TMI Tax Updates - e-Newsletter
October 5, 2017
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Insolvency & Bankruptcy
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
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GST:
Facility of LUT extended to all exporters / registered persons subject to conditions
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Income Tax:
Conduct of Assessment Proceedings electronically in time-barring scrutiny cases - Order u/s 119
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Income Tax:
The partial disallowance of depreciation in the year under consideration in any case would not result into any evasion of tax. In short, the assessee would earn no benefit out of the reduced depreciation which can always be claimed in later years. - HC
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Income Tax:
TDS - payments of demat charges and other charges levied by NSDL and CDSL - such charges were in the nature of recovery of cost or expenses at large and not for providing any professional or technical service - No TDS liability - HC
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Income Tax:
Release the refund - AO withhold the refund arising out of return filed by an assessee til the completion of assessment - AO directed to complete the assessment latest by 31.10.2017. - HC
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Income Tax:
TDS u/s 194J - stop gap arrangements between assessee and HRTC - no service, which can be termed to be technical service, was provided by HRTC to the development authority, so also no managerial, technical or consultancy services were provided - No TDS liability - HC
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Income Tax:
Natural Justice - the successor officer cannot state that there is no necessity to afford an opportunity of personal hearing, when his predecessor had thought it fit to do so. - HC
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Customs:
Sub: Customs and Central Excise Duties Drawback Rules, 2017 and All Industry Rates (AIRs) of Drawback related changes - reg.
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Customs:
Validity of SCN - Ultimately, it is the quest of truth and truth alone being the guiding star in the process of the judicial dispensation and that should be the touch stone for testing such challenges at the preliminary stages of the proceedings. - HC
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DGFT:
Procedure for export of spices to the European Union countries
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Indian Laws:
Levy of Local Body Tax (LBT) - Even though SIM cards, recharge coupons are not liable to sales tax / VAT, these are liable to LBT on its entry into municipal limits - e-recharge not liable to LBT - HC
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Service Tax:
The SCN is vague and incomprehensible, leaving the appellant-assessee wondering as to what is the exact nature of allegations they are required to meet - demand of service tax set aside.
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Central Excise:
Writing off of arrears of Central Excise, Service Tax and Customs duty - Constitution of Committees to advise the authority for writing off of arrears-reg - Circular
TMI Short Notes
Articles
Notifications
Central Excise-
22/2017 - dated
3-10-2017
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CE
Seeks to amend notification No. 11/2017-Central Excise so as to reduce the excise duty rates on Petrol and Diesel ( both unbranded and branded )
DGFT-
32/2015-20 - dated
4-10-2017
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FTP
Procedure for export of spices to the European Union countries
GST-
37/2017 - dated
4-10-2017
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CGST
Facility of LUT extended to all exporters / registered persons subject to conditions
GST - States-
36/2017-State Tax - dated
29-9-2017
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Gujarat SGST
The Gujarat Goods and Services Tax (Eighth Amendment) Rules, 2017.
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30/2017-State Tax (Rate) - dated
28-9-2017
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Gujarat SGST
Amendments in the Notification No. 12/2017-State Tax (Rate), dated the 30th June, 2017 - Supply of Transit cargo services to Nepal and Bhutan
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(GHN-90)/GST-2017-S.9(3)(4)-TH - dated
25-9-2017
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Gujarat SGST
Corrigendum - (GHN-34)GST-2017/S.9(3)(2)-TH, dated the 30th June, 2017 Notification No.13/2017-State Tax (Rate)
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J.21011/1/2017-TAX/Vol-II(i) - dated
19-7-2017
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Mizoram SGST
Harmonised System of Nomenclature (HSN) Codes - Annual Turnover in the preceding Financial Year.
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J.21011/1/2017-TAX/Vol-II(i) - dated
17-7-2017
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Mizoram SGST
CORRIGENDUM - Notification No. 2/2017 State Tax (Rate) issued vide No. J. 21011/1/2017-TAX(i) Dated 7.7.2017
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J.21011/1/2017-TAX/Part-III - dated
10-7-2017
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Mizoram SGST
Prescribes the eligible registered person, whose aggregate turnover in the preceding financial year did not exceed seventy five lakh rupees.
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Corrigendum-01/2017 - dated
15-9-2017
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Nagaland SGST
Corrigendum - In the Notification No. 06/2017 dated 24th August, 2017
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14/2017 - dated
15-9-2017
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Nagaland SGST
Last Date for filing of return in FORM GSTR-3B
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F.NO.FlN/REV-3/GST/1/08 (Pt-1)/457 - dated
14-9-2017
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Nagaland SGST
CORRIGENDUM - Notification No. F.No.FIN/REV-3/GST/1/08 (Pt-l) “D” dated 30th June, 2017
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F.NO.FIN/REV-3/GST/1/08 (Pt-1)/466 - dated
14-9-2017
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Nagaland SGST
The Nagaland Goods and Service Tax (Sixth Amendment) Rules, 2017
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F.NO.FIN/REV-3/GST/1/08 (Pt-1)/461 - dated
14-9-2017
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Nagaland SGST
Waiver the late fee who failed to furnish the return in FORM GSTR-3B for the month of July, 2017
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F.NO.FIN/REV-3/GST/1/08 (Pt-1)/460 - dated
14-9-2017
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Nagaland SGST
CORRIGENDUM - Notification F.No. FIN/REV-3/GST/1/08-"E"dated the 30th June, 2017
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F.NO.FIN/REV-3/GST/1/08 (Pt-1)/459 - dated
14-9-2017
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Nagaland SGST
CORRIGENDUM - Notification No. F.No. FIN/REV-3/GST/1/08 (Pt-1)/453 dated 13th September, 2017
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F.NO.FIN/REV-3/GST/1/08 (Pt-1)/453 - dated
13-9-2017
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Nagaland SGST
Letter of Undertaking in place of a bond.
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F.NO.FIN/REV-3/GST/1/08 (Pt-1)/452 - dated
13-9-2017
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Nagaland SGST
Harmonised System of Nomenclature (HSN) Codes
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13/2017 - dated
11-9-2017
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Nagaland SGST
Supersession of notification No. 10/2017, dated the 28th August, 2017 - Extends the time limit for furnishing the return by an Input Service Distributor.
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12/2017 - dated
11-9-2017
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Nagaland SGST
Supersession of notification No. 11/2017, dated the 5th September, 2017 - Extends the time limit for furnishing the details or return.
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11/2017 - dated
5-9-2017
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Nagaland SGST
Supersession of notifications No. 01/2017, dated the 8th August, 2017; No. 02/2017, dated the 8th August, 2017; and No. 03/2017, dated the 8th August, 2017
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10/2017 - dated
28-8-2017
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Nagaland SGST
Extends the time limit for furnishing the return by an Input Service Distributor.
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09/2017 - dated
28-8-2017
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Nagaland SGST
GST Council extends the time limit for furnishing the return for the month of July, 2017.
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08/2017 - dated
25-8-2017
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Nagaland SGST
Amendment in the Notification-07/2017 NO.CT/LEG/GST-NT/12/17 dated 24th August, 2017.
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07/2017 - dated
24-8-2017
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Nagaland SGST
Notifies the following modes of verification
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F.No.12(46)FD/Tax/2017-Pt-II-105 - dated
29-9-2017
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Rajasthan SGST
The Rajasthan Goods and Services Tax (Eighth Amendment) Rules, 2017.
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F.No.12(56)FD/Tax/2017-101 - dated
28-9-2017
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Rajasthan SGST
Amendment in the Notification number F.12(56)FD/Tax/2017-Pt.-I-50 dated 29th June, 2017.
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F.No.12(56)FD/Tax/2017-Pt-II-96 - dated
25-9-2017
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Rajasthan SGST
CORRIGENDUM - Notification Number F.12(56)FD/Tax/2017-Pt.-I-51 dated June 29, 2017
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2017 (10) TMI 106
Reopening of the assessment u/s 143(3) r.w.s.147 - period of limitation - Held that:- The notice u/s 148 was issued on 14.3.2013 and the order which was the subject-matter of appeal before the Tribunal was dated 30.06.2011. The A.Y before us is 2005-06 and as per section 149(1)(b) of the Act, six years from the end of the relevant A.Y is 31.03.2012 beyond which period a notice u/s 148 cannot be issued for the A.Y 2005-06. Since as per section 2 of section 150, the notice u/s 148 cannot be issued if the order under appeal before the Tribunal, was beyond the limitation period prescribed u/s 149(1)(b) of the Act. However, we find that the order of the CIT (A) which is subject matter of appeal before the Tribunal is dated 30.06.2011 is well within the period of six years from the end of the relevant financial year and therefore, the proceedings initiated by the AO by issuance of notice u/s 148 for the A.Y 2005-06 in the case of the assessee is sustainable. Therefore, we see no reason to interfere with the order of the CIT (A) on this issue.
Entitlement to deduction u/s 54F in respect of more than one residential flats received by virtue of a development agreement - Held that:- As by virtue of various decisions of the Tribunal and also the jurisdictional High Court in the case of Shri Syed Ali Adil (2013 (6) TMI 278 - ANDHRA PRADESH HIGH COURT) and also CIT vs.V.R. Karpagam (2014 (8) TMI 899 - MADRAS HIGH COURT) and CIT vs.Smt. K.G. Rukminiamma (2010 (8) TMI 482 - Karnataka High Court ), the assessee was entitled to deduction u/s 54F of the Act in respect of more than one residential flats received by virtue of a development agreement.
Capital gain computation - applicability of the provisions of section 50C - Held that:- We find that the AO has adopted the SRO value of flats received by the assessee as consideration for the transfer of the land under the development agreement u/s 50C of the Act. In our opinion, this is not correct. The cost of the constructed area received by the assessee should be taken as the consideration received by the assessee in lieu of the development agreement and not the SRO value. The SRO value u/s 50C of the Act would come into play when the assessees sell their share of the flats and if the sale consideration received by them is less than the SRO value. Therefore, the AO is directed to take the cost of construction of the flats by the builder as the sale consideration received by the assessee for transfer of land to the development for computing the long term capital gain
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2017 (10) TMI 105
Income accrued in India - income assessable to tax at Singapore on the basis of accrual or remittance - AO brought to tax part of the receipt on the ground that the assessee has not furnished the proof of its remittance to the assessee in Singapore - India-Singapore DTAA - Held that:- It has never been the case of the AO or the CIT (A) that the assessee has not filed the evidence of offering the income to tax in Singapore. In fact, the AO has considered the fact that the offshore income of a Singapore entity is not taxable in Singapore unless and until it is remitted or received in Singapore by virtue of Article 24(1) of India-Singapore DTAA.
Thus, the consequence of receipt in Singapore is that it is taxable in Singapore and that is the reason why the AO has accepted part of the remittance in respect of which the proof has been furnished during the assessment proceedings as exempt from tax in India. Since the assessee has filed proof of remittance of a part of balance of the freight charges, we are of the opinion that the assessee is entitled to exemption in respect of only the freight charges remitted to Singapore. In respect of USD in respect of which, there is no proof of remittance, it has to be brought to tax in India. We find that similar issue had arisen before the Hon'ble Gujarat High Court in the case of M.T. Maersk Mikage & 4 Petitioners vs. DIT (International Taxation) (2016 (9) TMI 19 - GUJARAT HIGH COURT).
The AO is therefore, directed to tax only such part of the freight charges which have not been remitted to the assessee in Singapore. Assessee’s appeal is partly allowed.
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2017 (10) TMI 110
Addition u/s 68 - booking advances received from the prospective customers - tribunal confirmed part addition - Held that:- Tribunal allowed the assessee to produce further evidence at second appellate stage. To the extent, the additions were explained through such further evidence, the Tribunal remanded the issue before the Assessing Officer for verification. Only to the extent where there was no further material, the Tribunal confirmed the disallowance of ₹ 96.60 lakhs.
It can thus be seen that the entire issue is based on appreciation of evidence and essentially a factual one. No question of law arises.
We did not discern any ratio that section 68 of the Act cannot be applied in case of advances received for plot bookings. If all the ingredients of section 68 exist, nothing would prevent the Revenue from invoking the said provision. With respect to the addition of ₹ 26.32 lakhs confirmed by Commissioner of Income Tax (Appeals), we primafacie find that the counsel for the appellant is correct in pointing out that the Tribunal failed to give any finding on this issue. The Tribunal has neither confirmed nor deleted the addition. Let there be NOTICE for final disposal, returnable on 04.10.2017.
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2017 (10) TMI 103
Reopening of assessment - reasons to believe - depreciation under section 32(iia) - written off inventory treating them as non moving and absolute in nature - Held that:- The Revenue's contention that the Assessing Officer had not made specific mention of these issues in the assessment order also did not find favour of the Tribunal observing that the assessee would have no control over the manner in which the Assessing Officer would treat such issues in the order of assessment after full scrutiny.
With respect to written off inventory there was no dispute that such issue did not come up for consideration before the AO in the original assessment. However, on this ground the Tribunal entered into the merits and held that the same could not have formed the basis for making any additions. Without so elaborating, the Tribunal examined the question whether on the third ground, the Assessing Officer could have formed a belief that income chargeable to tax had escaped the assessment. The Tribunal ultimately held it against the Revenue.
If we peruse the order in this respect more minutely, the issue pertains to offering certain interest income to tax. The assessee had given a loan to one GSIL but had not received interest on such loan for a long time, perhaps on the ground that there was no interest stipulation in the loan document. In the past, the assessee would offer notional interest on accrual basis. However during the period relevant to the assessment year in question, the issue came to be referred for arbitration. The Board of Directors of the assessee company therefore, passed a resolution not to offer the interest income to tax in view of such uncertainty in its receipt itself. The Tribunal noted that much later the arbitral award was available holding the assessee entitled to interest at the rate of 11.5%. The Tribunal therefore, found that the assessee was justified in not accounting for such interest in the return when there was no stipulation for interest in the agreement between the parties. - Decided in favour of assessee.
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2017 (10) TMI 102
Additional tax to be charged under section 143(1A) - effect of reducing the loss declared by the assessee in the return of income - Held that:- Supreme Court in case of Commissioner of income Tax and others v. Sati Oil Udyog Ltd. and another [2015 (3) TMI 854 - SUPREME COURT] in which it was held and observed that section 143(1A) can be invoked where it is found on facts that the lesser amount stated in the return filed by the assessee was a result of an attempt to evade tax lawfully payable by the assessee and the burden of proving such fact is on the Revenue. The Tribunal observed that the assessee was a government undertaking and was since long running into huge losses year after year. The partial disallowance of depreciation in the year under consideration in any case would not result into any evasion of tax. In short, the assessee would earn no benefit out of the reduced depreciation which can always be claimed in later years.
The assessee was a government company and was running into huge losses year after year consistently. The reduction of loss was only on account of disallowance of depreciation claimed by the assessee. The Tribunal also noted that if the disallowance was on the dispute of the machinery not having been installed during the year under consideration, such depreciation would always be available to the assessee in the later years. Since there was consistent loss offered by the assessee, this shifting of the depreciation to a later year would have no impact on its tax. - Decided in favour of assessee.
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2017 (10) TMI 101
TDS u/s 194C or 194J - payment to National Stock Exchange in the nature of transfer charges - payments of demat charges and other charges levied by NSDL and CDSL - Held that:- The Tribunal while reversing the view of the Commissioner of Income Tax (Appeals) observed that there were no elaborate reasons recorded to hold that the TDS was required to be deducted under section 194J and not under section 194C of the Act. The Tribunal noted that the stock exchange provides services to the assessee company for purchase and sale of shares of their clients. Such charges are merely in the nature of recovery of expenses of the exchange and cannot be termed as charges for providing any professional or technical service. We are broadly in agreement with the view of the Tribunal. The Stock Exchange cannot be termed as providing professional or technical services. This question is therefore not required to be considered.
Disallowance of lease line charge paid u/s.40(a)(ia) - Held that:- This issue has been decided by the Supreme Court in case of Commissioner of Income Tax vs. Kotak Securities Ltd. reported in [2016 (3) TMI 1026 - SUPREME COURT] in which held that the brokers make payment to the stock exchange for the facilities of faceless screen based transactions made available at the stock exchange which was compulsory for the brokers to use. In the opinion of the Supreme Court, this was not a payment of fee for technical service rendered by the stock exchange inviting deduction at source under section 194J of the Act.
Deduction of tax for payments of demat charges and other charges levied by NSDL and CDSL - Held that:- Tribunal was of the opinion that such charges were in the nature of recovery of cost or expenses at large and not for providing any professional or technical service. To this extent, we are concur with the view of the Tribunal. While rejecting this question, we should not be seen to be confirming the Tribunal's further observation that even if there was a shortfall in tax collection at source, section 40(a)(ia) of the Act for disallowance cannot be invoked. We will examine such an issue in an appropriate case.
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2017 (10) TMI 100
Release the refund - AO withhold the refund arising out of return filed by an assessee til the completion of assessment - whether notice under sub-section (2) of section 143 authorize AO to withhold the refund till the last date for finalizing the assessment? - Held that:- The return was filed on 29.09.2015 for which, the time limit under the normal provision of subsection (1) of section 143 of the Act for processing the return is over long back. Even though as discussed earlier, the Assessing Officer having issued notice under sub-section (2) of section 143 of the Act, he would get an extended time for proceeding under sub-section (1) as highlighted in case of Tata Teleservices Ltd. (2016 (5) TMI 724 - DELHI HIGH COURT) and Group M Media India Pvt. Ltd. Mumbai (2017 (1) TMI 1149 - BOMBAY HIGH COURT ), it would be wholly inequitable for the Assessing Officer to merely sit over the petitioner's request for refund citing the availability of time upto the last date of framing the assessment under sub-section (3) of section 143.
We simply cannot accept the interpretation of the counsel for the Revenue that once a notice under sub-section (2) of section 143 is issued, the suspension of the refund arising out of the return filed by the assessee would be automatic and till the passing of the order of assessment under sub-section (3) of section 143. The reasonable interpretation of the statute and the situation in such a case would be, to expect the Assessing Officer to take up an expeditious disposal of the processing of return under sub-section (1) of section 143 of the Act at least once the assessee requests for release of the refund, and send as an intimation to the assessee if he wishes to withhold the same.
AO is directed to complete the process of the assessee's return under sub-section (1) of section 143 of the Act latest by 31.10.2017. If any refund arises out of said exercise, grant the same to the petitioner as per the statutory provisions. Insofar as the assessment of the year 2016-17 is concerned, the time for processing the return under sub-section (1) of section 143 read with proviso is not yet over. We do not propose to issue any direction in this respect for curtailing the statutory time limit envisaged therein.
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2017 (10) TMI 99
Higher compensation for the land acquired for implementation of the Krishna Water Project - the land owner K.Veerasamy passed away, the petitioner was directed by the Court to disburse the amount to the legal heirs of the deceased land owner - arrears of income tax - notice under section 226(3) - Held that:- Unfortunately, the petitioner is no more and therefore, there cannot be summons by the respondent for enquiry to establish that he had paid the enhanced compensation amount to Mr.K.V.Lakshmipathi on 20.12.2003 and to the other legal heirs on different dates and according to the deceased writ petitioner, he has got receipt to establish the same.
Thus, considering the peculiar facts and circumstances of the case, the writ petition is disposed of, directing the respondent to issue notice to the legal heirs of the writ petitioner as well as the legal heirs of the deceased land owner, call them for enquiry, in which the respondent shall verify the original receipt obtained by the petitioner and if satisfied, exonerate the petitioner/legal heirs from any claim and if there is arrears of tax payable by the original land owner, liberty is granted to the Income Tax department to proceed against the legal heirs of the original land owner.
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2017 (10) TMI 109
Relief for release of gold and jewellery - Department has released the gold and jewellery to the petitioner's brother under similar circumstances - Held that:- Considering submission made by the petitioner that apart from search and seizure operation conducted in the business premises of the petitioner, similar search and seizure operation was conducted in the business premises of the petitioner's brother. Though order of assessment has been passed against the petitioner's brother, till date they have not paid taxes, but the Department has released the gold and jewellery to the petitioner's brother. It is not known under what basis, the third respondent has released the gold and jewellery to the petitioner's brother, especially when they are defaulters in payment of tax as computed by the Assessing Officer. In my considered view, this aspect of the matter can also be placed before the ITAT by the petitioner in an application, which they can move for appropriate interim direction for release of gold and jewellery.
Accordingly, this writ petition stands disposed of by giving liberty to the petitioner to file proper interlocutory application in the pending appeal before the ITAT seeking for release of gold and jewellery. It is open to the petitioner to place all points before the ITAT and if, such application is filed, the ITAT is requested to give preference to the application and consider for an earlier disposal of the application, in the light of the fact that the gold and jewellery are in the custody of the Department for over five years. The petitioner is also entitled to raise plea that he alone has been discriminated, when his brother has been granted the relief for release of the gold and jewellery.
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2017 (10) TMI 108
FBT - Writ of Declaration to declare Sections 115 WA(2) and 115 WB(1) and 115 WB (2) as introduced by the Finance Act, 2005 ultra vires of Article 14, 19(1)(g) and 265 of the Constitution of India - Held that:- Considering the fact that the matter is now seized of by the Hon'ble Supreme Court, these Writ Petitions can be disposed of with appropriate directions, leaving it open to the parties i.e. the petitioners as well as the Revenue to abide by the decision of the Hon'ble Supreme Court.
Revenue expressed an apprehension that in the event the Hon'ble Supreme Court uphold the provisions as being a valid piece of legislation, then the assessees like the petitioners should not plead that the action that may be initiated by the Department or in the process of being initiated, is barred by limitation.
The Revenue need not have any apprehension in this regard, as the Court proposes to safeguard the interest of the Revenue by passing the following orders:
“The petitioners are directed to abide by the decision of the Hon'ble Supreme Court where the challenge to the impugned provisions are pending. It is made clear that in the event the Hon'ble Supreme Court upholds the impugned legislation and the Department initiates action or proceeds with the action already initiated, the petitioners/assessees are not entitled to plead limitation and the period during which these Writ Petitions are pending as well as the period till the matter is decided by the Hon'ble Supreme Court, shall stand excluded for computation of limitation”.
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2017 (10) TMI 98
TDS u/s 194J - payments made by the assessee to HRTC - arrangement arrived at inter se M/s. Himachal Pradesh Bus Stand Management Development Authority (Development Authority) and Himachal Pradesh Road Transport Corporation (HRTC) can be said to be in the nature of latter providing professional or technical services to the former? - whether reimbursement of expenditure incurred by the latter would not attract the provisions of Section 194J - Held that:- The arrangement inter se the development authority and HRTC was clear and simple. It was by way of a stop gap arrangement. Till such time the authority developed its infrastructure and recruited the staff, the work of development and management was required to be carried out by HRTC. Hence, employees of HRTC were called upon to continue to discharge such duties. It is in this backdrop, two entities decided to share their resources by arriving at an arrangement, whereby salaries of certain staff and other expenditure incurred by HRTC was to be shared proportionately.
Such an arrangement arrived at between two entities cannot be said to be that of rendering professional services. No legal, medical, engineering, architectural consultancy, technical consultancy, accountancy, nature of interior decoration or development was to be rendered by HRTC. Similarly, no service, which can be termed to be technical service, was provided by HRTC to the development authority, so also no managerial, technical or consultancy services were provided. The arrangement was purely simple. The staff of HRTC was to carry out the work of development and management of the development authority till such time, the said authority developed its infrastructure and the expenditure so incurred by HRTC was to be apportioned on the agreed terms. It is only pursuant to such arrangement, the development authority disbursed the payment to HRTC and, as such, in our considered view, no amount of TDS was required to be deducted on the same. It is only a reimbursement of an expense so incurred by HRTC. - Decided in favour of assessee.
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2017 (10) TMI 97
Rectification of application u/s 154 - petitioner's application u/s 264 requesting CIT to delete the addition made to the total income for the assessment year 2000-2001 was dismissed for non-prosecution - Held that:- A cursory perusal of the order dated 30.03.2005 shows that there is no finding rendered by the 1st respondent on the merits of the matter except stating that the reports of the Assessing Officer and the Additional Commissioner of Income Tax have been perused and the records have been gone through. This is insufficient to show that there was application of mind to the facts of the case. In any event, if the 1st respondent had considered the matter on merits, then reasons should have been assigned in the order dated 30.03.2005. In the absence of any reasons assigned, it has to be held that the merits of the matter were not gone into by the 1st respondent. The observation that there was no necessity to afford an opportunity of personal hearing is incorrect for the simple reason that, the predecessor in office, in her discretion, had afforded an opportunity of personal hearing. That being so, the successor officer cannot state that there is no necessity to afford an opportunity of personal hearing, when his predecessor had thought it fit to do so.
Thus this Court is of the view that the petitioner should not be non-suited on technicalities. Accordingly, the writ petition is allowed and the orders dated 05.06.2006 & 30.03.2005 are set aside and the 1st respondent is directed to hear the petition filed under Section 264 of the Act and take a decision on merits
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2017 (10) TMI 104
Person in default u/s 201(1)/201(1A) - validity of notice u/s 201(1)/(1A) since the assessee falls within the jurisdiction of ACIT/DCIT instead of ITO (TDS-1) - jurisdiction - person responsible (PR) of the assessee bank has not deducted tax at source @20% in the cases where the persons / depositors furnished Form 15G/15H with the bank having invalid/wrong/no PAN - Held that:- Notice issued under section 201(1)/(1A) of the Income Tax Act, 1961 by the Ld. AO was without assuming proper jurisdiction, since the assessee falls within the jurisdiction of ACIT/DCIT instead of ITO (TDS-1) and therefore the impugned notice under section 201(1)/(1A) of the Income Tax Act, 1961 itself was illegal and void-ab-initio and hence, the consequent assessment framed u/s 201(1/)(1A) of the Income Tax Act, 1961 is without jurisdiction, invalid, void ab initio an liable to be annulled . See National Thermal Power Co. Ltd. Vs. Commissioner of Income Tax [1996 (12) TMI 7 - SUPREME Court]
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2017 (10) TMI 107
Penalty under Section 271D - review petition - Held that:- Agreement describes the extent of the property as 0.20 cents. Such description of the extent, would ordinarily be taken as 20 Sq. Links, as done by the Tribunal. On the other hand, if the extent was, in fact, 20 cents, the description should have been either as 20 cents or 0.20 acres. Therefore, the Tribunal cannot be faulted for its conclusion that the extent of the property is 0.20 Sq. Links. This being the factual situation, we are not persuaded to differ from the views taken by the Tribunal and in the judgment, relying on Annexure-A, a valuation report obtained subsequent to the judgment of this Court, now produced along with this review petition.
Even otherwise, a reading of the order of the Income Tax Appellate Tribunal would show that, in paragraph 8 of its order, the Tribunal has given reasons (a) to (g) to hold that the theory that ₹ 15 lakhs was received by the assessee as property advance under the agreement, is not a convincing one. It is only in sub para (b) that the Tribunal has held the extent of the property to be 20 Sq. Links. Even if that finding is found to be vitiated, the other reasons given by the Tribunal in para 8(a) and (c) to (g) are independent of sub para (b) and are unassailable.
Therefore, so long as these conclusions remain valid, which it should be, the conclusions as contained in sub para (b) cannot have any impact thereon. We are not persuaded to think that the judgment deserves to be reviewed.
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Customs
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2017 (10) TMI 96
N/N. 24/2015-20 and 25/2015-20, both dated 25th August, 2017 - Import of Gold from Seoul, South Korea - restricted item - restrictions put upon the import of Gold by the notifications dated 25th August, 2017 - case of petitioners is that they should be allowed to import Gold without any restrictions brought in by the notifications - Held that: - The Court proceeds on the basis for the purpose of passing this order, that the two impugned notifications were published in the Gazette electronically in terms of Section 8 of the Information Technology Act read with OM dated 30th September, 2015 issued by the PSP Division, only on 28th August, 2017 i.e. after the dates of the respective imports of the two consignments from Seoul, in South Korea - the Court is satisfied that the Petitioners have made out a prima facie case for grant of interim relief as prayed, for the provisional release of the consignments covered by the B/Es presented by the Petitioners to the Customs Authorities - the Court directs that till the next date of hearing, the SCNs issued to the Petitioners shall not be proceeded with by the Respondents.
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2017 (10) TMI 95
Provisional release of goods - insistence to furnish Bank Guarantee - Held that: - similar issue decided in the case of M/s. Sri G.P.R. Leathers, Proprietor Shri G. Prakash Reddy, M/s. Parveen Leather Exports Versus The Commissioner of Customs (Exports) , The Deputy Commissioner of Customs [2017 (7) TMI 834 - MADRAS HIGH COURT], where it was held that seeking security in the form of bank guarantee is uncalled for and in a sense, dilutes the very essence of the order - goods granted provisional release on fulfillment of conditions imposed by the Court - petition allowed.
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2017 (10) TMI 94
N/N. 24/2015-20 and 25/2015-20, both dated 25th August, 2017 - Import of Gold from Seoul, South Korea - restricted item - restrictions put upon the import of Gold by the notifications dated 25th August, 2017 - case of petitioners is that they should be allowed to import Gold without any restrictions brought in by the notifications - Held that: - The Court proceeds on the basis for the purpose of passing this order, that the two impugned notifications were published in the Gazette electronically in terms of Section 8 of the Information Technology Act read with OM dated 30th September, 2015 issued by the PSP Division, only on 28th August, 2017 i.e. after the dates of the respective imports of the two consignments from Seoul, in South Korea - the Court is satisfied that the Petitioners have made out a prima facie case for grant of interim relief as prayed, for the provisional release of the consignments covered by the B/Es presented by the Petitioners to the Customs Authorities - the Court directs that till the next date of hearing, the SCNs issued to the Petitioners shall not be proceeded with by the Respondents.
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2017 (10) TMI 93
100% EOU - Violation of import conditions - marble and granite - validity of SCN - it was alleged that the petitioner, a Proprietary concern has not only violated the conditions of import of marble and granite from other countries free from payment of customs duty and then instead of re-exporting the finished products manufactured out of this marble and granite blocks, since it was a 100% EOU, diverted the finished goods through its sister concerns into the domestic market - Time limitation u/s 11A of the Central Excise Act, 1944 - maintainability of petition - Held that: - all the contentions which are sought to be raised by the petitioners before this Court for assailing the impugned show cause notice can very well be raised before the said Respondent No.2-concerned authority also and the said authority can also very well decide these objections and contentions in accordance with law.
The mixed question of facts and law about the limitation under Section 11A of the Act and the period of 10 years covered under the show cause notice, various stages of adjudication and appellate proceedings pending before the different authorities of the Respondents-Department, their inter se effect on each other, are all complex cobweb of facts which requires adjudication by the competent authority only and this Court cannot be called upon to pronounce upon the allegations, their merit, the possible defence its reply and reasons to be assigned by the concerned authority for adjudicating the same in a particular manner - It would be premature and undesirable to cut short the said enquiry and adjudication process at this stage.
Ultimately, it is the quest of truth and truth alone being the guiding star in the process of the judicial dispensation and that should be the touch stone for testing such challenges at the preliminary stages of the proceedings.
This Court does not find any good ground for interference in the Show Cause Notice at this stage - petition dismissed - decided against petitioner.
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2017 (10) TMI 92
Violation of import condition - import of certain capital goods as an STPI unit undertaking to export services as per the license granted to them - SCN was issued to the appellant for demand of the customs duty as appellant could not produce any evidence in respect of exports made by them - Held that: - In the absence of any documents even before the Tribunal to indicate that they have complied with the obligation of export, the impugned order of the 1st Appellate Authority is correct - appeal dismissed - decided against appellant.
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2017 (10) TMI 91
Absolute Confiscation - Penalty - Gold Buscuit - non-production of any valid document of the possession of the foreign origin gold - Held that: - the foreign origin gold is a notified item u/s 123 of the Act, 1962 and the burden of proof lies with the person from whose possession the goods were seized - the Ld. Advocate stated that the appellant purchased the seized gold upon payment through RTGS. But no evidence was placed.
Considering the value of gold, the quantum of penalty imposed on the appellants should be reduced. Penalty imposed on Shri Utpal Kr. Dey and Shri Dipak Sen is reduced to ₹ 5,00,000/- and ₹ 1,00,000/- respectively - absolute confiscation upheld - decided partly in favor of appellant.
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Corporate Laws
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2017 (10) TMI 89
Oppression and mismanagement - eligibility of meeting appointing the AD - Held that:- Here no grounds are given for removal of the petitioner as Director. The contention of respondents that they have issued notice to convene AGM on 29.12.2010 to transact the business of removal of petitioner as Director. This is a notice dated 07.12.2010 said to have been sent to the petitioner under Certificate of posting. The notice fixing the date for EGM did not contain any reasons for removal of petitioner as Director. There was no E-mail communication to the petitioner about the proposed AGM on 29.12.2010. It is surprising to see as to why the notice was sent to the petitioner by Certificate of posting than through E-mail. There was lot of correspondence between the petitioner and the respondents and vice versa through E-mail only concerning all important matters of the Company. It is very surprising that Respondents No.1 to 3 have chosen the mode of communication through Certificate of posting rather than e-mail. From the above, the intention of Respondents is evident that they wanted to keep the petitioner in dark so that they can take drastic action against him. The petitioner being 50% shareholder of the 1st Respondent Company and also a promoter, his removal as Director of the Company on the ground of causing loss to the Company is totally unsustainable. It is clear that the said allegation was invented with a view to take control of the Company by Respondents No.2 and 3 by removing the petitioner. Thus, all these actions were initiated behind the back of the petitioner.
We are of the opinion that the petitioner has made out a case of oppression and mismanagement against Respondents No.2 and 3 and consequently, we pass the following reliefs against Respondents No. 2 and 3 by allowing the petition.
(1) By declaring that the meeting held on 24.08.2010 by which Respondent No.3 was appointed as Additional Director as illegal and is therefore, his appointment is set aside;
(2) By declaring that the removal of petitioner as Director of the 1st respondent company in the impugned AGM dated 29.12.2010 as illegal and contrary to law and is therefore set aside and the petitioner is restored as Director of the 1st respondent Company;
*Relief No. 3 deleted in lieu of modified order dated 30.08.2017 *(3) In the facts and circumstances of the case elaborated above, the petitioner may be permitted to invest for allotment of 22,500 shares at the current valuation + 67,500 shares of the Company and the Company should have further shares to the petitioner in terms of the provisions of Section 62 of the Companies Act, 2013
(4) By declaring that Form-32 dated 29.12.2010 filed before the Registrar of Companies, Karnataka at Bangalore, as null and void
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Insolvency & Bankruptcy
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2017 (10) TMI 90
Corporate Insolvency Resolution Process - Insolvency and Bankruptcy Code, 2016 (I&B Code) - fulfillment of necessary procedures by Operational Creditor - Held that:- The Operational Creditor has fulfilled all the requirements of law and has also proposed the name of IRP after obtaining the written consent in Form-2. We are satisfied that Corporate Debtor committed default in making payment of the outstanding debt. Therefore, TCP/385/(IB)/CB/2017 is admitted and we order the commencement of the Corporate Insolvency Resolution Process which ordinarily shall get completed within 180 days, reckoning from the day this order is passed.
We appoint Mr. R. Krishnamurthy, as IRP as proposed by the Operational Creditor. There is no disciplinary proceedings pending against the IRP as evidenced from Form-2 and his name is reflected in IBBI website. The IRP is directed to take charge of the Corporate Debtor's management immediately. He is also directed to cause public announcement as prescribed under Section 15 of the I&B Code, 2016 within three days from the date the copy of this order is received, and call for submissions of claim in the manner as prescribed.
We declare the moratorium which shall have effect from the date of this Order till the completion of corporate insolvency resolution process, for the purposes referred to in Section 14 of the I&B Code, 2016
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Service Tax
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2017 (10) TMI 86
CENVAT credit - input services - outdoor catering services - Rent-a-Cab services - Held that: - In case of Principal Commissioner v. Essar Oil Ltd. [2015 (12) TMI 1062 - GUJARAT HIGH COURT], Division Bench of this Court on the question of charges for rent a cab services, and held that the term 'input service' would mean any service used by the manufacturer directly or indirectly in or in relation to manufacture of final products and clearance of final product from the place of removal and credit allowed.
On the question of charges for rent a cab service, Division Bench of this Court in case of Commissioner of Central Excise v. Ferromatik Milacron India Ltd., [2010 (4) TMI 649 - GUJARAT HIGH COURT], has held that canteen services which are indispensable in relation to manufacture of the final products would certainly fall within the ambit of “input service” and the credit was allowed.
Appeal dismissed - decided against Revenue.
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2017 (10) TMI 85
Jurisdiction of Commissioner (Appeals) - Power to remand - Whether the learned Commissioner (Appeals) vide the impugned order, have rightly remanded the matter to the Deputy Commissioner to hear the respondent-assessee and dispose of the objections with respect to the rebate claim, in accordance with law?
Held that: - the Hon'ble Gujarat High Court in the case of Commissioner of Service Tax Vs Associated Hotels Ltd. [2014 (4) TMI 406 - GUJARAT HIGH COURT] have held that Sub-section (4) of section 85 itself contains the width of the power of the Commissioner (Appeals) in hearing the proceedings of appeal under section 85. The scope of such powers flowing from sub-section 85(4) therefore cannot be curtailed by any reference to sub-section (5) of section 85 of the Finance Act, 1994 - decided against Revenue.
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2017 (10) TMI 84
SSI exemption - turnover within threshold limit - validity of SCN - case of appellant is that the SCN is vague and full of ambiguity - Held that: - the allegations in the SCN are vague and do not contain the gist of accusation and/or the basis on which the appellant is required to respond. The amount have been taken from the balance-sheet, trading or profit and loss account of the appellant and tax have been calculated thereon.
Further, in spite of categorical averments made by the appellant in their reply to the show cause notice, the same have not been considered nor any findings recorded as to why a particular services is taxable, although claimed exempt by the appellant - the SCN is vague and incomprehensible, leaving the appellant-assessee wondering as to what is the exact nature of allegations they are required to meet. Although the SCN discusses the various classifications of service but it fails to give the basis of categorization of the services under particular heads - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 83
Rectification of mistake - the applicant has failed to produce FIRC issued by the Bank - Held that: - It is evident from the record that the appellant failed to produce FIRC certificate issued from the Bank that remittance is convertible Foreign Exchange - the bankers had not given clear confirmation in respect of foreign exchange - there is no mistake apparent on the fact of the record - ROM application rejected.
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Central Excise
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2017 (10) TMI 82
Penalty - input credit on parts used for construction of fixed and semifixed structures - Held that: - When the assessee bonafide carrying a belief which cannot be stated to be wholly untenable that cenvat credit on such inputs was available, claimed the same with full knowledge of the department, merely because eventually such credit was disallowed, would not give rise to penalty proceedings - appeal dismissed - decided against Revenue.
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2017 (10) TMI 79
Clandestine removal - copper wires, falling under Chapter 74 of the Central Excise Tariff Act, 1985 - penalty - Held that: - the Appellant had recorded the stock particulars of the finished goods in the statutory records, the same cannot be confiscated and redemption fine cannot be imposed on the Appellant - On perusal of case records, the Appellant had produced the records/documents to show that the goods were not removed in the clandestine manner. However, such documents and explanation furnished by the Appellant have not been considered by the authorities below and the adjudged demand was confirmed solely based on the allegations levelled in the SCN - prudence and justice require that confessional statement should not be made sole ground from proving guilt. Thus, guilt should be established beyond reasonable doubt on the basis of material/evidence available on record. The Department has not established its case satisfactorily in support of clandestine removal of goods - demand withheld.
As regards confiscation of finished goods in the case of Appellant No.2, the ld. Commissioner (Appeals) has upheld the confiscation, stating that the goods were not accounted for and no documentary evidences with regard to the legitimate possession of the same were produced - Held that: - Since, the Department has taken the divergent views regarding maintenance of records; confiscation of finished goods cannot be upheld in absence of proper substantiation. Thus, the impugned order upholding confiscation of finished goods is not legally sustainable. Further, the documents/records / explanation furnished by the appellant with regard to alleged clandestine removal of goods have not been addressed properly by the authorities below. Without any independent corroborative evidence of the buyer of the goods, mode of transport, method of receipt of sale proceeds etc., the statement recorded from the supervisor Shri Satish Kashyap alone, cannot be relied upon to support clandestine manufacture and clearance of the finished goods - demand withheld
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 78
SSI Exemption - use of brand name - It appeared to Revenue that appellant have availed the SSI exemption wrongly in contravention of provision of Para-four of N/N. 8/2002 CE read with N/N. 8/2003 CE, which states that the exemption contained in the Notification shall not apply to specified goods bearing a brand name or trade name whether registered or not except in the case of exemption provided therein - Held that: - there is no averment in the SCN and or finding that Hi-Tech brand (as used by appellant) is owned by the other manufactures, namely M/s Hi-Tech Medical Products Private Limited and M/s Aman Medical Products Private Limited - save and except making a bald allegation that the appellant company is a related person with the other two companies, no facts have been brought on record as regards common shareholding or common management etc.
Further, in view of the clarification issued by the Ministry of Finance, Department of Revenue dated 01 September, 1994, it has been clarified with the example of lock manufacturers that where a brand name does not belong to any particular manufacturer, any unit is free to use any name or such name - In the facts of the present case, it is clear that the brand name Hi-Tech was not owned by any particular person or company and thus, the appellant cannot be deprived the benefit of the small-scale exemption scheme under N/N. 8/2002 read with 8/2003 CE as amended - further, the name of the appellant company is M/s Hi-Tech Syringes Private Ltd and thus putting their name on their product does not amount to use of brand name of another.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 77
CENVAT/MODVAT credit - fabrication and installation of machine, machinery parts - whether the respondent has rightly availed Modvat credit on HR Sheet, Plate, Channel, Shape & Section, Round, Angle etc. used in fabrication of machine, machinery parts and support structure necessary for installation of heavy machinery? - Held that: - The Hon’ble High Court of Chhattisgarh in the case of U.O.I. Vs. Associated Cement Company Ltd. [2010 (10) TMI 1142 - CHHATTISGARH HIGH COURT] has held that structural items-Angles, Channels, Plates, Rods etc. required to make machines function without any vibration or movement, cannot be said to be used in construction of buildings but linked with machinery used in production of final product, therefore, the Cenvat credit is admissible - credit allowed - appeal dismissed - decided against Revenue.
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2017 (10) TMI 76
Suo moto Abatement for the period of closure of factory - Pan Masala Packing Machines (Collection of Duty and Determination of Capacity) Rules, 2008 - Held that: - similar issue is squarely covered by the ruling of Hon’ble Gujarat High Court in Thakkar Tobacco Products Private Ltd. [2015 (11) TMI 319 - GUJARAT HIGH COURT] in favor of the appellant, where it was held that When the rules do not provide for the manner in which duty is required to be abated, nor do they provide that abatement shall be by an order of the Commissioner or any authority, but nonetheless provide for abatement of duty and the extent of entitlement to such abatement, no fault can be found in the approach of the assessee in suo motu taking the benefit of such abatement.
Demand of interest u/s 11AB - Held that: - the restarting of operation of the factory subsequent to 05/08/2009, amounts to increase in the number of operating packing machines in the factory during the month - the payment of duty was required to be made by the 5th day of the next month, being September, 2009, which admittedly have been paid on such date - no interest is payable under Section 11 AB of the Act by the appellant assessee in the facts of this case.
Whether the appellant is entitled to abatement, as they have cleared raw material and packing goods which are not the notified goods? - Held that: - the intention of legislature has been clarified by the subsequent amendment that the word goods appearing in the second part of the first proviso are only notified goods and nothing else. In this view of the matter, we set aside the impugned order and allow the appeal with consequential benefits.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 81
Additional ground incorporated in appeal - Whether the Customs, Excise and Service Tax Appellate Tribunal could have gone into the merits of the additional grounds sought to be incorporated in Appeal, while deciding the application made by the appellant under Rule 10 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982? - Sub-Rule (1) of Rule 8 of the said Rules - Held that: - On conjoint reading of SubRule (1) of Rule 8 and Rule 10, it is apparent that hearing before the Appellate Tribunal need not be confined to the grounds of Appeal set forth in the Memorandum of Appeal filed in accordance with Rule 8. Only embargo on the power of the Tribunal in considering the grounds which are not raised in the Memorandum of Appeal is that the parties to the Appeal should be put to notice that a particular ground which is not specifically set out in the Memorandum of Appeal will be considered by the Appellate Tribunal on merits.
The issue whether the additional grounds sought to be urged had any merit could not have been gone into while deciding the application made containing limited prayer as aforesaid. The issue to be decided while considering the said application was whether the appellant should be allowed to urge additional grounds set out in the application at the time of final hearing of the Appeal. The merits of the additional grounds could have been considered at the time of final hearing. Hence, even the order passed on the said application will have to be set aside and the said application will have to be allowed.
Appeal allowed in part.
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2017 (10) TMI 80
Restoration of Appeal - Condonation of delay of 2659 days in filing appeal - According to the appellant, it was unaware of the judgment and it was therefore, that the delay has occurred - Held that: - The assertion of the appellant that it was unaware of the judgment of the Apex Court has not been found to be untrue. Similarly, the Tribunal has also not found untrue the claim of the appellant that the relevant files were misplaced - considering the huge financial liability that will be fastened on the appellant, the Tribunal should not have dismissed the application for condonation of delay filed by the appellant - delay condoned - appeal restored.
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2017 (10) TMI 75
Ajustment of refund claim against the interest amount outstanding - no SCN issued - Held that: - the impugned order adjusting the sanctioned refund claim is required to be set aside and the matter is required to be remanded for verification of facts as well as the fact as to whether any interest proceedings stands initiated by the adjudicating authority pending against the assessee - appeal allowed by way of remand.
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2017 (10) TMI 74
Clandestine removal - demand of duty of Central Excise amounting to ₹ 9,80,772/- is based mainly on the fact that the goods were cleared under six fake/parallel invoices - Held that: - The appellant has not been able to give any evidence to counter the facts given in the impugned order - demand upheld.
Clandestine manufacture and removal - demand of ₹ 19,96,320/- with interest on account of finished goods manufactured by using raw material received by the appellant and which were not accounted for in their records - Held that: - there is no evidence on record positively to indicate that the appellant manufactured finished goods out of the raw material and sold it clandestinely - appellant pleads that they have not been given opportunity for cross-examination of the persons whose statements were relied upon in this regard by the department - matter is remanded to original adjudicating authority for fresh decision after giving opportunity to the appellant for cross-examination - matter on remand.
Appeal allowed in part by way of remand.
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2017 (10) TMI 73
Area Based exemption - N/N. 50/2003 CE dated 10/06/2003 - products cleared from their factory established in the Eureka Forbes Industrial Area - Held that: - it is not the intention of Revenue that exemption be allowed with respect to only particular plot numbers. The notification starts with the words Exemption to goods other than specified goods cleared from units located in the Industrial Growth Centre or Industrial Infrastructure Developer Centre, etc. of Uttranchal and Himachal Pradesh - there is no intention of the Government in the said notification to give exemption with respect to particular plot numbers - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 72
Penalty u/r 25 of CER, 2002 - non-payment of duty on clearance value - Held that: - there is no case of any suppression or clearance of goods without proper maintenance of record. Further, there is no proposal of any confiscation of any goods in the SCN - the elements or the condition precedent for imposing penalty under Rule 25 are not obtaining in the facts of the present case - penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 71
SSI exemption - use of Brand Name of others - the assessee is partnership firm which was established by two brothers and they have surrendered their right in favour of their sons - Held that: - trade mark was used by the sons who replaced their fathers as partner - they are entitled to use the trade mark specially when this trade mark is not belonging to any other person or nobody or claimed by any other person.
Reliance placed in the case of Kali Aerated Water Work, Salem Versus Commnr. of Central Excise, Madurai [2015 (6) TMI 226 - SUPREME COURT], where it was held that Trade name 'Kalimark Aerated Water Works' and trade mark mentioned in the said agreement would remain vested in all the parties including the appellant and the appellant was also allowed to use the same.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 70
100% EOU - Goods cleared to DTA from EOU - exemption under N/N. 6/2006-CE dated 01.03.2006 - duty calculation as per Section 3 proviso of Central Excise Act, 1944 - Held that: - The duty payable for such clearance is in terms of the proviso to section 3 of the Central Excise Act, 1944. The said section stipulates that the duty shall be equal to aggregate of duties of customs which would be leviable under Customs Act, 1962 or any other law for the time being enforced, on the like goods produced or manufactured outside India, if imported into India. Admittedly the aggregate of duties of customs will include additional duty of customs which is computed based on the rate applicable to goods produced or manufactured in India - In the present case, the N/N. 6/2006-CE is applicable to goods manufactured in India. The objection of the Revenue is that the said Notification issued under section 5A of the Act did not specifically indicate that the same is available to goods produced or manufactured in 100% EOU. In the absence of such stipulation the rate of duty applicable should be determined without extending the benefit of N/N. 6/2006-CE.
While calculating the duty to be paid in terms of proviso to section 3, the appellant-assessee can avail the exemption N/N. 6/2006-CE. - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 69
Interpretation of Statute - notified goods - Rule 10 of the Pan Masala Packing Machine Rules, 2008 - Compounded Levy Scheme - refund/abatement claim - rejection of said refund/abatement claim on the ground is that the word used in the second clause first proviso of Rule 10 is goods and not notified goods and therefore no removal of goods including inputs should have been effected by the appellant during the closure period from 16/10/2009 to 31/10/2009 - Held that: - the word goods used in the second part of the first proviso to Rule 10 of the PMPM rules indicates only notified goods and nothing else. By no stretch of imagination, the word goods includes inputs - in the several provisions of the Central Excise Act and the Rules the word inputs has been used exclusively and never interchangeably with the words goods. Further, this interpretation is also substantiated by the amendment of the the said PMPM Rules, 2010, wherein the word notified has been added before the word goods in the second part of the first proviso to the said Rule 10. The said amendment was brought by N/N. 8/2010-CE (NT) dated 27/02/2010.
The intention of legislature has been clarified by the subsequent amendment that the word goods appearing in the second part of the first proviso are only notified goods and nothing else - appeal allowed - decided in favor of appellant.
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CST, VAT & Sales Tax
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2017 (10) TMI 68
Whether iron wire obtained from iron rods is a separate and distinct commodity from iron rods so as to make the same taxable separately over and above the sales tax already paid on iron rods?
Held that: - reliance placed in the case of COLLECTOR OF CENTRAL EXCISE Versus TECHNOWELD INDUSTRIES [2003 (3) TMI 123 - SUPREME COURT OF INDIA], where it was held that Merely because there are two separate entries does not mean that the product becomes excisable. The product becomes excisable only if there is manufacture - iron rods and iron wires are one and the same commodity - appeal dismissed - decided against Revenue.
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Indian Laws
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2017 (10) TMI 88
Levy of Local Body Tax (LBT) - SIM cards, recharge coupons and e-recharge on its entry into municipal limits of a Municipal Corporation u/s 127(2)(aaa) of the Maharashtra Municipal Corporations Act, 1949 - Held that:- SIM cards are normally made of plastic or paper. The SIM cards are capable of being bought and sold. The SIM cards have utility value. The SIM cards are capable of being transferred, stored and possessed. The concept of Sales Tax and LBT are not the same. LBT can be levied on the goods brought within the limits of a Municipal Corporation even if the same are not sold, but the same are brought either for consumption or use.
As far as e-recharge is concerned, by no stretch of imagination, it can be said that e-recharge is capable of being brought into limits of a city. In clause 133 quoted above, e-recharge is not specifically included. Assuming that it is included, it is nothing but an electronic download by use of internet. Hence, e-recharge cannot be subject to levy of LBT. E-recharge is capable of being used. But it cannot be said that by downloading e-recharge through internet, e-recharge is brought into limits of a Municipal Corporation. Hence, LBT cannot be recovered on e-recharge.
Now, coming back to SIM cards and recharge coupons/cards, as held earlier, the same will be covered by the definition of goods under subsection 25 of section 2 of the said Act. Charging section for LBT under the said Act is section 152P. LBT is leviable on the entry of goods into the limits of city for consumption, use or sale. Hence, the first respondent was well within its powers to levy LBT on SIM cards and recharge voucher in physical form.
Hence, the petition must succeed in part and we pass the following order:
(I) We hold that e-recharge is not covered by the Item No.133 of the Government Notification dated 28th March 2013 and that in any event, LBT cannot be levied on e-recharge;
(II) We reject the contention of the petitioner that the LBT is not payable on the SIM cards and recharge vouchers/coupons brought into the limits of the first respondent-Municipal Corporation;
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2017 (10) TMI 87
Offence punishable under Section 138 of the Negotiable Instruments Act - dishonor of cheques - Held that:- The accused has failed to prove that the cheque was not issued for a consideration. It is proved on record that the accused has utilized the money of the complainant to the extent of cheque, he has issued the cheque to the complainant towards repayment and it is for the consideration.
After going through the facts of the present case, this Court finds that the accused has failed to rebut the initial presumption in favour of the complainant, as the cheque was issued towards the repayment of money, the accused has withdrawn from the account of the complainant. So, this Court comes to the conclusion that initially presumption in favour of the complainant that it was issued for consideration towards the payment of money, which the accused was liable to pay the complainant, is not rebutted.
Complainant has proved its case beyond the shadow of reasonable doubt. Now, coming to the arguments of learned Senior counsel appearing on behalf of the accused that as the complainant has also maintained a suit for the recovery of this amount, which was dismissed in default and so, the complaint requires dismissal. This Court finds that no substance in the arguments of learned Senior Counsel for the accused that the complainant should enforce has a right by way of civil litigation, the complainant has proved its case beyond the shadow of reasonable doubt. This Court finds that no force in the arguments of learned Senior Counsel for the accused.
The petition maintained by the petitioner is without any merit, as the complainant has proved its case beyond the shadow of reasonable doubt. The cheque was issued for consideration, so the judgment of conviction passed by the learned Trial Court and affirmed by the learned lower Appellate Court, needs no interference. The present revision petition, which sans merits, deserves dismissal and is accordingly dismissed.
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