory Tax (Rate) dated 28.6.2017 so as to specify effective UTGST rates for specified goods, to give effect to the recommendations of the GST Council in its 37th meeting dated 20.09.2019.
Circulars / Instructions / Orders
News
Case Laws:
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GST
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2019 (10) TMI 35
Construction service - preferential location service (PLS) - Composite/principal supply - whether the supply of these services of PLS including floor rise, directional advantage constitutes a composite supply with construction service as the principal supply? - whether abatement prescribed for construction service under Sl. No. 3(i) read with Paragraph 2 of Notification No. 11/2017-CT (Rate) dated 28/06/2017 (corresponding State Notification No. 1135-FT dated 28/06/2017), as amended from time to time is applicable on the entire value of such composite supply? HELD THAT:- The abatement, which is allowed on the value of construction service, as the plot of land on which construction is done is not liable to GST, cannot be deemed to be applicable in respect of PLS, which is altogether a separate service having no association with the land - It is clear from the said categorization that PLS should come under category no. 3(iii) as the other two categories are clearly defined. Abatement to the extent of 1/3 rd of the total amount charged for supply of the service mentioned under Sl. No. 3(i) of the Rate Notification has been allowed under para 2 of the said Notification. No abatement has been provided for service mentioned under Sl. No. 3(iii) of the said Table. Thus, no abatement prescribed for construction service under Sl.No. 3(i) read with paragraph 2 of notification No. 11/2017-CT (Rate) dated 28-06-2017 (corresponding State Notification No. 1135-FT dated 28/06/2017) as amended form time to time is applicable on the value of Preferential Location Service realised separately from the buyers. Decision as above in respect of PLS will also hold for right to use car parking space. Appeal disposed off.
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2019 (10) TMI 34
Release of detained goods - section 129(1) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- It appears that one of the grounds mentioned in the order was that the driver or the authorized person was not present, even though the driver had signed the statement at the time of detention. The petitioner orally requested the respondent authorities to release the goods since they were accompanied by eway bill and tax invoice, however, the respondent authorities did not accede to such request. Since the respondent No.2 is refusing to release the goods without payment of tax, penalty as well as redemption fine equal to the value of goods, as mentioned in the impugned notice, the petitioner has approached this court seeking release of the goods in question. Since the present petition is filed only to release the goods being packing materials/aluminum foils, in the light of the averments made in the affidavit-in-reply filed on behalf of the respondents, wherein they do not object to the release of the goods in question, the petition deserves to be allowed. Petition allowed.
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2019 (10) TMI 33
Release of Seized vehicle alongwith goods - CGST Act - E-way bill was not tendered for the goods in movement - machinery on the way to be taken back to the premises of the petitioner directly to Yadav Trading Co., namely, the dealer from whom the machinery has been purchased for the purpose of repairs - HELD THAT:- The old and used Winch Machine was being transported from the premises of Yadav Trading Co. where it had been sent for repairs and was being transported back to Nirma Ltd., there is substance in the submissions made by the learned advocate for the petitioner that at best, the petitioner would be liable to pay fine of ₹ 10,000/- as contemplated under clause (xiv) of section 122 of the GGST Act, 2017. Issue notice, returnable on 17.10.2019.
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2019 (10) TMI 32
Release of seized vehicle with goods - the petitioner is ready and willing to deposit a sum of ₹ 4,00,000/under protest for the release of the vehicle in question - HELD THAT:- By way of interim relief, the respondents shall forthwith release the Truck belonging to the petitioner, upon the petitioner depositing a sum of ₹ 4,00,000/with the concerned authority, which shall be under protest. Issue Rule, returnable on 17.10.2019.
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2019 (10) TMI 31
Permission for withdrawal of petition - Input tax credit - input service distribution - allowing credit of GST paid on reverse charge and distribute it to other units - Rule 54(1) of the Central Goods and Service Tax Rules, 2017 - HELD THAT:- Mr. Chavda states that the Petitioner will file a representation within two weeks from today to the Nodal Officer Commissioner of Central Tax and Central Excise Mumbai-Central, Churchgate. This representation would be decided by the Nodal Officer as expeditiously as possible and preferably within period of 4 weeks from the date the application is made. Petition disposed off as withdrawn.
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Income Tax
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2019 (10) TMI 30
Disallowance u/s 14A - disallowance calculated exceeded the value of investment itself and is therefore, contrary to the ruling in Cheminvest Ltd. v. Commissioner of Income Tax [ 2015 (9) TMI 238 - DELHI HIGH COURT] - HELD THAT:- SLP dismissed.
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2019 (10) TMI 29
Method of accounting - correctness of the method of accounting of the assessee company for recording the receipt by way of membership fee and the expenses by way of commission and insurance premium - Revision u/s 263 set aside by Tribunal - HELD THAT:- Having considered the rival submissions made by the learned counsel for the parties, in our view, no interference is called for. We, therefore, dismiss the special leave petitions leaving all questions of law open.
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2019 (10) TMI 17
Deduction u/s 80P(2)(a)(vi) - HELD THAT:- Contention of the assessee is that the A.O. ought to have allowed deduction. It is stated that assessee is a co- operative society engaged in the collective disposal of labour and also engaged in providing marketing of agricultural produce grown by its members. It is contended that the authorities below have not considered the submissions in right perspective. Ld. Counsel submitted that if the assessee was not eligible for one clause, it would certainly eligible for another clause of the same section. It is incumbent upon the assessing officer to provide deduction, if it is available. Facts on record suggest that the submissions of the assessee ought to have been considered by the authorities below. We therefore, set aside the impugned order of the Ld. CIT(A) and restore the issue to the file of the A.O. to decide after considering all the submissions of the assessee and verifying its claim. The grounds raised in the appeal are allowed for statistical purposes.
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2019 (10) TMI 16
Penalty levied u/s. 271(1)(c) - assessee filed revised return which was reassessed - Discrepancy between the difference in the income admitted in the original and the revised returns - HELD THAT:- During the penalty proceedings,the assessee has not given any explanation towards the discrepancy between the difference in the income admitted in the original and the revised returns. Therefore, the AO held that the assessee offered this income due to survey action and therefore, it is proved beyond doubt, that the assessee has concealed income / filed inaccurate particulars. CIT(A) found that the assessee has failed to offer any explanation in respect of the difference between the original income and the revised income and sustained the penalty levied by the AO. Before us also, the assessee is not able to offer any explanation in respect of the difference of income admitted between the original and revised returns as required under Explanation 1 of section 271(1)(c) of the Act. Therefore, the differential sum, between the revised return and original return is deemed to represent the income in respect of which particulars have been concealed. Therefore, we sustain the penalty levied U/s.271(1)(c) to that extent. As pointed out by the ld.AR, the levy of penalty could be made only on the tax that is sought to be evaded on the undisclosed income of ₹ 84,88,831/- (₹ 97,80,000 - ₹ 12,91,169) only. Therefore, we direct the AO to recompute the penalty U/s.271(1)(c), accordingly. The assessee s appeal is allowed to this extent.
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2019 (10) TMI 15
Rectification order u/s 154 - rejection of claim u/s 54 - adoption of sale value of consideration of the land arising on account of entering into joint development agreement - Dispute is with regard to the value to be adopted in respect of 2 flats and 2 covered car parking allotted to the assessee in the proposed building. It is the contention of the assessee that the value of 2.67 crore mentioned in the joint development agreement was the expected market value of the flat including the value of proportionate land attached to the flats - HELD THAT:- The assessee has furnished the valuation report obtained from a registered value, while the ld DR submits that the cost of construction incurred by the builder can be adopted for determining the sale consideration of land/building for development. We also find merit in the contentions of the assessee that the cost of construction of two flats along with two covered car parking could not be ₹ 267 crores. In our view, the manner of ascertaining the cost of construction should be left to the wisdom of the assessing officer. Accordingly, we are of the view that this issue needs to be examined at the end of the AO. Accordingly we set aside the order passed by the ld CIT(A) on this issue and restore the same to the AO for determining the value of cost of construction. A.R submitted that the value of two flats and two covered car parking as determined by the AO should be allowed as deduction u/s 54 of the Act, since the same would represent the value of new flats constructed by the assessee for the purposes of sec.54 of the Act. We direct the AO to examine this claim of the assessee also. With regard to the rejection of claim of ₹ 60 lakhs claimed by the assessee, we notice from the return of income filed by the assessee the same has been claimed u/s 54 of the Act only. Accordingly, we restore this issue also the file of AO with the direction to examine this issue afresh by examining the return of income filed by the assessee - Appeal of the assessee is treated as allowed for statistical purposes.
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2019 (10) TMI 13
Limited scrutiny - AO exceeding the jurisdiction- Addition on cash deposited in bank - AO while making the impugned additions has exceeded his jurisdiction - case of the assessee was selected for limited scrutiny issue i.e. regarding security transaction and AO could not find any reason to make any addition in respect of issue for which the limited scrutiny was done - HELD THAT:- DR has been fair enough to admit that the impugned additions have been made by the Assessing Officer on certain other issues, whereas, the case of the assessee was selected for the purpose of limited scrutiny relating to security transactions As find that the additions made by the Assessing Officer, thus, being exceeding his jurisdiction are not sustainable in the eyes of law and the same are accordingly ordered to be deleted. - Decided in favour of assessee
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2019 (10) TMI 12
Sale of agricultural land - business income or capital gains - whether the land purchased by the assessee as agricultural land and also sold as agricultural land, is a capital asset u/s 2(14) ? - HELD THAT:- Admittedly, the assessee is a company which is engaged in the business of real estate and has apparently purchased the property for development of the same into plots as is evident from the Balance sheet of the company. If the assessee had carried on such activity and had derived income therefrom, it would definitely be business income, as held by the AO - assessee has not carried on any agricultural activity nor has it converted the said agricultural land into non-agricultural land and had not shown any intention of developing the same into plots. Undisputedly, the assessee has sold the land as it is i.e. in the same status of agricultural land to the vendee for a sale consideration in acres. We agree with the contention of the assessee that the land did not loose its character of being agricultural land at the time of sale. Since the location of the land is beyond 8kms from the Municipal area, it did not become a capital asset u/s 2(14) of the I.T. Act. Further, the AO himself has held the land to be agricultural land and thus not a capital asset , but since the assessee was engaged in the business of real estate, he held the income from such sale of land to be business income. We find that the CIT (A), has held the land to be a capital asset only because the land was shown as a fixed asset in the balance sheet of the assessee. Since the assessee before us has purchased the agricultural land and had sold it as agricultural land and there is no evidence brought on record that the assessee has carried on any developmental activities on the said land and since the land was described by the Revenue authorities as agricultural land only, we accept the contention of the assessee and hold that the land, in question, is agricultural land and the profit therefrom is not taxable in the hands of the assessee either as business income or as capital gains. Appeal of the assessee is accordingly allowed.
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2019 (10) TMI 11
Characterization of income - Income from giving furniture on hire - 'Income from Other Sources - assessee has claimed income from giving furniture on hire under the head Business Income - HELD THAT:- A perusal of documents on record clearly indicate that furniture has been shown as business asset of the assessee and a separate agreement has been executed for giving furniture on hire. Taking into consideration entirety of facts and principle of consistency, we find merit in the submissions of assessee. CIT (Appeals) have erred in holding income from hiring of furniture as Income from Other Sources . Furniture and fixtures are business assets of the assessee, hence, income generated from giving furniture on hire is business income of the assessee. The ground No. 2 of the appeal is allowed. Disallowance of business expenditure - authorities below have disallowed business expenditure claimed by the assessee on the premise that the assessee is not carrying any business activities hence, there can be no business expenditure - HELD THAT:- While adjudicating ground No. 2 of the appeal here-in-above, we have held that income from hiring of furniture is Business Income of assessee. Thus, the observation of lower authorities that the assessee is not carrying any business activity is contrary to the facts. In principle, we hold that the expenditure claimed by the assessee in running of business is allowable. The Revenue has not raised any doubt over the quantification of expenditure while disallowing the same. We find merits in the contentions of the assessee. Accordingly, ground No. 3 of the appeal is allowed.
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2019 (10) TMI 8
Revision u/s 263 - payments made to the licensor for obtaining TV signals for cable TV Network was liable for TDS u/s 194C - whether payments covered u/s 40A(3) had been made on account of account payee cheques - HELD THAT:- As relying on M/S KURUKSHETRA DARPANS PVT. LTD. VERSUS THE COMMISSIONER OF INCOME TAX [ 2008 (3) TMI 48 - HIGH COURT PUNJAB AND HARYANA] there was a wrong assumption of facts and law in this case by the Assessing Officer because of which he did not make the disallowance u/s 40A(ia) of the Act. It is also apparent that the Assessing Officer has also ignored the observations made by the Auditor in his report that the assessee had not given any certificate to the effect that all the payments covered u/s 40A(3) have been made by account payee cheques. In view of this, we do not find any infirmity in the order of the Ld. PCIT in holding that the order of the Assessing Officer was erroneous and prejudicial to the interest of Revenue. We, therefore, do not find any merit in this appeal of the assessee and the same is accordingly dismissed.
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2019 (10) TMI 2
Transfer pricing adjustment made with respect to exports to associated enterprises - MAM selection - TPO separated few transactions out of total turnover and applied CUP method as most appropriate method - HELD THAT:- As decided in M/S. AMPHENOL INTERCONNECT INDIA P. LTD. [ 2018 (3) TMI 536 - BOMBAY HIGH COURT] after analyzing the issues at length has held that CUP method would not be the most appropriate method in view of various adjustments, which would have to be made due to differences in FAR, in order to arrive at the arm's length price of finished goods. The Hon ble High Court notes that the Tribunal had taken into account the fact that for overwhelming majority of exports to associated enterprises, the TPO has accepted the TNMM method for arriving at the arm's length price and hence, there was no reason why for balance of export of finished goods, TNMM method should not be applied. Similar direction was also given in respect of imports of finished goods, which were sold to third parties and the associated enterprises and by applying FAR analysis, it was held that where the finished goods were customized goods and the geographical differences, volume differences, timing differences, risk differences and functional differences were there, then CUP method would not be the most appropriate method to determine arm's length price. The TNMM method was held to be most appropriate method. In the totality of the above said facts and circumstances, where the issue stands covered by the order of jurisdictional High Court in the case of assessee itself, there is no merit in the orders of authorities below in making aforesaid transfer pricing adjustment in the hands of assessee both with respect to exports to associated enterprises and with respect to imports from associated enterprises. Majority of transactions have been accepted to be at arm's length price by the TPO by applying TNMM method, only in respect of few transactions, the TPO had applied CUP method. There is no merit in the order of TPO in this regard and reversing the final order passed by Assessing Officer, we allow the claim of assessee and direct the Assessing Officer to delete the transfer pricing adjustment made in the hands of assessee. The grounds of appeal No.2 and 3 are thus, allowed. Non allowance of additional depreciation on tools purchased by the assessee - HELD THAT:- CIT(A) has considered the scheme of the Act and has pointed out that as far as Finance Act, 2002 was concerned, then the scope of additional depreciation was where capacity of the unit has been increased by minimum 25% and if the assessee fulfills such requirement, then additional depreciation was to be allowed. However, the said conditions have been withdrawn by the Finance Act, 2005 and the relevant Explanatory Note has been referred by the CIT(A) while deciding the appeal in assessment year 2011-12. The aim under the Finance Act, 2005 while allowing the additional depreciation under section 32(1)(iia) of the Act was extended to new industrial undertaking on additional investments. Once the earlier basis of allowing additional depreciation for the units where the capacity had to be increased for about 25% is no more and now additional depreciation is to be allowed on additional investments and where the plant includes tools, the assessee is entitled to the claim of additional depreciation under section 32(1)(iia) of the Act on the aforesaid tools purchased by assessee. Consequently, we direct the Assessing Officer to allow the claim of assessee of additional depreciation under section 32(1)(iia) - Decided in favour of assessee
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2019 (9) TMI 1284
Reopening of assessment - ultra vires to Section 11 of Expenditure Tax Act, 1987 - non disposal of the objections to the reasons in the assessment order - whether it was necessary for the Assessing Officer to have first disposed of the Appellant s objections by passing a speaking order and only upon communication of the same to the Appellants, proceeded to reopen the assessment ? - HELD THAT:- Since, in the present case, the Assessing Officer has purported to assume the jurisdiction for reopening of the assessment, without having first disposed of the Assessee s objections to the reasons by passing a speaking order, following the law laid down in GKN Driveshafts (India) Ltd [ 2002 (11) TMI 7 - SUPREME COURT] , Bayer Material Science (P) Ltd. [ 2016 (3) TMI 179 - BOMBAY HIGH COURT] and KSS Petron Private Ltd. [ 2016 (10) TMI 1112 - BOMBAY HIGH COURT] we are constrained to hold that such assumption of jurisdiction by the Assessing Officer was ultra vires Section 11 of the said Act. The first substantial question of law will, accordingly, have to be answered in favour of the Appellant and against the Respondent-Revenue.
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Customs
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2019 (10) TMI 28
Maintainability of petition before HC - appealable order - ADD - Sunset review - invocation of provisions of section 9A of Custom Tariff Act and Rules - HC allowed the petition in favour of the petitioners - HELD THAT:- It was ill-advised for the High Court to entertain the writ petition in such a matter when the order is appealable under Section 9C of the Customs Tariff Act, 1975. The judgment and order has been passed in a mechanical manner - It is open to the respondents to avail remedy of the appeal, if they are so advised - appeal disposed off.
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2019 (10) TMI 26
Arrest of person after cancellation of Application for anticipatory bail by the sessions court - Compoundable Offences - section 137(3) of the Customs Act, 1962 - prohibited goods - smuggling of exotic animals - HELD THAT:- Admittedly clauses (a), (c) and (d) of section 104(6) of the Customs Act, 1962 are not applicable. We are unable to accept the contention of learned counsel for the Respondent-DRI that even if prohibited goods are not those which are notified under sub-clause (c) of clause (i) of section 135(1) and are only notified under section 11, that would be sufficient to invoke sub-section (6) of Section 104. Such an interpretation would render the words which are also notified under sub-clause (C) of clause (i) of section 135(1) , in sub-section (6) as redundant and nugatory. Such an interpretation is contrary to all cannons of law. The provisions which relate to personal and liberty and fundamental rights guaranteed under Article 21 of the Constitution of India cannot be interpreted in such a manner as is being suggested by the Respondents. We are, therefore, clear that section 104(6)(b) is not attracted in the case of exotic animals - the offence alleged against the Petitioner would fall under section 104(7) of the Customs Act and thus shall be bailable. It is trite that in a bailable offence, the arresting officer is obliged to inform the arrestee that the offence is bailable and would be further obliged to release the arrestee on bail by virtue of provisions of section 104(3) of the Customs Act, 1962 - there is no hesitation in holding that not only the petition is maintainable but also the Petitioner is entitled to be released on bail. In the light of the express statutory provision permitting the compounding of offence and rule which prescribe the procedure for dealing with the application for compounding, the authorities cannot show disinclination to entertain and determine the application for compounding the offence alleged. It is directed that the Petitioner to attend the DRI office, Mumbai Zonal Unit on every Monday between 11.00 a.m. to 2.00 p.m. till issuance of the SCN - we are not inclined to grant the same since the Petitioner was arrested in a bailable offence in violation of the fundamental rights under Article 21 of the Constitution of India.
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2019 (10) TMI 20
Smuggling - Release of seized goods - Betel nuts - perishable goods - third country/foreign origin goods - N/N. 09 /1996-Cus (NT) dated 22.01.1996 issued under Section 11 of the Customs Act read with Section 3(2) of the Foreign Trade (Development and Regulation) Act, 1992. HELD THAT:- This Court has taken note of the two reports as stated in paragraph 8 and 9 of the counter affidavit of the respondents. The samples of Arecanuts are of very bad qualities and more than 50% of the nuts are infected with moulds inside. The petitioner no. 1 is, therefore, unable to make out a case for a direction to release the betel-nuts. The prayer as regards release is, thus, refused. Release of vehicle - HELD THAT:- It will be open for petitioner no. 2 to make an appropriate application before the competent authority who will consider the same and pass an appropriate order thereon within a period of 30 days from the date of filing of the application.
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2019 (10) TMI 18
Illegal import - the ship carried on board propane gas was not declared - the supporting documents in respect of the undeclared cargo not produced - contravention to Section 30 of the Customs Act, 1962 read with regulation 5 of the Import Manifest (Vessel) Regulation, 1971 - appellant submitted that said propane gas carried on in the vessel was not cargo and hence was not required to be declared in cargo declaration. HELD THAT:- The propane was not declared at all in the original declaration. The presence of propane gas was noticed on the vessel first declared as Cargo however, Atlantic later on declared that it was not cargo but ship store. In this context, it is observed that the propane gas was ship store - It is apparent that the quantity of coolant required for the purpose is 41.4MT to make the vessel ready for loading. In the aforesaid set of facts it cannot be denied that propane gas is for use as ship store and for the purpose of making the ship fit for carrying the said cargo of Butane. The propane gas is necessary for cooling the tanks in which the cargo is loaded. The Regulation 3 of the Import Manifest (Vessel) Regulation, 1971 requires declaration of cargo in Form-III and vessel stores listed in Form-IV - In the instant case, the allegation is that the propane gas was not declared in the cargo declaration in the Form-III - it is apparent that propane carried on was not cargo but ship store. In these circumstances, there was no requirement to include the propane gas in the cargo declaration in Form-III. Confiscation set aside - penalty set aside - appeal allowed - decided in favor of appellant.
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2019 (10) TMI 3
Valuation of imported goods - copper scrap heavy melting scrap - rejection of assessable value - HELD THAT:- The goods were purchased by the appellant on high sea sale basis. Even as per the report of Charter Accountant, the goods were nothing but metal scrap with some of the scrap item of the aluminium. The lower authority has enhanced the value based upon the value of metal as reflected in LME prices, without rejecting the transaction value. There is no evidence on record that the transaction value paid by the appellant to the foreign exporter is incorrect and some more consideration stands paid to them. An identical issue was considered by the Tribunal in the case of M/S R.K.G. INTERNATIONAL PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS CENTRAL EXCISE [M/S R.K.G. INTERNATIONAL PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS CENTRAL EXCISE [ 2019 (4) TMI 1759 - CESTAT ALLAHABAD] ] and by taking note of Hon ble Supreme Court s decision in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, NOIDA VERSUS M/S. SANJIVANI NON-FERROUS TRADING PVT. LTD. [ 2018 (12) TMI 738 - SUPREME COURT] , enhancement of value was set aside. There are no reasons to uphold the enhancement - the demand of duty as also confiscation of goods and imposition of penalty is set aside - appeal allowed - decided in favor of appellant.
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2019 (10) TMI 1
Duty Drawback - Section 74 of the Customs Act, 1962 - re-export of imported Oil Well Equipment after completion of the project in India - pilferage - rejection of duty drawback - imposition of penalty - time limitation - HELD THAT:- The Appellants claimed that some goods have been pilfered and they have lodged a police complaint. Therefore, it is evident from the records of the case that identity of at least part of the goods has been established by the report of the experts i.e. Intertek. To this extent one should not have any doubt regarding the admissibility of re-export of the imported goods - it is not the case of the department that the imported goods have been sold or diverted and some other goods were presented for export. No evidence to that extent has been adduced by Revenue. The only question that was raised was with reference to the establishment of identity and the same is answered by the report of Intertek in respect of the goods mentioned in their report. Therefore, the issue of admissibility of drawback on the goods re-exported is settled in the appellants favour. Time Limitation - HELD THAT:- In the instant case, the imports have occurred during July to September 2010; initially the goods were put for export by filing shipping bills on 01.12.2010. The goods could not be exported due to the objections raised by the department and the Show Cause Notice issued and the subsequent proceedings in the Tribunal. After fulfilling the conditions laid down by the Tribunal customs have allowed the goods to be re-exported on 08.02.2013; LEO was issued on 29.03.2013 and goods were finally exported on 13.04.2013. It is not the case of the department that the goods presented for export on 01.12.2010 and goods which were exported finally on 13.04.2013 are not different. Therefore, the time period of two years requires to be reckoned up to the initial filing of the shipping bills i.e. 01.12.2010 and not the date on which LEO was given after prolonged litigation. It is a settled principle of law that while computing the limitation time taken for litigation should be excluded. In view of the same, we find that he Appellants cannot be put to jeopardy due to the objections raised by the department which to a greater extent got nullified by the report of Intertek, the exports appointed for this purpose. Therefore, we are inclined to consider the submissions of the Appellants that the reexport should be treated as made in time and drawback should be allowed to the extent of the part of the goods that were actually reexported. The goods shall be treated as re-exported within time. Lower authorities are directed consider appellants request to grant drawback to the extent of goods actually re-exported - Appeal allowed.
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Insolvency & Bankruptcy
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2019 (10) TMI 6
Permission for withdrawal of application - Liquidation/dissolution of the Corporate Debtor - Section 9 of the I B Code, 2016 - HELD THAT:- There are no physical assets available for sale, this Authority in exercise of the powers conferred under Sub-section (2) of Section 54 of the I B Code, 2016, hereby order the dissolution of the Corporate Debtor, viz., M/s. Sattur Sri Ganga Chit Funds Private Limited from the date of this Order, and the Corporate Debtor stands dissolved. Consequently, the Resolution Professional stands relived. The Resolution Professional and the Registry are directed to send the copy of this order within 7 days from the date of pronouncement to the RoC with which the Corporate Debtor is registered. Application disposed off.
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2019 (10) TMI 4
Maintainability of petition - initiation of CIRP - Corporate Debtor committed default for non-repayment - HELD THAT:- The Tribunal is of the opinion that justice would be met if both the parties are permitted to resolve their issues by the proposed arbitration rather than to keep the matter pending here, since the Share Subscription Agreement in question is admittedly was executed and binding on both the parties, where Arbitration clause is available. The Petition is disposed off.
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Service Tax
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2019 (10) TMI 27
Imposition of tax and penalty - irregular availment of CENVAT Credit - inputs/input services used for provision of output services which are chargeable to duty or tax as well as exempted services - non-maintenance of separate records - Rule 6 of CCR - Maintainability of petition - HELD THAT:- he second respondent has brazenly exercised power under a provision which was not even available to him, as it was an enabling provision put in place for the benefit of the assessee, and arrived at a wholly unreasonable, if not absurd, result. That apart, the second respondent did not even choose to deal with the binding case law cited before him while dealing with the issues arising for consideration. This arrogant and arbitrary approach adopted by the second respondent cannot be countenanced - It would therefore not be necessary for the petitioner to go through the motions of a statutory appeal to challenge the same. CENVAT credit - HELD THAT:- Rule 6(3) of the CENVAT Credit Rules, 2004, merely offers options to an output service provider who does not maintain separate accounts in relation to receipt, consumption and inventory of inputs/input services used for provision of output services which are chargeable to duty/tax as well as exempted services. If such options are not exercised by the service provider, the provision does not contemplate that the Service Tax authorities can choose one of the options on behalf of the service provider - As rightly pointed out by Sri S.Ravi, learned senior counsel, if the petitioner did not abide by the provisions of Rule 6(3) of the CENVAT Credit Rules, 2004, it was open to the authorities to reject its claim as regards the disputed CENVAT Credit of ₹ 17,15,489/-. The statutory scheme did not vest the second respondent with the power of making such a choice on behalf of the petitioner. The Order-in-Original, to the extent that it proceeded on these lines, therefore cannot be countenanced. Issuance of Debit notes - HELD THAT:- The disallowance of CENVAT Credit on the ground that the petitioner had availed the same by producing debit notes instead of invoices cannot be accepted. Petition allowed.
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2019 (10) TMI 25
Rectification order - Recovery proceedings - maintainability of petition - alternative remedy of appeal - HELD THAT:- Without prejudice to the right of the petitioner to move the Appellate authority, or in the alternative, to seek a rectification of Ext.P1 order before the Assessing authority itself, the writ petition, in its challenge against Ext.P1 order, is dismissed. The recovery proceedings for recovery of amounts confirmed against the petitioner by Ext.P1 shall be kept in abeyance for a period of three weeks, so as to enable the petitioner to approach the Assessing authority/Appellate authority, in the meanwhile.
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2019 (10) TMI 10
CENVAT Credit - input services - tour operator service in connection with the conducting of foreign tours to their dealers - period November 2014 to February 2016 - HELD THAT:- As per the facts of the case, the said services were availed as incentive for the dealers who achieved the target sale - on perusal of the facts, it is seen that the Show Cause Notice is issued against the appellant-company who is only an ISD. The decisions relied by the ld. counsel in the case of MAHINDRA MAHINDRA LTD. VERSUS COMM. OF SERVICE TAX, MUMBAI [ 2017 (7) TMI 167 - CESTAT MUMBAI] , KANSAI NEROLAC PAINTS LTD. VERSUS COMMISSIONER OF GST, MUMBAI [ 2018 (5) TMI 673 - CESTAT MUMBAI] and INDIAN OIL CORPORATION LTD. VERSUS COMMISSIONER OF C. EX., DELHI-II [ 2014 (10) TMI 729 - CESTAT NEW DELHI] have discussed the said issue as to whether the demand can be raised against the ISD alleging wrong availment of credit when the credit has been availed by the unit company and the ISD has only distributed the credit - The demand raised against the appellant-company who is an ISD cannot sustain. Appeal allowed - decided in favor of appellant.
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2019 (10) TMI 7
CENVAT Credit - input services - services of goods transport agency utilized - HELD THAT:- The flexibility afforded by the clarification in circular dated 21st August 2008 has been upheld by the decision of the Tribunal in COMMISSIONER OF SERVICE TAX, AHMEDABAD VERSUS SIRHIND STEEL LTD. [ 2009 (8) TMI 407 - CESTAT, AHMEDABAD] and we are also informed that, since the filing of this appeal, the Hon ble High Court of Gujarat has dismissed the plaint of Revenue against the decision in re Sri Hind Steel Ltd. - the dispute is now non-existent. The appeal of Revenue is limited to the acceptance by the first appellate authority of the submissions made in the appeal before him. The analysis of the submission in the grounds of appeal of Revenue appears to be flawed. Appeal dismissed - decided against Revenue.
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Central Excise
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2019 (10) TMI 19
Process amounting to manufacture - fabrication of aluminium composite panels (ACP) falling under subheading 7610.90 of CETA, 1985 - SSI Exemption - time limitation - HELD THAT:- Despite the various submissions given by the appellant, the issue stands decided by the jurisdictional High Court in CCE., MANGALORE VERSUS MANGALORE REFINERIES PETROCHEMICALS LTD. [ 2010 (9) TMI 756 - KARNATAKA HIGH COURT ]. As such, judicial discipline requires that this Bench follow the Hon ble High Court s order, as the same has not been stayed or set aside by a higher Court - Therefore, we are not in a position to appreciate the submissions of the appellants as far as the merits of the case are concerned - the activity of the appellant in cutting, etc., of aluminium composite panels for the purpose of cladding amounts to manufacture. Time Limitation - HELD THAT:- The appellants have a fair case in terms of limitation. As submitted by the appellants, the appellants have given a letter to the department as back as 1.4.2003/04 informing the department about their activity undertaken in respect of ACPs; they have been regularly filing ER-3 returns and they have furnished the figures relating to the value of clearances of ACPS vide letters dated 6.1.2005 and 11.4.2005. We find reasons to believe that it is because of a bona fide belief the appellants held, they did not submit the figures relating to the clearances of ACP in their ER-3 returns. For this reason, alone, suppression, etc., with an intent to evade payment of duty cannot be invoked - the demand is hit by limitation. The appeal is partly allowed by way of remand for the purpose of computation of duty for the normal period.
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2019 (10) TMI 14
Imposition of penalty - CENVAT Credit - input services - appellant has availed irregular CENVAT credit on certain input service bills - period April 2013 to July 2013 and in September 2013 - denial on account of nexus - HELD THAT:- In the case of COMMR. OF C. EX., BANGALORE-I VERSUS GENEVA FINE PUNCH ENCLOSURES LTD. [ 2011 (1) TMI 746 - KARNATAKA HIGH COURT] , the Hon ble High Court of Karnataka has held that Tribunal in the instant case on a careful consideration of the material on record has held firstly that there is no determination of duty. Secondly, the aforesaid requirement i.e., the cause of evasion of duty is not mentioned in the show cause notice. Further that the entire duty and interest was paid voluntarily on being pointed out. It held that no case for imposing the penalty is made out. The impugned order imposing the penalty is not sustainable in law - penalty set aside - appeal allowed - decided in favor of appellant.
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2019 (10) TMI 5
Valuation - freight/transportation charges - relevant Place of Removal - in cases where the goods are sold on FOR basis whether the place of removal shifts to the buyer s premises or it will continue to be at the seller s premises? HELD THAT:- The assessable value of goods under section 4 must include the costs of transportation and transit insurance if the place of removal shifts to the buyer s premises. Also, the assessee will be eligible for Cenvat credit of the costs of the transport incurred in transporting the goods from their premises to the buyer s premises - On the other hand, if the place of removal continues to be the seller s premises then the value cannot include the cost of transportation and transit insurance incurred for transporting the goods from the seller s premises (factory, depot, place of consignment, etc.) to the buyer s premises. Conversely, the assessee will also not be entitled to Cenvat credit of the transport of goods from their factory to the buyer s premises. Both valuation under Section 4 and eligibility of Cenvat credit under CCR, 2004 depend on this key question. In the case of COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. [ 2015 (4) TMI 857 - SUPREME COURT] the Hon ble Apex Court had held that since the sale takes place when the ownership shifts to the buyer, where the sale is on FOR basis, the place of removal shifts to the buyer s premises - In the subsequent judgment of the Hon ble Apex Court in the case of COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR VERSUS M/S ISPAT INDUSTRIES LTD. [ 2015 (10) TMI 613 - SUPREME COURT] categorically held that the buyer s premises can never be the place of removal because the expression is the place from where the goods have to be sold and not from where the goods have been sold. Secondly, it has been held that once the goods reach the buyer s premises, there is no question of removal thereafter as they have already reached the destination. Thirdly, it was being held that the places indicated in the clause such as depot, consignment agent etc., are all places which belong to the seller and not to the buyer. Therefore, the place of removal has to be seller s premises and cannot be buyer s premises. This definition of place of removal in both Section 4 and Cenvat Credit Rules does not change depending upon any facts or circumstances of the case. Whether the sale is on FOR buyer s premises basis or otherwise, the judgment of the Hon ble Apex Court in the case of Ispat Industries Ltd (supra) applies. The demand of differential duty in this case which is based on premise that the place of removal shifts to the buyer s premises in case of FOR basis does not sustain - appeal dismissed - decided against Revenue.
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CST, VAT & Sales Tax
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2019 (10) TMI 24
Validity of assessment order - ex-parte order - principles of natural justice - HELD THAT:- It is not in dispute that Ext.P3 assessment order was one that was passed exparte. It is also not in dispute that the reply that was preferred by the petitioner to the assessment proposals were received by the 1st respondent on 10.12.2018. Inasmuch as the fact of receipt of the reply to the pre-assessment notice on 10.12.2018 would clearly indicate that there was no attempt by the petitioner to protract proceedings, the 1st respondent ought not to have acted in such haste in a matter pertaining to an assessment of the petitioner under the KVAT Act - Ext.P3 assessment order is one that was vitiated by a non-compliance with the rules of natural justice. The 1st respondent is directed to complete the assessment proceedings afresh, after hearing the petitioner - petition allowed.
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2019 (10) TMI 23
Recovery of Sales Tax Dues - restraint on prohibitory order - Amnesty Scheme - HELD THAT:- It is deemed appropriate to now relegate the petitioner to the alternative remedy of pursuing the appeal before the 2nd respondent-appellate authority. Taking note of the recovery already effected by the respondents, it is deemed appropriate to condone the delay of 98 days occurred in filing the Ext. P3 series of appeal before the 2nd respondent and direct the 2nd respondent to consider and pass orders on Ext. P3 series of appeals within three weeks from the date of receipt of a copy of this judgment, after hearing the petitioner. Petition disposed off.
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2019 (10) TMI 22
Stay against realization of the disputed tax - compounding fee - grant of conditional stay - Extension of time limit for compliance of condition of stay - HELD THAT:- The scope of interference with an interim order passed by the Tribunal is limited only on the aspects as to whether the Tribunal had failed to apply its mind in appreciating the prima facie merits in the appeal, and as to whether the Tribunal had failed in affording opportunity of hearing before passing the interim order. The impugned order in this case reflects proper consideration of the prima facie merit and the same was passed after hearing the appellant. Further, the condition insisted is only for payment of 20% of the disputed tax. Hence, we are not inclined to interfere with. The learned counsel for the petitioner sought indulgence for extending the time stipulated for complying with the condition and also for allowing installment facility for payment of the 20% amount, by pleading the financial stringency experienced. Petition disposed off.
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2019 (10) TMI 21
Validity of assessment order - demand of tax on sales - exempted sales of goods purchased from outside the State - Telangana Value Added Tax Act, 2005 - HELD THAT:- There are merit in the submission made by the learned counsel as it was for the Assistant Commissioner to specifically call upon the petitioner in the event any further information, in particular, was sought. Merely issuing a show cause notice calling for objections would not suffice in this regard. The impugned assessment order is accordingly set aside - the matter is remitted to the file of the Assistant Commissioner (State Tax), Rajendranagar Circle, Hyderabad, for consideration afresh - petition allowed by way of remand.
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Indian Laws
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2019 (10) TMI 9
Smuggling - Charas - offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Disbelieving the testimony of the witness - the register of the Hotel where the witness stayed had not been produced - presumption under section 35 and 54 of NDPS Act - HELD THAT:- After careful appreciation of the entire evidence, application of law and judicial precedents, the findings returned by the trial Court, convicting the accused, are not based on the correct and complete appreciation of testimonies of prosecution witnesses. It does not lead to an irresistible conclusion of the guilt of the accused, beyond reasonable doubts. The appreciation of the evidence and application of law cited, take this Court to only one conclusion that the possibility of the investigating team not revealing the true and correct facts cannot be ruled out. After careful scrutiny, the evidence of the police officials, does not inspires confidence, being neither trustworthy nor reliable, and it cannot from basis of conviction. The prosecution has miserably failed to prove its case beyond reasonable doubts. Appeal allowed.
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