TMI Tax Updates - e-Newsletter
November 19, 2021
Case Laws in this Newsletter:
GST
Income Tax
Customs
Corporate Laws
Insolvency & Bankruptcy
Service Tax
Central Excise
Indian Laws
Highlights / Catch Notes
-
GST:
Seeking grant of Bail - Input tax credit - There is no retraction of statement dated 25th June, 2021. As per GSTR-2A of applicant the amount of ITC availed by applicant in respect to three firms is total taxable value in ₹ 990.17 Crores. The custodial interrogation of applicant is necessary. - The applicant have not made out case for granting relief under Section 438 of Cr.P.C. - bail application dismissed. - HC
-
GST:
Seeking grant of anticipatory bail - irregular availment of input tax credit - fictitious/dummy/non genuine firms - The applicants from their personal e-mail ID have made correspondence with CGST officers and other tax payers in relation to GST query of one of dummy firms. Both the applicants have floated 17 dummy on-genuine firms wherein fake invoices valued more than ₹ 300 crores approximately involving more than ₹ 1,500 crores of GST were involved. - No case for grant of anticipatory bail is made out - HC
-
Income Tax:
Income from the nature of interest received by the assessee in DRDO/ISRO accounts (for short ‘FD A/cs’) - the assessee, DRDO/ISRO are either Government Departments or Government Companies. The burden is discharged by the assessee to not go by recognition of entries in books of account, but appreciate all the circumstances while treating whether the interest is computable or non-computable income of the assessee. Hence, in the circumstances of the case, the interest income for the Assessment Year 2009-10 is non-computable income of assessee. - HC
-
Income Tax:
Validity of appointing Special Audit u/s 142(2A) - In the present case, the proceedings dated 09.12.2011 was treated as a show cause notice for all purposes both by the AO and by the Assessee/petitioner and the petitioner submitted his objections in detail on 15.12.2011 and thereafter, the approval from the CIT was obtained and the objections were disposed of on 16.12.2011. The further objections raised on 23.12.2011, were also disposed of by the AO - there is no reason to disbelieve the proceedings dated 09.12.2011, though it was not aptly worded - HC
-
Income Tax:
Correct head of income - Lease rent received - to be treated as business income or as income from other sources - There was no attempt to exploit the commercial assets of the company and instead the assessee merely renewed rental arrangement and received rent as a passive receipt. - the rental income received by the assessee from ATL ought to be treated as income under the head “income from other sources”. - HC
-
Income Tax:
MAT Computation of book profit u/s 115JB - Disputed central excise demand raised against the assessee - denial of writing back benefit to the assessee - We appreciate and accept the conclusion recorded by the Tribunal by taking note of the fact that the assessee was subjected to the slab rate of 30% for the assessment years 1997-1998 and 1998-1999 and computed the tax payable thereon under normal provisions. The denial of writing back benefit to the assessee in these assessment years are illegal and the finding recorded by the Tribunal is valid - HC
-
Income Tax:
Penalty u/s 271(1)(c) - Mandation of specification of charge - It is clear that for the AO to assume jurisdiction u/s 271(1)(c), proper notice is necessary and the defect in notice u/s 274 of the Act vitiates the assumption of jurisdiction by the learned Assessing Officer to levy any penalty. In this case, facts stated supra, clearly establish that the notice issued under section 274 read with 271 of the Act is defective - No penalty - AT
-
Income Tax:
Valuation of investments held as stock in trade - whether the loss of in account of valuation of stock can indeed be allowed as a deduction in computation of business income? - The the action of the AO, which has been upheld by the learned CIT(A) in a very mechanical manner without application of mind, cannot meet our judicial approval. - Additions to be deleted - AT
-
Income Tax:
Disallowance on interest u/s. 36(1)(iii) - AO has compared the payment of interest @ 12%/15% on the unsecured loan obtained by the assessee with the interest amount received by the assessee @ 8% on FDR made with the HDFC bank - the definite amount of interest paid on unsecured loan used to be on higher side compared to the interest charged on secured loan, therefore, we do not find any justification in the decision of ld. CIT(A) in sustaining the disallowance of interest payment made by the Assessing Officer. - AT
-
Customs:
Jurisdiction - power of ADG, DRI toissue SCN - proper officer to issue SCN or not - Section 28(4) of Customs Act - In the Customs Act, the Shipping Bill has to be filed with ‘the proper officer’ under Section 50 which can be re-assessed under Section 17 by ‘the proper officer’ and finally the clearance of goods under Section 51 is also to be given by ‘the proper officer’. - AT
-
Customs:
Levy of penalty u/s 112A on the courier service - Seizure of demonetised Indian currency - wrong declaration in relation to an Airway Bill due to which demonetised Indian Currency notes got couriered to India under the guise of being called as documents - section 82 of the Customs Act - There is nothing on record to show or indicate that it was appellant who has wilfully or intentionally made the declaration. - No penalty - AT
-
Corporate Law:
Rights Issue - allegation of Right Issue is for a mala fide purpose and is the modus operandi to siphon further funds from the first Respondent Company - The inter-corporate loans were genuine and observe that if the debt due is not paid, there was a possibility that the Lenders could have taken coercive action for the recovery of their dues, the prayer sought for by the Respondents seeking Additional Capital by going for Rights Issue, is justified. - AT
-
Service Tax:
Levy of service tax - forfeiture of earnest money and retention of compensation / liquidation damage for not delivery of purchased goods by the other party - declared service or not - The only purpose is for minium compensation and of forfeiting the earnest money is to ensure that the default act is not undertaken again or repeated. However, from any stretch of imagination the retention of such amount cannot be said to be an act of receiving consideration that too towards toleration of the defaulting act of the other parties. - No demand - AT
-
Service Tax:
Refund of unutilized CENVAT credit accumulated - Once it is established that the Appellants are providing output service they are entitled to take credit of input service. It is an admitted fact that credit proportionate to services provided within the taxable territory has been reversed. After such reversal remaining unutilized CENVAT Credit pertains only to export of legal services and becomes eligible for refund in terms of Rule 5 of CCR and Notification no. 27/2012-CE(NT) - AT
-
Central Excise:
Area Based exemption - benefit of the exemption N/N. 50/2003-CE - No document is there establishing that the commercial manufacture had commenced before 31 March 2010 - None of the documents which are said to have been produced before the Commissioner (Appeals) pertain to physical verification and finding of any authority to show that the factory was set up and commercial production commenced before 31 March 2010. - The appellant is not entitled to the benefit of exemption - AT
-
Central Excise:
Entitlement to interest on refund - refund of the pre-deposit made or deposit made during investigation, under protest - The Adjudicating Authority is directed to grant interest @ 12% p.a. from the date of deposit till the date of refund. - AT
Articles
Notifications
Customs-
92/2021 - dated
18-11-2021
-
Cus (NT)
Supersession Notification No. 90/2021-Customs(N.T.), dated 3rd November, 2021
GST - States-
14/2021–State Tax - dated
17-11-2021
-
Delhi SGST
Extend specified compliances falling between 15.04.2021 to 30.05.2021 till 31.05.2021 in exercise of powers under section 168A of DGST Act
SEZ-
S.O. 4773 (E) - dated
10-11-2021
-
SEZ
Amendment in Notification S.O. 3732(E) dated 26th July, 2018
-
S.O. 4772 (E) - dated
10-11-2021
-
SEZ
Central Government de-notifies an area of 226.2143 hectares, thereby making resultant area as 1653.0930 hectares at Ponnada, Mulapeta, Ramanakkapeta Villages in Kakinada, East Godavari District, in the State of Andhra Pradesh
-
S.O. 4771(E) - dated
9-11-2021
-
SEZ
Central Government notifies an additional area of 0.71 hectare, as a part of Special Economic Zone, thereby making total area of the Special Economic Zone as 3.60 hectares at Gachibowli Village, Serilingampally Mandal, Ranga Reddy District, in the State of Telangana
Circulars / Instructions / Orders
News
Case Laws:
-
GST
-
2021 (11) TMI 646
Vires of section 16(2)(c) of the Central Goods and Services Tax Act, 2017 - explanation has been called for from the petitioners as to why action, as proposed may not be taken - HELD THAT:- Issue notice to the respondents, returnable on January 11, 2022. Since the vires of section 16(2)(c) of the CGST Act is under challenge, the petitioners are directed to put the Attorney General for the Union of India on notice. Pendency of the writ petition shall, however, not preclude the respondent no.1 to take the proceedings arising out of the impugned show cause notice to its logical conclusion; however, any order passed in such proceedings shall be subject to and abide by the result of this writ petition.
-
2021 (11) TMI 645
Blocking of Input tax credit - Credit admissible to the petitioner was blocked on 28.01.2020 and is continuing for more than one year - HELD THAT:- In view of the communication issued by the office of the Directorate General of Goods and Service Tax Intelligence, Bhubaneswar Zonal Unit, informing that Input Tax Credit of the petitioner M/s. Beekay Steel Industries Ltd., has already been de-blocked from 09.11.2021, cause of action for continuing this writ petition does not survive. The writ petition is disposed off as having been rendered infructuous, leaving open the issue regarding vires of Sections 16, 17, 49 and 49A of the CGST/APGST Act, 2017, to be decided in an appropriate case.
-
2021 (11) TMI 644
Seeking grant of anticipatory bail - availment of fraudulent input tax credit under fake invoice without movement of goods - section 67(2) of CGST Act - non-compliance with the summons - non-existent suppliers - HELD THAT:- There is sufficient evidence against applicant. He is engaged in availing fraudulent tax credit. The statement of applicant was recorded u/s. 70 of the Act. There are 12 non existent suppliers. The respondents have power to arrest. What is required is reason to believe about involvement of the suspect. There is sufficient evidence on record to satisfy the reason to believe. No case is made out for granting relief to the applicant - Bail application rejected.
-
2021 (11) TMI 643
Seeking grant of Bail - Input tax credit - issuance of invoices of bills or without supply of goods or services - retraction of statements - corroborative evidences or not - offence under Section 132(b) of CGST Act - HELD THAT:- It is apparent that the respondents had received information from CGST Jodhpur vide letter dated 16th March, 2021. M/s. Gajmukhi Bullion was found non existent at the registered place of business. The information was provided regarding recipients of M/s. Gajmukhi Bullion pertaining to jurisdiction of CGST and Cx. Mumbai that one of the supplier is M/s. Gajmukhi Bullion. The case of the respondents is that the applicant had passed ITC to the tune of ₹ 2,54,61,612/- to M/s. Gajmukhi Bullion. The information was received from Belgavi CGST and Cx. Commissionerate Mumbai that M/s. Gajmukhi Bullion being receiver of ITC to the tune of ₹ 15,22,02,368/- from one non-existence tax payer M/s. Karnataka Jewellers. The case of the respondents is that the applicant had fraudulently passed ITC to the tune of ₹ 2,54,61,612/- to M/s. Gajmukhi Bullion which is non-existent firm without actual receipt of goods and also availed the ITC. There is no reason to believe that the applicant is involved in availing ITC. There was no genuine transaction as claimed by the applicant. There was verification of supplier as per the GSTR-2A and it was revealed that M/s. Gajmukhi Bullion, Mumbai had availed ineligible ITC facilities from those companies. The investigation also revealed that 11 entities are non-existent. The total ITC availed by the suppliers was amount of ₹ 40.11 Crores approximately. The contention of the applicant that the statement was retracted and there is no corroborative material on record to support the claim of respondents. There sufficient material to deny pre-arrest bail to applicant. According to respondents during the statement recorded on 12th July, 2021 under Section 70 of CGST Act, the applicant has stated that statements dated 31st May, 2021, 16th June, 2021 and 21st June, 2021 have been correctly recorded. There is no retraction of statement dated 25th June, 2021. As per GSTR-2A of applicant the amount of ITC availed by applicant in respect to three firms is total taxable value in ₹ 990.17 Crores. The custodial interrogation of applicant is necessary. The applicant have not made out case for granting relief under Section 438 of Cr.P.C. - bail application dismissed.
-
2021 (11) TMI 642
Seeking grant of anticipatory bail - irregular availment of input tax credit - fictitious/dummy/non genuine firms - revocation of cancellation of GST registration - HELD THAT:- There is sufficient evidence showing involvement of applicants. Their custodial interrogation is necessary. The decisions relied upon by the advocate for applicants are not applicable to the applicants. The statement of Alpa Mehta indicate that accounts were opened in her name and in the name of her son by the applicants. They have obtained their personal documents. Three firms were registered using the name of Smt.Mehta. 15 firms suspected to be non genuine were traced. All the 15 firms were registered by using mobile number or e-mail IDs of applicant or his father Paresh Mawani. The statement of C.A Chetan Tak states that applicants have instructed him and his staff over phone for GST related work of 8 out of 15 firms. There were transactions of crores of rupees in the bank account of Unique Pharma Chem and other firms. The amount has been withdrawn. The applicants from their personal e-mail ID have made correspondence with CGST officers and other tax payers in relation to GST query of one of dummy firms. Both the applicants have floated 17 dummy on-genuine firms wherein fake invoices valued more than ₹ 300 crores approximately involving more than ₹ 1,500 crores of GST were involved. The applicants Paresh Mawani has accepted that he is managing the business activies and maintaining four firms wherein two are dummy proprietorship firms. No case for grant of anticipatory bail is made out - bail application dismissed.
-
2021 (11) TMI 641
Seeking unconditional withdrawal of this application - grant of anticipatory bail - irregular availment of Input Tax Credit - HELD THAT:- The letter dated 13/08/2021 sent by GST Authorities to the co-accused has nothing to do with the present applicant. In any case, the particular letter relied on by Shri Kadam dated 13/08/2021 is issued by the Office of the Commissioner of Central GST, Belapur to M/s.Bansal Traders. In the letter it is specifically mentioned that no comments could be offered on whether goods have been supplied or otherwise. In any case, if the co accused Bansal has or has not claimed benefit of Input Tax Credit; it is strictly business of co-accused Bansal. The present applicant, in any case, has nothing to do with such filing of form, by co-accused. There are no change in circumstances in favour of the present applicant. On the earlier occasion, responsible statement was made by learned counsel for the applicant for withdrawal of the application after the matter was fully argued and after the material against the applicant was examined. Earlier the application was withdrawn unconditionally - application rejected.
-
2021 (11) TMI 589
Seeking grant of pre-arrest bail - input tax credit - application moved on the ground that the Applicant had not claimed Input Tax Credit and a letter dated 1st September, 2020 issued by the office of Commissioner (GST) was issued mistakenly - HELD THAT:- In the course of investigation, Sarfaraz had produced two delivery challans, admitting delivery of clove bags by the Complainant. These two challans bears signature of Sarfaraz. There are no reason to disbelieve these two challans. It shows that Complainant had delivered cloves to the Sarfaraz and, thereafter, raised invoices bearing Nos.106 and 107 and filed GSTR-1. Whether goods delivered to Sarfaraz, were at the instance of Applicant? - HELD THAT:- It is surprising that in the subsequent communication dated 13th August, 2021, the GST Authority opined that M/s. Bansal Traders has not availed ITC against these Invoices during the period March 2020 to October 2020 as was evident from GSTR 3B return filed by M/s. Bansal Traders and GSTR-9 Annual Return filed on 5th February, 2021. If at all, GSTR 3B and GSTR 9 was filed on 5th February, 2021 how and under which circumstances the CGST Authority had certified in their first letter addressed to Investigating Officer that M/s. Bansal Traders has availed Input Tax Credit of CGST and SGST against Invoice Nos. 106 and 107. Although the concerned Officer (GST) was requested to explain the anomaly, he could not explained it and satisfy the Court s query. Thus, subsequent communication dated 13th August, 2021 addressed directly to Applicant is ignored. The evidence collected in the course of investigation, prima facie, shows Complainant delivered the goods to Sarfaraz at the instance of the Applicant and after delivery, he denied Complainant s claim and refused to pay him. Facts of the case constitute offence of cheating and, therefore, application deserves no consideration - Application dismissed.
-
Income Tax
-
2021 (11) TMI 640
Deduction u/s 80IB - Whether assessee has not built the housing project ? - joint development agreement - HELD THAT:- As the assessee has actively participated in completing the project and was not merely a land owner. The Karnataka High Court in its order in CIT Vs. M/s Shravanee Construction [ 2012 (7) TMI 88 - KARNATAKA HIGH COURT ] while dealing with the similar circumstances, has held that the assessee is entitled for deduction under Section 80IB.
-
2021 (11) TMI 639
Deduction u/s 10A - whether the appellant assessee could make a claim for deduction other than by filing a revised return? - HELD THAT:- We are of the view that acceptance of the case of assessee u/s 10 A by the CIT(Appeals), without there being a revised return is illegal and untenable. The expression of the Standing Counsel in the judgment GOETZE (INDIA) LIMITED VERSUS COMMISSIONER OF INCOME-TAX [ 2006 (3) TMI 75 - SUPREME COURT] is clear to the point that without a revised return by the Assessee the claims cannot be modified. Hence ground interference against the order under appeal is made out. The questions of law are answered in favour of Revenue and against the Assessee.
-
2021 (11) TMI 638
Income from the nature of interest received by the assessee in DRDO/ISRO accounts (for short FD A/cs ) - taxability of interest on deposits out of funds provided by the DRDO/ISRO, both Government of India Departments, for specific projects - case of the assessee on the interest earned from FD A/cs as non-computable income - assessee is a 100% subsidiary of BrahMos Aerospace Thiruvananthapuram Limited (BATL), and Indo- Russia Joint Venture Company in which DRDO under the Ministry of Defence, Government of India holds 50.50% shares and NPO Mashinostroyenia a State Enterprise of Russian Federation holding 49.50% - Whether Appellate Tribunal is right in holding that the interest received from banks on deposits of surplus funds received by the Appellant from DRDO/ISRO, both Government of India Departments, for setting up specific projects on their behalf and returned to the DRDONSRO is to be assessed in the hands of the Appellant? HELD THAT:- In the case on hand, there is no deflection, for, right through the funds transferred belong to DRDO/ISRO, and, as a corollary, interest earned belongs to DRDO/ISRO. The Fixed Deposits are opened in the name of assessee, the Banks are correct in effecting TDS and issuing TDS certificate to the assessee. The assessee once establishing no tax liability on this component, the TDS is referred to be made over to DRDO/ISRO. In the armchair of revenue, the above aspects sound atypical to taxation. The Government Departments, since are not under obligation to pay income tax, the funds merely because are in the hands of the assessee and earn interest, the reasoning whichever way it is stated is not convincing to tax the interest income in assessee s return and the Revenue looked at the transactions from the kaleidoscope of the letter of Income Tax Department but without appreciating the spirit of documents which have bearing on the adjudication of the issue. It is appropriate to observe that an assessee is under obligation to pay tax on its real income or income derived from one source or the other by the assessee, but not on every receipt recognized in the books of the assessee. The circumstances in Vizhinjam International Seaport [ 2016 (10) TMI 349 - ITAT COCHIN ] are similar to the case on hand and there is inconsistency in approach by the Tribunal in the findings recorded in similar circumstances. The deliberation and the resultant view we are taking in this judgment are peculiar and particular to the fact situation of the case on hand. The computability of interest-income or any other source of income is specific to the particular case dealt with by the Court/Tribunal/Revenue. In the instant case, the objection of Revenue is not that the funds are parked by a true owner liable to tax, but parked with the assessee and thereby the obligation of tax is avoided through such an understanding. The burden in such a claim is very heavy on the assessee to establish that the income is non-computable income of assessee. Reverting to case on hand, the assessee, DRDO/ISRO are either Government Departments or Government Companies. The burden is discharged by the assessee to not go by recognition of entries in books of account, but appreciate all the circumstances while treating whether the interest is computable or non-computable income of the assessee. Hence, in the circumstances of the case, the interest income for the Assessment Year 2009-10 is non-computable income of assessee. The contrary findings recorded by the orders under appeal are illegal and unavailable. Hence, liable to be set aside and is set aside accordingly. Decided in favour of assessee.
-
2021 (11) TMI 637
Validity of appointing Special Audit under section 142(2A) pending assessment proceedings and consequently, direction to complete the scrutiny assessment under Section 143(3) for the Assessment Year 2009-10 based on the regular audit report filed by the petitioner - HELD THAT:- In the present case, at the time of issuing proceedings dated 09.12.2011, the assessing officer had not formed an opinion however, he had some reasons to appoint an auditor in the case of the petitioner. Therefore, this Court is of an opinion that the very contention that the respondent has pre-determined the issue while issuing the order dated 09.12.2011, is doubtful. The assessing officer at the time of issuance of proceedings dated 09.12.2011 had not obtained the prior approval as at that point of time, he has not received the objections of the petitioner/assessee. Only after receiving the objections from the petitioner, on 15.12.2011, the assessing officer formed an opinion that the case of the petitioner is a fit case for appointment of an auditor by invoking Section 142(2A) of the Income Tax Act and accordingly, obtained the prior permission from the Commissioner of Income Tax and disposed of the objection in proceedings dated 16.12.2011. In the present case, the proceedings dated 09.12.2011 was treated as a show cause notice for all purposes both by the Assessing Officer and by the Assessee/petitioner and the petitioner submitted his objections in detail on 15.12.2011 and thereafter, the approval from the Commissioner of Income Tax was obtained and the objections were disposed of on 16.12.2011. The further objections raised on 23.12.2011, were also disposed of by the Assessing Officer on 26.12.2011. This being the admitted facts between the parties, there is no reason to disbelieve the proceedings dated 09.12.2011, though it was not aptly worded, as rightly stated by the learned Senior counsel appearing on behalf of the respondents. In respect of the impugned order, the petitioner is bound to cooperate for the earlier completion of the Special Audit, enabling the authority to proceed in accordance with law. Accordingly, writ petition stands dismissed.
-
2021 (11) TMI 636
Correct head of income - Lease rent received - to be treated as business income or as income from other sources - Assessee was declared as a sick company under the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA). Thereafter, a scheme for rehabilitation and revival was prepared, which obtained the approval of the Board for Industrial and Financial Reconstruction (BIFR) on 17.04.1995. The scheme provided for an arrangement between M/s.Apollo Tyres Ltd.[ATL] and the assessee - HELD THAT:- We find that the assessee had never been an active participant of ATL. Though the revival was contemplated within a limited span of time, that did not happen, even though the net worth turned positive. There was no attempt to exploit the commercial assets of the company and instead the assessee merely renewed rental arrangement and received rent as a passive receipt. Therefore, we answer the first question in favour of the revenue and hold that for the assessment year 2004-05, the rental income received by the assessee from ATL ought to be treated as income under the head income from other sources .
-
2021 (11) TMI 635
MAT Computation of book profit u/s 115JB - Whether deduction u/s 80HHC is to be computed as per MAT provisions and not as per the normal provisions of the Income Tax Act, 1961? - HELD THAT:- Substantial question Nos.1 and 2 are covered in favour of the assessee by the reported judgments of the Apex Court in Ajanta Pharma Ltd. [ 2010 (9) TMI 8 - SUPREME COURT ] - Hence the questions are answered by following the principle laid down in Ajanta Pharma in favour of the assessee and against the revenue. Disputed central excise demand raised against the assessee - denial of writing back benefit to the assessee - Recompute the 'book profit' for the purpose of levy of tax u/s 115JB by reducing the entire provision written back from the net profit in terms of clause (i) of the Explanation in Section 115JB - HELD THAT:- The argument that the assessee gets double advantage by allowing it to write back the provision now is equally incorrect for the Tribunal has rightly found that proper working is not reflected in the respective assessment orders or the record cannot lead to the conclusion that AO has not considered the applicability of special provision as well. The assessment order, in our view, has the presumption of having been made in accordance with the requirements of law and obligations fastened on the A.O. It cannot now be gain said that the AO failed to discharge the statutory obligation while computing the income of assessee for the assessment years in which the provision towards disputed excise duty was made by the assessee. The first and foremost objection of revenue on actual verification of provision made in respective assessment years is that the Tribunal presumed and pre-supposed that the contemperaneous effect would have been given in the books of accounts without material on record. The argument is contrary to the orders made by the AO in this behalf. The contention at the first blush though appears to be persuasive. With the help and assistance of learned counsel appearing for revenue and assessee, we have verified the assessment orders for the years 1997-98; 1998-99 and 1999-2000 and the assessment order in which the present appeal arises and we are of the view that the primary and first appellate authority have, as matter of fact, presumed a circumstance against assessee which is not in the control of assessee. We appreciate and accept the conclusion recorded by the Tribunal by taking note of the fact that the assessee was subjected to the slab rate of 30% for the assessment years 1997-1998 and 1998-1999 and computed the tax payable thereon under normal provisions. The denial of writing back benefit to the assessee in these assessment years are illegal and the finding recorded by the Tribunal is valid and correct in the circumstances of this case. Hence the reframed question is answered in favour of the assessee and against the revenue.
-
2021 (11) TMI 634
Disallowance u/s 36(1)(va) and 43B - delayed employees contribution paid - scope of amendment to section 36(1)(va) and 43B - HELD THAT:- As the employees contribution paid before the due date of filing of the return u/s 139(1) of the I.T.Act is to be allowed as deduction u/s 43B - Therefore, the only issue to be decided in the instant case is whether the amendment to section 36(1)(va) and 43B by the Finance Act, 2021 is prospective or not. Since as categorically held that the amendment is prospective and not retrospective in operation, the learned Standing Counsel s plea does not have any merit. In the instant case, the assessment year being 2018- 2019, the amendment by Finance Act, 2021 to section 36(1)(va) and 43B of the I.T.Act does not have application. Therefore, the A.O. is directed to delete the disallowance of ₹ 3,23,886. - Decided in favour of assessee.
-
2021 (11) TMI 633
Deduction u/s 80IC - Proof of substantial expansion - Whether the assessee is entitled to claim 100% deduction u/s. 80IC on the profits from the eligible undertaking during the period relevant to the assessment year under appeal ? - HELD THAT:- Hon'ble Supreme Court of India in M/S. AARHAM SOFTRONICS [ 2019 (2) TMI 1285 - SUPREME COURT] an unambiguous manner has held that the substantial expansion has been made within the meaning of section 80IC (8)(ix) of the Act after initial assessment year, the assessee is further entitled to claim deduction @ 100% of profits from eligible undertaking under section 80IC of the Act. The aforesaid ratio squarely applies to the facts, of the instant case. Hence, we hold that the assessee is eligible to claim deduction under section 80IC @ 100% after 'substantial expansion' during the assessment year under appeal. Appeal of the assessee is allowed.
-
2021 (11) TMI 632
Exemption u/s 11 - rejecting the application u/s 12 A - whether appellant society doing charitable activities and fulfill the conditions laid down u/s 2 (15) of the act? - construction has been started of the Satsang Bhavan with corpus donations - assessee submitted that it does not own any land and building but has building under construction - HELD THAT:- Before the learned Commissioner assessee also produced the bank statement of the assessee with Oriental Bank of commerce from 8 May 2013 to 31/3/2017. It further provided the register of outdoor patients before him. From the above activities it is apparent that assessee is carrying on charitable activities as envisaged u/s 2 (15) of the act. Coming to the objections of the learned CIT E we find that assessee has given a detailed explanation with respect to the land and building which is owned by the trustee and on which satsang Bhavan is constructed. Further the contractor s account was also produced which shows that the initially some amount was given for the construction activity however the contractor returned the sum and later on the trust carried on the construction activities by looking at alternatives. The amount was received from the contractor through account payee cheques and same were also given earlier to him through account payee cheques. Therefore we do not find any merit in the finding of the learned CIT E that the transaction with Mr Surinder Sukhija prevents assessee from getting registration u/s 12 AA The justification given by the assessee for holding the car and using it for the activities of the trust is also justifies the use of claiming of the depreciation as well as payment of insurance. In fact the level of activities being carried out by the trust justifies the use of car. Further the learned CIT E held that the credits in bank account as well as the receipt as per receipt and payment account for financial year 2016 17 does not match, however, there is no difference between the receipts which are required to be shown in the receipt and payment account. Assessee has also shown the bank account to the learned CIT E, who could not find out or give any instances where the receipts are not accounted in the receipt and payment account but are credited in the bank account. The carrying on of the activities of satsang along with Jan Sewa Samiti has also been properly explained by the assessee that it carries on these activities along with these other organizations. Further the government of Haryana has give grant to the assessee trust for carrying on its medical activities for purchasing an ambulance. Appellant trust is also showing considerable amount of fees from the patient s and also applies substantial amount for medical relief , relief to poverty, gaushala and religious activities. All these activities falls under the gamut of provisions of Section 2 (15) of the act. The learned CIT E without any evidence and on irrelevant considerations has denied the registration to the trust u/s 12 AA. Object of Section 12AA of the Act, is to examine the genuineness of the objects of the Trust, but not the income of the Trust whether applied for charitable or religious purposes. Off course trust needs to show that the activities are genuine I and in accordance with the objects. This is demonstrated by the applicant appellant exhaustively . The stage for application of income is yet to arrive i.e. when such Trust or Institution files its return. Therefore, we find present case arising out of the question of registration of the Trust and not of assessment. All these factual aspects can also be verified during the course of assessment proceedings when the assessee claims benefit of Section 11 13 of the income tax act after registration. In view of the above facts, we direct the learned CIT E to grant registration to the assessee u/s 12 AA of the act, as it is carrying on charitable activities as envisaged u/s 2 (15) of the act and none of the activities carried out by the assessee are not genuine, in fact they are in accordance with the trust deed and in consonance with the provisions of The Income Tax Act. - Decided in favour of assessee.
-
2021 (11) TMI 631
Penalty u/s 271(1)(c) - Mandation of specification of charge - HELD THAT:- Merely because the claim preferred by the assessee was not acceptable to the learned Assessing Officer, the assessee cannot be visited with the proceedings under section 271(1)(c) of the Act, unless and until the twin requirements under section 271(1)(c) of the Act are satisfied. We therefore, while accepting the plea of the assessee hold that the penalty cannot be sustained. We accordingly direct the assessing officer to delete the same. Non specification of charge - Neither in the assessment order nor the notice issued under section 274 of the Act, there is any reference to either the concealment of income or the furnishing of inaccurate particulars thereof. See MANJUNATHA COTTON AND GINNING FACTORY, MANJUNATH GINNING AND PRESSING, VEERABHADRAPPA SANGAPPA AND CO., V.S. LAD AND SONS, G.M. EXPORT [ 2013 (7) TMI 620 - KARNATAKA HIGH COURT] It is clear that for the AO to assume jurisdiction u/s 271(1)(c), proper notice is necessary and the defect in notice u/s 274 of the Act vitiates the assumption of jurisdiction by the learned Assessing Officer to levy any penalty. In this case, facts stated supra, clearly establish that the notice issued under section 274 read with 271 of the Act is defective and, therefore, we find it difficult to hold that the learned AO rightly assumed jurisdiction to pass the order levying the penalty. Viewing from any angle, we do not find any justification to sustain the penalty, and as a consequence thereof, we direct the learned Assessing Officer to delete the penalty in question. - Decided in favour of assessee.
-
2021 (11) TMI 630
Revision u/s. 263 by CIT - assessment order passed u/s. 143(3) r.w.s. 153C - proof of no enquiry or lack of inquiry - HELD THAT:- We find the there is no dispute that the AO while passing the assessment order accepted the claims of the assessee in non-speaking order. It is not the case of ld. PCIT that the AO is not allowed to accepted the return of income in non-speaking order. AO while passing the assessment order recorded that the Authorized representative of the assessee vide various order sheet entries have furnished the relevant details and information called for. After affording ample and adequate opportunities of being heard to the assessee, assessment proceedings have been completed on the basis of the submissions and details collected and in consequence upon the conclusion of proceeding and hearing of evidences, assessment is made by this order . A perusal of show cause notice under section 263 dated 10.03.2021, clearly demonstrate that the ld. PCIT identified all the issues which were the subject matter of the notice under section 142(1) and the questionnaire attached thereto, were issued by the assessing officer. The ld. PCIT in his show cause notice (SCN) under section 263 has accepted that the AO made detailed questionnaire dated 03.12.2018. And on perusal record and details/evidences available on record, the PCIT noted that AO has not made further inquiry. PCIT has not made a case that there was no enquiry or lack of inquiry rather recorded that the AO called detailed inquiry . PCIT has not specified that what kind of further inquiry was required, when the income disclosed in IDS was duly accepted by higher authority. We find that declaration made in IDS-16, was never questioned by Board or other superior authority of the revenue. In our view it is the discretion of the AO, having regards to the facts of the case and the material placed before him in response to the various show cause notices, to take a conscious decision if any further inquiry is required or not. Furthermore, we find that the assessment order was duly approved by the ld. JCIT. There in not finding of ld. PCIT that the approval granted by the JCIT is not proper or non-application of proper procedure and practice of the revenue. In the case in hand the AO has made required inquiry and came to a possible conclusion in allowing the claims to the assessee. We also find that on the issues of validity of discloser in IDS, the ld. PCIT has not specified that while making declaration, the assessee made any misrepresentation of any facts. Once the IDS in all cases were accepted by ld. PCIT, the AO or the Range head no authority to relook or power to revoke or to examine its validity. PCIT while directing the AO has not himself revoked the IDS nor directed to refund the payment of tax to the assessee - IDS the assessee has paid more tax to the revenue then the rate of normal tax, so there is no loss of revenue. AO while passing the assessment order has made inquiry and took reasonable, plausible and legally sustainable view. The Hon'ble Delhi High Court in CIT Vs. Kelvinator of India Ltd. . [ 2002 (4) TMI 37 - DELHI HIGH COURT] held that if the AO has adopted one of the course permissible in law, which resulted in loss of revenue or where two view is possible and the AO has taken one view with which the CIT does not agree, it cannot be treated as erroneous order prejudicial to the interest of revenue unless view taken by the AO is not sustainable in law. At the cost of repetition, we may note that the ld. PCIT neither in his show cause notice nor in ultimate/final order has held that the order passed by the AO is unsustainable in law. - Decided in favour of assessee.
-
2021 (11) TMI 629
Revision u/s 263 by CIT - Disallowance u/s 14A - HELD THAT:- Hon'ble Delhi High Court in the case of M/s. Holcim India P. Ltd [ 2014 (9) TMI 434 - DELHI HIGH COURT] held that no disallowance can be made u/s.14A if there is no exempt income in the relevant year. PCIT has not disputed the fact that the assessee has not earned any exempt income. Hence, in view of the judicial pronouncement, we hereby hold that the order the AO is not prejudicial to the interest of the revenue. Hence, we hereby hold that the order passed by the ld. PCIT u/s. 263 is legally not sustainable. Decided in favour of assessee.
-
2021 (11) TMI 628
Valuation of investments held as stock in trade - whether the loss of in account of valuation of stock can indeed be allowed as a deduction in computation of business income? - HELD THAT:- Right from Hon'ble Supreme Court's landmark judgment in the case of Chainrup Sampatram [ 1953 (10) TMI 2 - SUPREME COURT ] the law is very well settled, duly recognizing the principle of conservatism embedded in the accountancy practices, that if there is any anticipated loss, whether crystallized or not the same is to be allowed as the deduction while anticipated profits are not be taken in to account for this purpose. Whether the loss is crystallized or not as long as it can be reasonably anticipated, on the basis of the situation as it prevails at the year end, which is what is reflected by the fall in value of stock indicates, the same is taken in account for computation of business loss. In the case of United Commercial Bank [ 1999 (9) TMI 4 - SUPREME COURT ] Hon'ble Supreme Court has taken notes of this foundational legal position and held that loss on all in value of investments which are held as stock and trade by the bank constitute and admissible deduction. The the action of the Assessing Officer, which has been upheld by the learned CIT(A) in a very mechanical manner without application of mind, cannot meet our judicial approval. We reverse the stand of the authorities below, and direct the Assessing Officer to delete the impugned disallowance - Decided in favour of assessee.
-
2021 (11) TMI 627
Classification of capital gain - LTCG or STCG - Non consider the cost of acquisition/indexed cost of acquisition of the property in question while computing the capital gain - HELD THAT:- Admittedly, there can be no second thought on the fact that the assessee had consistently adopted a lackadaisical approach and had neither complied with the directions of the AO nor appeared before the CIT(A). The conduct of the assessee was no better, and as observed by us hereinabove he had failed to participate in the course of the appellate proceedings before us. Be that as it may, we find substance in the claim of the assessee that as the CIT(A) had not only declined his request for adjournment, but had also not considered the submissions which were filed by him along with Form No. 35 on the e-portal of the Department, therefore, he was not afforded sufficient opportunity of being heard. We find that it is the claim of the assessee that the CIT(A) had not only wrongly classified the sale transaction as STCG, as against the LTCG, but had also erred in not directing the AO to consider the cost of acquisition/indexed cost of acquisition of the property in question while computing the capital gain. In the backdrop of the aforesaid facts, we though deprecate the conduct of the assessee who had throughout been non-cooperative, but cannot remain oblivious of the fact that there are certain infirmities arising from the order of the CIT(A) as regards the mode and manner of quantification of the income resulting from the sale of the property in question. We, thus, in all fairness are of the considered view that the matter requires to be re-visited by the AO, who is directed to re-adjudicate the issue after affording an opportunity of being heard to the assessee.AO shall in the course of the de novo assessment proceedings allow an opportunity of being heard to the assessee who shall remain at liberty to substantiate his claim on the basis of supporting documentary evidence/material - Appeal filed by the assessee is allowed for statistical purposes.
-
2021 (11) TMI 626
Validity of reopening of assessment u/s 147 - whether corrigendum passed by the assessing officer is bad in law and beyond period of limitation? - HELD THAT:- After considering the corrigendum passed by the assessing officer we notice that there is no material change as far as conclusion of the assessment order. AR relied in the case of Lionbridge Technologies Ltd [ 2018 (12) TMI 764 - BOMBAY HIGH COURT ] to submit that corrigendum issued beyond time to pass the assessment order is bad in law. We notice that in the above case the issue was the final assessment order was passed without issuing draft assessment order. Subsequently the corrigendum was passed to rectify the above mistake. In the above case, the issue of jurisdiction is involved and the Courts have held that in the case of issues involving jurisdiction, they interpreted the law literally and strictly. Whereas in the given case, the assessing officer has merely rectified the apparent mistake in his order which has no impact on the conclusion of the assessment order. Therefore, we do not see any reason to entertain the claim of the assessee. Accordingly, these grounds are dismissed. Mistake in the reasons recorded to reopen the assessment - We notice that the reasons were communicated to the assessee and the assessee also understood and participated in the assessment proceedings. Once again the assessing officer has made the typographical error in the concluding para of the notice. It does not change any material outcome, as long as it communicates the reasons for reopening the assessment, mere typographical error without having any material impact on the assessment, these can be considered as simple mistakes and rectifiable. Addition merely on the basis of statement of third parties and rejecting the appellant's request to provide opportunity of cross examination of said parties - HELD THAT:- It is requirement of the principles of natural justice to give a proper opportunity to the assessee for cross examination before making any addition or completing the assessment. In the given case we notice that assessee was consistently requesting the assessing officer for the opportunity. But the assessing officer only insisted upon the assessee to bring the parties before him. Assessee has expressed inability to bring the parties before the assessing officer considering the fact that the assessee is too small to make such request to the officers of SHPL. It is fact on record the contentions of the assessee is right that she cannot compel the SHPL officials to appear before the AO. From the record it is clear that assessing officer has made the addition without giving a proper opportunity for cross examination. The Courts have held that completing the proceedings without giving proper opportunity for cross examination to the other party is against the principles of natural justice and accordingly it is bad in law. In turn, the AO can issue show cause notice to SHPL officials and make them appear. In that process, he could have given opportunity to the assessee for cross-examination. We are in agreement with the submissions of the Ld. AR and by relying on the ratios of Hon ble Supreme Court in the case of Andaman Timber Industries [ 2015 (10) TMI 442 - SUPREME COURT ] we are inclined to conclude that the assessment order passed by the assessing officer is bad in law.
-
2021 (11) TMI 625
Unsecured loan taken - Addition u/s. 68 - HELD THAT:- AO as made the addition of unsecured loan obtained by the assessee on the basis of general observation that unsecured loan was nothing but assessee's own fund which were circulated. The finding of the AO was not supported with the relevant material and evidences, AO had also failed to controvert the supporting documents and relevant materials and the copies of bank statement of the lender and the assessee demonstrating that transaction of loan were routed through bank account and same were repaid during the year under consideration. AO has neither made any investigation and verification from the lender nor brought any relevant material on record to prove that the unsecured loan was not genuine. Therefore, we are not inclined with the decision of ld. CIT(A). Accordingly, the appeal of the assessee on this ground is allowed. Disallowance on interest u/s. 36(1)(iii) - AO has compared the payment of interest @ 12%/15% on the unsecured loan obtained by the assessee with the interest amount received by the assessee @ 8% on FDR made with the HDFC bank - HELD THAT:- Earning of interest on surplus fund maintained in FDR cannot be compared with the unsecured loan obtained by the assessee because both are of different nature as the interest on fixed deposit is specified by the bank in the form of automatic switched off fixed deposit account whenever surplus fund was available in current year, the same was transferred to fix deposit account otherwise the current account did not fetch any interest. On the other hand, the definite amount of interest paid on unsecured loan used to be on higher side compared to the interest charged on secured loan, therefore, we do not find any justification in the decision of ld. CIT(A) in sustaining the disallowance of interest payment made by the Assessing Officer. Therefore, this ground of appeal of the assessee is also allowed.
-
Customs
-
2021 (11) TMI 624
Seeking provisional release of detained goods - extension of the period for issuance of show-cause notice under Section 110 (2) (as amended) of the Customs Act, 1962 - Section 110A of the Customs Act, 1962 - HELD THAT:- The goods under detention/seizure are neither prohibited items nor restricted items and hence the same are not subjected to any statutory permission - the appellants are directed to execute the bond backed by the Bank Guarantee. On execution of bond and bank guarantee, the Adjudicating Authority shall grant the provisional release of the consignment. It is also directed that the quantum of bond should be sufficient enough to cover the duty, redemption fine and penalty likely to be imposed during the adjudication taking into consideration the various circulars issued by the CBEC - the Ld. Principal Commissioner (Prev.) is directed to consider the request made on behalf of the appellants for provisional release of the goods. Appeal disposed off.
-
2021 (11) TMI 623
Valuation of imported goods - undervaluation - Ball Valves made of metal like Zinc and Brass - rejection of declared value - enhancement of asessable value - Revenue has not adduced any evidence that the appellant had made any extra payment over and above the invoice value - Confiscation - redemption fine - penalty - HELD THAT:- The appellant imported certain consignments of Ball Valves and Bibcock through Kolkata Port under three bills of entry dated 14.05.2009, 29.06.2009 and 28.07.2009. The said bills of entry were assessed by the proper Officer of Customs by value edition over the declared value in consonance with a departmental instruction. The goods so imported were cleared for home consumption. The present proceeding was initiated against the appellant on the allegation that the goods imported by him had been undervalued. It is on record that the bills of entry were assessed by the Proper Officer and the assessable value was determined by him and it was not challenged either by the appellant or by the department. In the course of enquiry, a proforma invoice was recovered showing a different price from that as shown in the invoice submitted at the time of import. However, it is observed that the proforma invoice is not issued in the name of the appellant - The Revenue has not produced any document to prove that there was any extra payment made by the appellant towards purchase of the said goods. The confiscation of the goods and imposition of penalty are consequential to the alleged under-valuation of the imported goods by the appellant. Since there are no sufficient grounds as required for enhancement of assessable value, imposition of redemption fine in lieu of confiscation under section 125 of the Customs Act, 1962 and imposition of penalty under section 114A on M/s.Trading Syndicate and under section 114AA on Shri Mohinder Goel, proprietor of M/s.Trading Syndicate is not sustainable. Appeal allowed - decided in favor of appellant.
-
2021 (11) TMI 622
Jurisdiction - power of ADG, DRI toissue SCN - proper officer to issue SCN or not - Section 28(4) of Customs Act - demand of duty on the current shipping Bill confirmed in the impugned order based on the SCN issued by the DRI sustainable or not - confiscation of goods in the current shipping bill - imposition of fines - penalties with respect to past shipping bills based on the SCN issued by the DRI sustainable or not? Assessment and preventive functions of the customs Department - HELD THAT:- Any tax department, including Customs has two broad functions- the first is to assess the tax/duty paid where someone has filed a return or, in case of Customs, filed a Bill of Entry for import or a Shipping Bill for export which is the assessment function. It is a quasi-judicial function and assessment orders can be appealed against - A panchnama drawn during the investigation, for instance, is not an appealable document. If the investigations lead to discovery of evasion of duty or prohibitions and an SCN is issued, thereafter, it moves to the realm of quasi-judicial functions. Assessment of duty and processing of export goods - HELD THAT:- The process of making an entry under section 50 and self assessment of duty under section 17(1) happen simultaneously because the data required for assessing duty such as the nature of the goods, their classification under the Customs Tariff, rate of duty, exemption notification, quantity and value are in the Shipping Bill and once these data is fed into the Customs EDI system both self assessment of duty under Section 17(1) and filing of Shipping Bill under Section 50 are complete and the arithmetical process of calculating the duty is done by the system itself - the process of permitting clearance of export goods under Section 51 is commonly referred to as issuing of Let Export Order [ LEO ]. The proper officer who issues the LEO is different from the assessing officer and is usually posted in the Customs shed where he checks the documents and if required goods and issues the LEO. Assessments can also be appealed against by the Revenue. However, if duty is not levied, not paid, short levied, short paid or erroneously refunded, an SCN can be issued under section 28 by the proper officer demanding the duty - assessment is a quasi-judicial function and the assessed Bill of Entry/Shipping Bill is an appealable order. Once the assessment is completed, it cannot be modified to grant refund under section 27; it has to be appealed against first. However, a special power to review, reopen and reassess has been provided to the proper officer, i.e., the officer who has done the assessment in the first place or his successor in office under Section 28. Officers of DRI have been held to be NOT the proper officers to issue a notice under Section 28 both in Sayed Ali and in Canon India. In the Customs Act, the Shipping Bill has to be filed with the proper officer under Section 50 which can be re-assessed under Section 17 by the proper officer and finally the clearance of goods under Section 51 is also to be given by the proper officer . Current shipping bill - HELD THAT:- With respect to the current shipping bill, it was assessed provisionally after provisional release of the goods. However, the finalization of the Shipping Bill by reclassifying the goods in the impugned order is not proposed in the SCN and the order has gone beyond the scope of the SCN and hence it needs to be set aside. Consequently, the confiscation of the goods and imposition of penalties based on such finalization of assessment must fail - As far as the past consignments are concerned, the SCN was issued by ADG, DRI under section 28 and he is not the proper officer to issue such as notice as per Canon India and hence the impugned order confirming such a demand needs to be set aside. The confiscation of goods and imposition of penalties, require a notice under Section 124 to be issued which need not be issued by the proper officer . Hence, it was within DRI s power to issue such an SCN. However, the basis for imposition of penalty is the confiscation of the goods under Section 113 on the ground that there were mis-declarations in the Shipping Bills which resulted from a determination under section 28 on the notice issued by DRI. As the goods were not available, the learned Commissioner has not ordered confiscation of the past goods - Penalties also cannot sustain once the reassessment of the exported goods under section 28 which forms the basis for the penalties fails. The demand of duty confirmed on the current shipping Bill confirmed in the impugned order is not sustainable as it was not proposed in the SCN and hence is beyond its scope - appeal allowed - decided in favor of appellant.
-
2021 (11) TMI 621
Jurisdiction - officers of Directorate of Revenue Intelligence (DRI) are competent officers to issue show cause notices, or not - seeking to give permission/No objection certificate to the Applicant to sell Aircraft Beechcraft King B300 (350) against appropriate surety/security - HELD THAT:- In the interest of justice, time should be given to Revenue to argue the matter on merits especially in the light of the submission that the matter is covered by the judgment of Hon ble Supreme Court in the case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [ 2021 (3) TMI 384 - SUPREME COURT] . In so far as aircraft is concerned, it has already been released provisionally to the applicant by the Revenue. In the impugned order it has been confiscated and allowed to be redeemed on payment of redemption fine of ₹ 7 crore. It is further ordered that the bank guarantee may be invoked to recover the redemption fine. Now, the applicant is prepared to redeem the aircraft on the same terms, that is, by invocation of the bank guarantee of ₹ 7 crore or payment of ₹ 7 crore towards redemption fine - the interest of Revenue will be adequately covered if this part of the redemption order is allowed pending the final decision. Once the goods are redeemed, they become the property of the applicant and thereafter it is free to sell the aircraft. The aircraft may be redeemed on payment of the redemption fine of ₹ 7 crore by the applicant either in cash or by invocation of the bank guarantee. Upon such redemption, the Deputy Commissioner of Customs (Aircraft G-II), Office of the Commissioner of Customs (Preventive), New Customs House, New Delhi shall issue a permission/no objection certificate to the applicant to sell their aircraft that has been seized as soon as it is redeemed - The matter may be listed for final hearing in the month of January 2022. Application disposed off.
-
2021 (11) TMI 620
Levy of anti-dumping duty - imports of All Fully Drawn or Fully Oriented Yarn/ Flat Yarn of Polyester - Notification dated 21.10.2015 earlier issued imposing anti-dumping duty has been rescinded - seeking issuance of a direction to the Central Government to issue a notification for imposition of anti-dumping duty, based on the recommendation made by the designated authority in the final findings dated 23.11.2020 - HELD THAT:- The issues raised in this appeal are issues which were considered by the Tribunal in JJUBILANT INGREVIA LIMITED VERSUS UNION OF INDIA, DESIGNATED AUTHORITY, DIRECTORATE GENERAL OF TRADE REMEDIES, GHW (VIETNAM) CO. LTD., M/S. GHW HOLDING COMPANY HONG KONG, SHENG LONG BIO-TEC INDIA PVT. LTD. AND UTTARA IMPEX PRIVATE LIMITED PUNE [ 2021 (11) TMI 200 - CESTAT NEW DELHI] . The decision taken by the Central Government not to impose anti-dumping duty, despite a recommendation having been made by the designated authority for an imposition of anti-dumping duty, was set aside by the Tribunal and the matter was remitted to the Central Government to take a fresh decision on the recommendation made by the designated authority. In the present case, the stand of the Central Government is also that it had decided not to accept the recommendation made by the designated authority. The decision said to have been taken by the Central Government not to impose anti-dumping duty, despite a recommendation having been made by the designated authority for imposing of anti-dumping duty, is set aside and the matter is remitted to the Central Government for taking a fresh decision on the recommendation made by the designated authority - Appeal allowed.
-
2021 (11) TMI 619
Levy of Anti-Dumping Duty - imports of Acrylic Fibre - Notification dated 01.06.2015 earlier issued imposing anti-dumping duty has been rescinded - seeking direction to the Central Government to issue a notification for imposition of anti-dumping duty, based on the recommendation made by the designated authority in the final findings dated 31.08.2020 - HELD THAT:- The issues raised in this appeal are issues which were considered by the Tribunal in JUBILANT INGREVIA LIMITED VERSUS UNION OF INDIA, DESIGNATED AUTHORITY, DIRECTORATE GENERAL OF TRADE REMEDIES, GHW (VIETNAM) CO. LTD., M/S. GHW HOLDING COMPANY HONG KONG, SHENG LONG BIO-TEC INDIA PVT. LTD. AND UTTARA IMPEX PRIVATE LIMITED PUNE [ 2021 (11) TMI 200 - CESTAT NEW DELHI] . The decision taken by the Central Government not to impose anti-dumping duty, despite a recommendation having been made by the designated authority for an imposition of anti-dumping duty, was set aside by the Tribunal and the matter was remitted to the Central Government to take a fresh decision on the recommendation made by the designated authority. In the present case, the stand of the Central Government is also that it had decided not to accept the recommendation made by the designated authority. The decision said to have been taken by the Central Government not to impose anti-dumping duty, despite a recommendation having been made by the designated authority for imposing of anti-dumping duty, is set aside and the matter is remitted to the Central Government for taking a fresh decision on the recommendation made by the designated authority - Appeal allowed by way of remand.
-
2021 (11) TMI 618
Levy of penalty u/s 112A on the courier service - Seizure of demonetised Indian currency - wrong declaration in relation to an Airway Bill due to which demonetised Indian Currency notes got couriered to India under the guise of being called as documents - section 82 of the Customs Act - HELD THAT:- From the facts of the case, it is apparent that the Bank had no role till the said courier was delivered to it by the FedEx courier. It was for the Department to show that the Bank had a knowledge about the declaration given on airway bill that the annexed parcel has demonetized Indian currency goods but has been declared as documents. But apparently there is no such evidence. The initial burden was on the department. Hence finding in sub paragraph 2 of paragraph 5 of the order under challenge is apparently a wrong finding. The same para rather has discussed the precise advise as was given by the appellant to the sender of the impugned courier asking him to send the demonetized currency notes in person during his visit to India or through authorised representative, he being stationed abroad - There is nothing on record to show or indicate that it was appellant who has wilfully or intentionally made the declaration. Infact admittedly, the declaration is not made by the appellant, the question of it to be their wilful and intentional act does not at all arise - This Tribunal in the case of UPS JETAIR EXPRESS PVT LTD VERSUS COMMISSIONER OF CUSTOMS AIRPORT, MUMBAI [ 2018 (6) TMI 345 - CESTAT MUMBAI] has held that mere handling in the course of professional engagement does not necessarily imply prior knowledge of liability of the goods to confiscation. That requires an independent and specific finding which is conspicuously absent in the impugned order. The findings given in the Order under challenge alleging the appellant to mis-declare are apparently wrong on the face of facts as well as documents - Appeal allowed.
-
Corporate Laws
-
2021 (11) TMI 617
Offence of cheating and dishonestly inducing delivery of property - principle of jurisdiction in civil law - HELD THAT:- All these petitions have been filed by the accused persons at the very initial stage i.e. after registration of FIR. It is clear case of the State that despite issuance of notices under Section 41 Cr.P.C. to the petitioners at their given addresses, they have failed to join the investigation. It is also not disputed that the petitioners have neither applied for anticipatory bail nor regular bail and have filed the present petitions under Section 482 Cr.P.C. for quashing of FIR and the Coordinate Bench, vide order dated 25.03.2021, directed that no coercive action be taken against the petitioners with regard to FIR in question, which, in fact, implies that blanket stay of arrest has been granted to the petitioners. The main argument on behalf of the petitioners is that the complainant has not come forward to seek specific performance of agreement(s) to sell, on the face of it, is liable to be rejected, for the reason that there is encumbrance on the properties, therefore, once the complainant came to know that the properties cannot be transferred in pursuance to agreements to sell, as there was charge/encumbrance over the same, it cannot be termed that the dispute is purely of civil nature. It is case of the complainant that the petitioners have concealed about status of the properties, which were to be transferred in pursuance to the agreements to sell, therefore, on the face of it, the criminal prosecution is maintainable, independent of the fact that some proceedings before the NCLT, New Delhi are pending. The petitioners could not dispute the fact that properties i.e. Votive Propbuild Pvt. Ltd., Hacienda Infosoftech Pvt. Ltd. and Challengerz Websolutions Pvt. Ltd., sought to be sold by way of agreements to sell are not clear, as even efforts were made to sell the same to another company namely Max Estates Pvt. Ltd. to raise the funds, therefore, it cannot be said that on the face of it, no offence is made out, to quash the FIR. Petition dismissed.
-
2021 (11) TMI 616
Rights Issue - Seeking to raise additional share capital to enable the company to discharge the loans borrowed from the lenders - allegation of Right Issue is for a mala fide purpose and is the modus operandi to siphon further funds from the first Respondent Company - status-quo of shareholding pattern - It is the main contention of the Appellant that the loans/borrowings raised are not genuine and that they are related party transactions - Section 62 (1) of the Companies Act, 2013 - HELD THAT:- The nature of relationship between the Corporate Lenders and the second Respondent has also not been explained or corroborated by any documentation and we observe that the said loans do not fall within the ambit of the definition of Related Party Transactions as envisaged under Section 188 of the Companies Act, 2013. Be that as it may, keeping in view the Ledger Accounts, the Balance Sheets, the Respondents have sufficiently substantiated their contention that the money received from the two Corporate Lenders was a genuine loan. The material on record evidences that there is a Status Quo Order passed by the III Additional Chief Judge, City Civil Court, Hyderabad in I.A. No.2371 of 2005 in OS No.328 of 2005, whereby and whereunder the City Civil Court restrained Company from alienating, transferring or encumbering the immovable property in any manner pending disposal of the Suit. The Company Law Board vide Order dated 14.07.2006 directed the Company to maintain Status Quo in regard to the immovable properties held in the name of the Company, until further Orders. The inter-corporate loans were genuine and observe that if the debt due is not paid, there was a possibility that the Lenders could have taken coercive action for the recovery of their dues, the prayer sought for by the Respondents seeking Additional Capital by going for Rights Issue, is justified. When there is a need for funds and there is a Status Quo Order restraining the Company from sale of any immovable property, the direction given by NCLT to allow the Respondent Company to raise Additional Capital by issuing Additional Shares for discharging the debt due to the Creditors is upheld. NCLT has noted in the concluding para that the person acquiring shares in pursuance of Rights Issue cannot exercise additional Voting Rights to the extent of shares accrued in the Rights Issue until further Orders or till disposal of the main Petition, whichever is earlier. Appeal dismissed.
-
Insolvency & Bankruptcy
-
2021 (11) TMI 615
Jurisdiction under Section 32A of the Insolvency and Bankruptcy Code, 2016 - seeking rejection to discharge Dewan Housing Finance Corporation Limited-Corporate Debtor, from the CBI Special Case - Whether Section 32(1)(a) of IBC lays down a direction that, Corporate Debtor, would be absolved of all criminal offences committed prior to commencement of CRIP, from the date of approval of Resolution Plan, although, appeals against Section 31 order of the IBC were pending before the NCLAT? - Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code. HELD THAT:- It may be stated that, the subsequent events were placed on record vide purshis dated 12th October, 2021 and thereafter intervenor had filed a reply Affidavit, dated 20th October, 2021 and dealt with subsequent events extensively. As such, it is not deemed appropriate to keep the subsequent events out of consideration and relegate the parties to the trial Court for reconsideration - subsequent events indisputably caused change in management and control of Corporate Debtor. The immunities under 32A of IBC, cannot be denied to Corporate Debtor - the petitioner-DHFL, stands discharged from the CBI Special Case pending before the CBI Cases Sessions Court, Mumbai. Whether successful resolution applicant was eligible to invoke Section 32A of IBC, when appeals against the order of the Adjudicating Authority, were pending before NCLAT? - HELD THAT:- Although Section 32 provides for appeal against an order approving the Resolution Plan, yet, mere filing of appeal would by itself not operate as a stay, until a specific prayer in this regard is made and orders thereon are passed, as held in the case of MADAN KUMAR SINGH (D) THR. LR. VERSUS DISTT. MAGISTRATE, SULTANPUR ORS [ 2009 (8) TMI 1140 - SUPREME COURT] . Infact, herein appeals were filed with a specific prayer to grant stay to the Section 31 order. However, the NCLAT by reasoned order, declined to stay the order. Thus, the application preferred by the successful resolution person, was not pre-matured. The point is answered accordingly. The application of Dewan Housing Finance Corporation Limited moved under Section 32A of the Insolvency and Bankruptcy Code, 2016 is granted - petition disposed off.
-
2021 (11) TMI 614
Declining to return original title documents to the petitioner - petitioner is liquidator of Corporate Debtor - HELD THAT:- It may be emphasized that, under the Insolvency and Bankruptcy Board of India (Liquidation Process), Regulation, 2016, the petitioner being liquidator , is under obligation to liquidate the Corporate Debtor within a period of one year from the liquidation commencement date. Therefore, the petitioner has to complete the liquidation process in a time-bound manner. Obviously, for selling the assets during the liquidation process, the buyers would insist for original title documents either for purpose of availing credit facilities for purchasing the assets or otherwise - It is therefore essential that the original title documents seized by the CBI and presently in the custody of the Special Court are required to be returned to the purchaser. In consideration of the facts of the case, the apprehension expressed by the CBI can be taken care of by directing the CBI to retain on record certified true copies of documents listed in Exhibit-G in return of original documents to the petitioners. The CBI shall certify all the documents listed in Exhibit-G and shall place a set of certified documents on record of the subject case, which will form part of the chargesheet. It is clarified that, certified copies of the documents, shall be treated as primary evidence for all purposes in the subject trial. The CBI Court shall handover the documents listed under Exhibit-G to the petitioners - Petition allowed.
-
2021 (11) TMI 613
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of pre-existing dispute when Notice under Section 8 was issued - HELD THAT:- Sub-section (2) of Section 8 obliges the Corporate Debtor who has been delivered a Demand Notice under Section 8(1) by Operational Creditor to bring into notice of the Operational Creditor existence of a dispute, if any, or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute - reply as required under Section 8(2), it is incumbent on Corporate Debtor to bring into the notice to the Operational Creditor existence of a dispute . Although notice under Section 8(1) was replied by the Corporate Debtor vide email dated 04.02.2019 as extracted above, but there is no mention of existence of a dispute. Rather the reply dated 04.02.2019 reiterate that the Respondents are ready to make the payment as per their revised plan communicated on 30.01.2019. There is a statutory purpose for requiring a Corporate Debtor to bring into notice of the Operational Creditor about the existence of a dispute in its reply to Section 8(1) notice. The purpose is that if there is a dispute in existence, the same may be immediately communicated to the Operational Creditor so that he may chart his course of action. When no mention of existence of dispute is made by the Corporate Debtor, the Operational Creditor can immediately file Application under Section 9 which has been done in the present case by Operational Creditor. In the present case, no notice of dispute has been received by the Operational Creditor as noted above. There is another expression in clause (d) noted above that there is a record of dispute in the information utility , the present is also not a case where there is record of any dispute in the information utility nor any such pleading or material has been placed before us. The very basis on which the Adjudicating Authority rejected the Application is not in existence. There being no pre-existing dispute between the parties, the Adjudicating Authority ought to have admitted the Application and proceeded with the Corporate Insolvency Resolution Process - The receipt or acknowledgment of the said debit notes has also been denied. It is not necessary for us to pronounce as to whether the debit notes are forged or manufactured for the purposes of this case, since the very basis of the decision of Adjudicating Authority was the existence of dispute. Application of the Operational Creditor filed under Section 9 stands admitted and the Adjudicating Authority is directed to proceed with. The Corporate Insolvency Resolution Process shall be deemed to have commenced from this date.
-
2021 (11) TMI 612
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - dispute regarding quality of the goods supplied by the Appellant - consignment number given in the track report and in the postal receipt does not match, thereby reflecting the non-service of notice under Section 8 of IBC - HELD THAT:- The Appellant itself has accepted and agreed to lift the complete material being defective and has failed to lift the material which is of no use to the Corporate Debtor. However, the Appellant is pressurizing using the provisions of IBC to recover the money forcefully as IBC immediately changes the management of the Company. It is also very much clear that they have not filed the Postal Receipt before this Tribunal which proves the fact that there is some mismatch between Consignment Number given in the Track Report and Postal Receipt. Hence, the finding of Adjudicating Authority is correct. It is also proved from the email that the Appellant has accepted the fact that the material is defective and substandard and failed to lift the complete material. In the present case the delivery of demand notice itself is a grey area and Adjudicating Authority has rightly held so. In addition to that there is also a pre-existing dispute - Furthermore, this is the case of chasing of payments under the pressure of IBC. Hon ble Supreme Court in TRANSMISSION CORPORATION OF ANDHRA PRADESH LIMITED VERSUS EQUIPMENT CONDUCTORS AND CABLES LIMITED [ 2018 (10) TMI 1337 - SUPREME COURT] has already held that IBC is not intended to be a substitute to a recovery forum and also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked. Appeal dismissed.
-
2021 (11) TMI 611
Rejection of Appellant s Statement of Claim - claim submitted belatedly delay of 52 days - HELD THAT:- Indisputably, in the present case on hand, Corporate Insolvency Resolution Process (CIRP) in respect of the Corporate Debtor was initiated by the Adjudicating Authority as per the order dated 29.10.2019. At the behest of M/s Sri Visveswaraya Co-operative Bank Ltd. the Public Announcement was made on 20.11.2019 by inviting claims of the Creditors of the Corporate Debtor in requisite form and the last date being 04.12.2019. In reality, the estimated date of closure of CIRP was mentioned as 26.04.2020. An extension of time was also granted by the Adjudicating Authority and inasmuch as, the suitable Resolution Plan was not received, the Corporate Debtor was placed under liquidation process on 12.12.2020. Unfortunately, the Appellant/Applicant had submitted its claim only on 04.03.2021 and to come out with the reason that the Appellant/Applicant was not aware of the CIRP and Liquidation Process of the Corporate Debtor are unworthy of acceptance and in the considered opinion of this Tribunal, the said reason was rightly rejected by the Adjudicating Authority , which requires no interference in the hands of this Appellate Tribunal . Appeal dismissed.
-
2021 (11) TMI 610
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors/Home Buyers - existence of debt and dispute or not - HELD THAT:- It is the version of the Appellant that it was created as a Special Purpose Vehicle after erstwhile Andhra Pradesh Industrial Infrastructure Corporation Ltd pursuant to a process of international bidding and evaluation accepted the proposal of and accorded approval to the Appellant/Emaar Properties PJSC, Dubai for development and construction of a township as a part of an integrated project, spanning over 285 acres of land at Manikonda Village, Rajendranagar Mandal, Ranga Reddy District, Andhra Pradesh and accorded approval through Government Orders to it, for the implementation and execution of the township as part of the Integrated Project. It is brought to the Fore that the Insolvency and Bankruptcy Code (Amendment)Ordinance 2019 was promulgated by the Government of India on 28.12.2019 to amend the provisions of I B Code. As a matter of fact, the Ordinance, among other things stated that an application under Section 7 of the Code for initiating CIRP against the Corporate Debtor shall be filed jointly by not less than 100 all such creditors (i.e. Home Buyers). Indeed, the Ordinance among other things mentions that an application under Section 7 of the code for initiating CIRP against the Corporate Debtor shall be filed jointly by not less than 100 all such creditors (i.e. home buyers) or not less than 10% of the total number or such creditors (Home Buyers) whichever is less. In the instant case on hand, the impugned order passed by the Adjudicating Authority (National Company Law Tribunal, Hyderabad Bench, Hyderabad) does not contain any direction being issued to the Respondents and other purported allottees to amend their application as laid down under Section of the code. Without there being a direction issued to the concerned financial creditor/allottees to amend their applications as per Section 7 of the Code, the directions issued by the Adjudicating Authority to its Registry as in the impugned order to club such applications together and place before it for hearing cannot be countenanced in the eyes of law. The matter is remitted back to the Adjudicating Authority for passing de novo orders on the issue of maintainability pertaining to clubbing of all matters - Petition disposed off.
-
2021 (11) TMI 609
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors - existence of debt and dispute or not - HELD THAT:- In Part-IV of Form No. 5 in the Petition, it has been mentioned that the Operational Creditor had assigned exclusive rights for advertisement to the Corporate Debtor of the MCGM in kiosks installed in Mumbai. This arrangement between the parties by way of an agreement was dated 08.08.2014 was based on 50-50% profit sharing ratio and certain minimum payment/guarantee per month per kiosk. However, subsequently the Agreement between the parties was revised (Revised Agreement) on 09.03.2016 - As per the revised Agreement, both the parties were free to compete with each other as per Clause-I of the Agreement subject to other provisions of the Agreement. It is the case of the Corporate Debtor that the Section which restricts the Operational Creditor was essentially relating to taking over the existing clients of the Corporate Debtor by the Operational Creditor by offering lower prices for the advertisement. The Bench notes, that the Operational Creditor had given an assurance to the Respondent that the important clients like LIC, Bank of Baroda and PNB who are currently with the Respondent will not be taken over by offering a lower price by the Operational Creditor, Infobay Interactive Private Limited as they are its long existing clients - The Bench notes that the basis of the dispute posed by the Corporate Debtor is based on his averments that Mr. Jerald Stephen was in connivance with the Operational Creditor and got the orders of the Corporate Debtor diverted to the Operational Creditor. However, the Bench finds that this argument does not hold ground based on the fact that Mr. Jerald continued as an employee of the Corporate Debtor till May 2017 and all the bills/invoices and payments relate to the period up to 31st March 2017 which pre-dates the month of resignation of Mr. Jerald Stephen. It is clear to the Bench that the Corporate Debtor is in default of a debt due and payable and the default is in excess of minimum amount of ₹ 1 lakh stipulated in u/s. 4(1) of the IBC. In view of this, the Company Petition, CP (IB)-MB-2019 is Admitted . Petition admitted - moratorium declared.
-
2021 (11) TMI 608
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repaymnet of its dues - Financial Creditors - existence of debt and dispute or not - Jurisdiction - time limitation - HELD THAT:- The date of default as per the application, is in the year 2019. The present application is filed on 20.06.2020. Hence, the application is within in the period and is not barred by limitation. Jurisdiction - HELD THAT:- The registered office of the Corporate Debtor is situated at Delhi and therefore this tribunal has jurisdiction to entertain and try this application. It is observed that the Claim of the Financial Creditor in the present application arises out of the MoUs executed in 2010-2012, with respect to Assured Monthly investment return to be received from the Corporate Debtor and the monthly rent received by the Corporate Debtor and paid to the Financial Creditor for their respective office space unit leased to OFCSPC Worldwide Pvt. Ltd. As per the averments mentioned by the Financial Creditor the default has occurred since the Corporate Debtor has not paid the Assured Investment return from January 2019. The application stands admitted in terms of Section 7 of IBC, 2016 - Moratorium declared.
-
2021 (11) TMI 607
Seeking Liquidation of Corporate Debtor - section 33(1)(a) of Chapter III of IBC, 2016 - Seeking appointment of Resolution Professional as Liquidator for administering the Liquidation Process of the Corporate Debtor - HELD THAT:- Since this Adjudicating Authority did not receive any Resolution Plan under Sub-Section (6) of Section 30 of the I B Code, 2016, this Adjudicating Authority deems it proper to allow the Application. This Adjudicating Authority hereby order for Liquidation of M/s. Velugu Engineering and Enterprises Private Limited which shall be conducted in the manner as laid down in Chapter III of part II of the I B Code, 2016 - Application allowed.
-
2021 (11) TMI 606
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- From the conjoint reading of para 12 and 13, it is found that in the instant case, the amount has been released pursuant to the Agreement dated 25.03.2019 in the form of Security Deposit and the same is interest bearing, which means it is carrying consideration of time value of money having commercial effect of a borrowing. Therefore, the debt claimed is a Financial Debt within the definition of Section 5(f) of IBC, 2016. The petitioner is directed to issue notice upon the Corporate Debtor by all modes as to why the CIR process shall not be initiated against it. List the matter on 29.10.2021 - petition is maintainable.
-
2021 (11) TMI 605
Seeking liquidation of the Corporate Debtor - no resolution plan was received - Section 33 of I B Code - HELD THAT:- Section 33(2) of the Code enjoins the Adjudicating Authority to pass an order for liquidation of the Corporate Debtor where the resolution professional, at any time during the CIRP but before confirmation of the resolution plan, intimates the Adjudicating Authority of the decision of the CoC approved by not less than sixty-six percent of the voting share, to liquidate the Corporate Debtor. In the present case, the CoC has resolved by 100% voting share to liquidate the Corporate Debtor. The Corporate Debtor is ordered to be liquidated in terms of section 33(2) of the Code read with sub-section (1) thereof - Application allowed.
-
2021 (11) TMI 604
Avoidable transactions made by Respondent Nos. 1-3 - fraudulent and wrongful transaction within the meaning of section 66 of the Code - intent to defraud the creditors or not - HELD THAT:- The business of the Corporate Debtor has not been carried out to defraud the creditors. The Corporate Debtor has exercised proper control in the affairs of the Corporate Debtor - It is denied that the Respondents have not cooperated with the RP or have refused to provide any information or document. It is wrong to submit that the books of accounts of the Corporate Debtor have not been maintained as per the law. Merely because the Respondents are Managing Directors and Chairman and CFO of the Corporate Debtor, they are not liable to contribute the astronomical sums as prayed for in the said application. It is incumbent upon the RP to form an opinion as to whether the Corporate Debtor has been subjected to preferential, undervalued or as has been alleged in the present case - fraudulent transaction on or before the seventy-fifth day from the date of commencement of CIRP - In the present case, CIRP had commenced on 07.02.2020, therefore, as per the said regulation, an opinion should have been formed on of before 22.04.2020; determination should have been made on or before 01.06.2020 and the application under the relevant section applicable should have been filed on or before 21.06.2020. The two independent auditors appointed by the financial creditors prior to initiation of CIRP, when the Trust Retention Account was operational, have cleared the transactions in question without any demur. Further, it is not the Resolution Professional's case that any benefit in the form of any additional facilities from the financial creditor has been obtained by the corporate debtor or its key managerial personnel. Therefore, the allegation that the transactions were intended to defraud the creditors, does not hold water. Consequently, the allegations under section 66 cannot be sustained. We are not inclined towards granting the prayers made in the present application - application dismissed.
-
2021 (11) TMI 603
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Amicable settlement with the Financial Creditor arrived at - HELD THAT:- T he counsel appearing for the Financial Creditor invited the attention of this Tribunal to the relevant documents filed in proof of debt and default in support of above company petition. Since the Respondent/Corporate Debtor did not file any reply, the claim of the Financial Creditor remains unchallenged. The Financial Creditor successfully proved the existence of the debt and default and the debt is also within limitation. The petitioner has also suggested the name of proposed Interim Resolution Professional in part-3 of the Petition along with his consent letter in Form-2. Thus, the present Company Petition satisfies all the necessary requirements for admission. This tribunal is of the considered opinion that the above company petition is liable to be admitted - petition admitted - moratorium declared.
-
Service Tax
-
2021 (11) TMI 602
Violation of principles of natural justice - procedure for hearing appeals through video conferencing during the Covid-19 pandemic, not followed - HELD THAT:- The procedure for maintaining a record of personal hearing was created by the 3rd respondent to ensure compliance with the principles of natural justice during hearings undertaken through video conferencing. The procedure so created was based upon the guidelines laid down by the Supreme Court in its order dated 27.04.202 in suo motu WP(C) No.5/2020. The measures directed by the 3rd respondent as per its instructions bearing No.F.No.390/MISC/3/2019-JC lays down the various instructions for conduct of virtual hearing through the facility of video conferencing. The Appellate Authority has infracted the procedure laid down for hearing appeals through video conferencing methods. The impugned order is therefore found to be issued in violation of the principles of natural justice and is liable to be set aside and fresh orders are required to be passed - the 2nd respondent Appellate Authority is directed to pass fresh orders after complying with the procedure and after hearing the petitioners - petition allowed.
-
2021 (11) TMI 601
Refund of service tax - purchase of under-construction flats/floors to the builder(s) - composite contracts - HELD THAT:- Levy of service tax on composite contract for purchase of under construction complex, as defined under Section 65(105)(zzzh) of the Finance Act, 1994, was the subject matter of dispute before the Hon ble Delhi High Court - In the case of SURESH KUMAR BANSAL ANUJ GOYAL ORS. VERSUS UNION OF INDIA ORS. [ 2016 (6) TMI 192 - DELHI HIGH COURT] , the Hon ble Delhi High Court has held that no service tax shall be levied on composite contracts. From a plain reading of the Section 65(105)(zzzh), it is evident that there is no legal mandate to bifurcate the elements of a composite contract as to service component and material component and /or land component and thus, in absence of such mandate, the value of a composite contract cannot be disintegrated for the purpose of service tax levy as held by the Hon ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS [ 2015 (8) TMI 749 - SUPREME COURT] - in spite of retrospective amendment in Rule 2 A of the Service Tax (Determination of Value) Rules, 2006, service tax cannot be charged for the services defined under Section 65(105)(zzzh). Revenue is directed to refund the amount of ₹ 3,53,821/- paid through the builder to the Government exchequer within a period of 45 days from the date of receipt/service of copy of this order along with interest @ of 6% from the date of deposit of the tax, till the date of refund - Appeal allowed - decided in favor of appellant.
-
2021 (11) TMI 600
Levy of service tax - forfeiture of earnest money and retention of compensation / liquidation damage for not delivery of purchased goods by the other party - declared service or not - agreeing to refrain from or tolerating an act or not - HELD THAT:- Where service tax is chargeable on any taxable service with reference to its value, then such value shall be determined in the manner provided for in (i), (ii) or (iii) of subsection (1) of section 67. What needs to be noted is that each of these refer to where the provision of service is for a consideration , whether it be in the form of money, or not wholly or partly consisting of money, or where it is not ascertainable. In either of the cases, there has to be a consideration for the provision of such service. Explanation to sub-section (1) of section 67 clearly provides that only an amount that is payable for the taxable service will be considered as consideration . This apart, what is important to note is that the term consideration is couched in an inclusive definition. The Hon ble Apex court in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [ 2018 (3) TMI 357 - SUPREME COURT] while relying upon their earlier decision in the case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [ 2018 (2) TMI 1325 - SUPREME COURT] (order does not show that this order has been followed) has held that since service tax with reference to value of service as a necessary corollary it is the value of service which are actually rendered, the value is to be ascertained for the purpose of calculating the service tax payable thereupon. This perusal of the nature of the amount herein are clear to hold that these amounts are not received by the appellant in lieu of rendering any service. Neither the appellant is carrying on any activity to receive compensation nor can there be any presumption for intention of other party to breach or violate the contract and suffer the losses. The only purpose is for minium compensation and of forfeiting the earnest money is to ensure that the default act is not undertaken again or repeated. However, from any stretch of imagination the retention of such amount cannot be said to be an act of receiving consideration that too towards toleration of the defaulting act of the other parties. What only appears from retention of the money in question is the expectation of the appellant that other party should comply with the terms of the contract and such other party shall be burdened if there is any non compliance on its part. Hence question of tolerating the act of default as alleged by the Department, does not at all arises. The finding of the Commissioner (Appeals) is nothing but the presumption of correctness in the allegation raised vide the impugned Show cause notice. Commissioner (Appeals) has miserably failed to provide any justification to hold that the impugned amounts are received as a consideration for rendering the services as that of tolerating the act of defaulting parties - appeal allowed - decided in favor of appellant.
-
2021 (11) TMI 599
Disallowance of adjustment of demand of service tax, out of the cenvat credit lying to their credit as on 30.06.2017 - period prior to 30.06.2017 - HELD THAT:- There is no bar or disability under Section 140(1) read with Section 142 of CGST Act, 2017 on an assessee for claiming adjustment of the tax demand from the unutilised cenvat credit (lying to the credit as on 30.06.2017), which has not been carried forward to the GST regime. I further find that the Commissioner (Appeals) has committed a mistake of law. Accordingly, the appeal is allowed, and the impugned order of the Commissioner (Appeals) is set aside. It is further directed that the Adjudicating Authority to grant adjustment of the unutilised amount of ₹ 14,31,166/- against the demand payable by the assessee - appeal allowed - decided in favor of appellant.
-
2021 (11) TMI 598
Refund of unutilized CENVAT credit accumulated - export of legal services, in terms of Rule 5 of CENVAT Credit Rules 2004 - period from July, 2012 to March, 2015 - HELD THAT:- Only in the case of legal services provided by an individual Advocate or a Firm of Advocates to a business entity located in the taxable territory (emphasis supplied) the recipient is liable to pay the tax and consequently only those cases will fall outside the scope of output service . Legal services exported would fall within the scope of output service - Even otherwise, in the case of exports in general, the recipient of the service is not liable to pay the tax and hence export services would be output services provided they are not in the Negative List. Once it is established that the Appellants are providing output service they are entitled to take credit of input service. It is an admitted fact that credit proportionate to services provided within the taxable territory has been reversed. After such reversal remaining unutilized CENVAT Credit pertains only to export of legal services and becomes eligible for refund in terms of Rule 5 of CCR and Notification no. 27/2012-CE(NT) dated 18.06.2012 - The ld. Commissioner (Appeals) has also referred to Rule 6 of CCR to maintain his stand that when a service is exempt from tax input credit cannot be allowed. However, sub-section (7) of the said Rule specifically excludes export of services from the relevant provisions of the Rule which disallow input credit. The necessity or otherwise for the appellants to get themselves registered under the Act is not pertinent to the issue. It may however be noted that the appellants have shown sufficient reason for taking registration and the Department had not raised any objection against it or against taking input credit all these years during which returns had also been filed regularly. There is no merit in the impugned orders - Appeal allowed - decided in favor of appellant.
-
Central Excise
-
2021 (11) TMI 597
Removal of goods from premises of job-worker - return of Waste/scrap and subsequent clearance - Demand of Excise duty on the estimate quantity of copper which was not returned/ explained by the appellant - SCN alleged that on an average approximately 2 % of copper was scraped during the various processes such as drawing, paper insulation/covering etc. - HELD THAT:- The issue decided in the case of M/S VOLTAMP TRANSFORMER LTD. VERSUS CCE VADODARA [ 2013 (11) TMI 1215 - CESTAT AHMEDABAD ] where it was held that There is also no binding clause in Rule 4(5)(a) of CENVAT Credit Rules, 2004 that any loss of inputs by generation of waste and scrap has to be compensated by reversing equivalent credit taken on the virgin metal, demand if any on waste and scrap has to be raised against the manufacturer job worker and not upon the raw material supplier. Appeal allowed - decided in favor of appellant.
-
2021 (11) TMI 596
Area Based exemption - benefit of the exemption N/N. 50/2003-CE - opportunity of personal hearing was not given - violation of principles of natural justice - HELD THAT:- In the show cause notice itself the appellant was asked to submit a reply and also indicate if it wished to be heard in person. This is not a case of the principles of natural justice being violated but is a case where the appellant chose not to utilise the opportunity of defending its own case and then trying to benefit from its own decision by accusing the original authority of not giving an opportunity of personal hearing. There are no force in this submission. The appellant tried to counter the Panchnama recorded by the officers by relying on various documents which it had submitted to various state and other authorities. A perusal of the documents listed shows that these are either licences or registrations obtained by the appellant or applications or declarations filed by it to various authorities. None of these is a document establishing that the commercial manufacture had commenced before 31 March 2010 - None of the documents which are said to have been produced before the Commissioner (Appeals) pertain to physical verification and finding of any authority to show that the factory was set up and commercial production commenced before 31 March 2010. Therefore, there are no force in this ground of appeal also. Commencement of commercial production prior to 31 March 2010 - HELD THAT:- It is hard to believe this assertion when the plant itself was not set up before 31 March 2010 as per the Panchnama drawn on physical verification. The Panchnama mentions that in a room only a few hand presses and one grinder bench were lying at the time of verification. There are no force in this ground of appeal of the appellant also. The appellant is not entitled to the benefit of exemption N/N. 50/2003-CE dated 10.06.2003 and the impugned order needs to be upheld - Appeal dismissed.
-
2021 (11) TMI 595
Entitlement to interest on refund - refund of the pre-deposit made or deposit made during investigation, under protest - HELD THAT:- Division Bench of this Tribunal in M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS SERVICE TAX, NOIDA (VICE-VERSA) [ 2021 (5) TMI 870 - CESTAT ALLAHABAD] held that, wherein interest on pre-deposit (made during investigation) has been enhanced from 6% to 12%, following the ruling of the Apex Court in SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [ 2006 (1) TMI 55 - SUPREME COURT] . The Adjudicating Authority is directed to grant interest @ 12% p.a. from the date of deposit till the date of refund. Such interest should be granted within a period of two months from the date of receipt or service of the copy of this order. Appeal allowed.
-
2021 (11) TMI 594
Maintainability of appeal - dismissal on the ground of time bar - non-exclusion of period in obtaining the certified copy i.e. the period from 22.05.2018 till 17.07.2018 - HELD THAT:- The fact of service of the photocopy on 14.05.2018 as well as application for certified dated 22.05.2018 and the issue of certified copy on 11.07.2018 and service of the same by post on 17.07.2018, are undisputed. The ld. Commissioner (Appeals) has erred in not excluding the period in obtaining the certified copy i.e. the period from 22.05.2018 till 17.07.2018. Further, in the facts and circumstances, the date of service of the order-in-original is held to be 17.07.2018, (certified copy), as assessee cannot file appeal before the Commissioner (Appeals), without certified copy. The appeal has been filed within 90 days from the date of service and the delay is hereby condoned - the appeal is allowed by way of remand to the Original Adjudicating Authority, for decision on merits.
-
Indian Laws
-
2021 (11) TMI 593
Validity of setting aside the arbitration award in favour of the ONGC - failure to complete supply on time - liability of liquidated damages - time and date of delivery of supply order - delayed supplies even delivery and/or accepted by the purchaser will be treated as supplied/effected after schedule period without prejudice to Failure Termination Clause or not - extension in delivery period - entitlement to claim damages under Failure Termination Clause unless purchaser clearly waives his right in writing to recover such damages with the approval of competent authority. HELD THAT:- The Arbitral Tribunal, at the outset, held that merely having a clause in the contract making time the essence of it would not be determinative; rather, an overall view having regard to all the terms of contract are to be taken into consideration. Further, they noted that contracts containing provision for extension of time or payment of penalty on default would dilute the obligation of timely performance and render the clauses imbuing time as essence of the contract ineffective - On the aspect of liquidated damages, the Arbitral Tribunal held that liquidated damages, which are pre-estimated damages, cannot be granted as there was no breach of contract due to the fact that time was not the essence. Accordingly, the Arbitral Tribunal proceeded to determine the actual damages based on the evidence furnished. In this case at hand, the challenge of award is based on the fact that the same is against the public policy and patent illegality. Public policy as a ground of challenge has always been met with certain scepticism. The phrase public policy does not indicate a catch-all provision to challenge awards before an appellate forum on infinite grounds - the ambit of the same is so diversly interpreted that in some cases, the purpose of limiting the Section 34 jurisdiction is lost. This Court s jurisprudence also shows that Section 34(2)(b) has undergone a lot of churning and continue to evolve. The purpose of Section 34 is to strike a balance between Court s appellate powers and integrity of the arbitral process. The main challenge to the award is against the imposition of unliquidated damages, when the matter of fact stood that the contract between parties stipulated for pre-estimated damages (liquidated damages). The concerned contract contained provisions for liquidated damages for breach of contract, particularly breach of deadlines set in the contract. Under Indian Contract law, such liquidated damages are recognized, subject to the same being reasonable - It is now settled that whether time is of the essence in a contract , has to be culled out from the reading of the entire contract as well as the surrounding circumstances. Merely having an explicit clause may not be sufficient to make time the essence of the contract. As the contract was spread over a long tenure, the intention of the parties to provide for extensions surely reinforces the fact that timely performance was necessary. The fact that such extensions were granted indicates ONGC s effort to uphold the integrity of the contract instead of repudiating the same. The Arbitral Tribunal s interpretation of contractual clauses having extension procedure and imposition of liquidated damages, are good indicators that time was not the essence of the contract - The Arbitral Tribunal s view to impose damages accrued on actual loss basis could be sustained in view of the waiver of liquidated damages and absence of precise language which allows for reimposition of liquidated damages. Such imposition is in line with the 2nd para of Section 55 of the Indian Contract Act - The High Court and District Court strayed beyond the limitation under Section 34 and 37 of the Arbitration Act. Appeal disposed off.
-
2021 (11) TMI 592
Seeking release and the restoration of property attached under Section 83 of the Code of Criminal Procedure, 1973 - whether the right of the Petitioners to seek release of property under Section 85 of Cr.P.C. beyond two years from the date of its attachment stands extinguished? - HELD THAT:- Section 83 of Cr.P.C. empowers the Court, issuing a proclamation under Section 82 to order the attachment of any property movable or immovable or both belonging to the proclaimed person. Subsection 4 of Section 83 provides that if property ordered to be attached is immovable, the attachment be made through Collector of District, either by taking possession or by appointment of receiver or by an order in writing prohibiting the payment of rent on delivery of property to proclaim person or to anyone on his behalf or by all or any of such methods as the Court thinks fit - Soniya had filed an application purportedly under Section 84 and although her claim and objection to attachment, was not entertained, she did not file the suit to establish her rights in the property. Be that as it may, under Section 85(1), if proclaimed person person appears within the time specified in procolamation order, the Court is empowered to make an order to release the property from attachment. If proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State of Government. Yet property shall not be sold until any claim preferred or objection made under Section 84 has been disposed of under that Section. Pending attachment under Section 83 of Cr.P.C.; same property was attached before judgment in 2008 in the suit instituted by the Complainant. In the said summary suit, consent terms were filed in October, 2019. Whereafter on 10th October, 2019, the suit was disposed of and consent decree was drawn. Whereafter Registrar of City Civil Court was directed to unseal the property and hand over possession to Dinesh Singh Lakra, director of the Petitioners-Company. Admittedly, the property in question was under attachment of City Civil Court till October, 2019, and thus after drawing the consent decree in October, 2019, application was moved by the Petitioners under Section 85 of Cr.P.C., which they could not have moved in view of order of attachment passed in Civil Suit - the Petitioners were prevented by sufficient cause in pursuing the remedy under Section 85 of Cr.P.C. These facts were completely ignored by the learned Metropolitan Magistrate. The order passed under Section 83 is subject to Sections 84 and 85 of the code. Section 85(3) empowers the Court to decide the application on merits. The underlying scheme and object of attaching property of the absconder is not to punish him, but to compel his appearance and therefore under Section 85 of Cr.P.C., Court is empowered to release and restore the attached property. Thus, although the application is required to be made within a period of two years from the date of attachment, however if made after two, that itself shall not preclude the Court from exercising the jurisdiction under Section 85 of Cr.P.C., if reasonable cause is shown, for not approaching within the given time. If period of two years envisaged under Section 85(3) is construed literally, it shall frustrate the object of the attachment - the Courts are bound to consider the application filed under Section 85(3) on merits by ascertaining, whether notice of proclamation was properly served on the party and whether application filed beyond two years prescribed under the statute is explained with reasonable cause. Procedure is hand maid of justice. The endeavour of the Court should be to render justice by appropriate interpretation of statute. Therefore if the Court finds that the person could not approached to seek release and restoration of property within two years due to circumstances beyond his control then in such a case propriety rights of such person in the property would not extinguish automatically. Therefore it is held that, Subsection 3 of Section 85 empowers the Court to entertain the application for release and restoration of the property beyond two years from the date of attachment, if such a person proves to the satisfaction of the Court that he was prevented by a sufficient cause, from making an application for release and restoration of the property. Thus, to be stated that two years period referred for lifting the attachment cannot be read literally to say the belated application is not maintainable, even if there is a justifiable cause for not seeking release of raising the attachment after two years. In this case, the learned Metropolitan Magistrate did not consider the circumstances, which prevented the Petitioners for making the claim under Section 85(3) of Cr.P.C. within a period of two years. In the circumstances and for the reasons stated, the impugned order dated 21st November, 2019 is quashed and set aside and the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, is directed to decide Petitioners application on merits - petition allowed.
-
2021 (11) TMI 591
Smuggling - Opium - quantum of sentence in lieu of default in payment of fine may also be reduced appropriately - occasion to interfere with the sentence awarded to the accused appellants or not - HELD THAT:- This Court need not go into the merits of the case and the conviction recorded by the learned trial court is hereby upheld. As far as the sentence is concerned, the learned trial court has awarded a total punishment of 15 years RI to each appellant and in default of payment of fine to undergo two years RI. Hon ble Supreme Court while confirming the conviction of appellant therein reduced the sentence of 15 years to 10 years. Applying the law laid down by Hon ble Supreme Court in the case of SHAHEJADKHAN MAHEBUBKHAN PATHAN VERSUS STATE OF GUJARAT [ 2012 (10) TMI 518 - SUPREME COURT] in the facts of this case, as the appellant is a first time offender, the sentence of 15 year as imposed by the learned trial court upon the appellant is hereby reduced to 10 years. Default sentence in lieu of fine - HELD THAT:- It is evident that the learned trial court has imposed a fine of ₹ 1,50,000/- and in default of which, the learned trial court has imposed two years R.I. - in the cases of N.D.P.S. Act, the sentence awarded in default of payment of fine is not akin to the main sentence. It is a penalty which a person incurs on account of non payment of fine. If the sentence is imposed against an offender he must undergo it; unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings. Thus, the imprisonment ordered in default of payment of fine stands on a different footing. The conviction recorded by the learned trial court for offence under Section 8/18 of NDPS Act is hereby confirmed. The sentence imposed upon the present appellants to undergo 15 years rigorous imprisonment is hereby reduced to 10 years R.I. The order of payment of fine in the sum of ₹ 1,50,000/- is hereby maintained, however, in the facts and circumstances of the case, the sentence awarded in default of payment of fine i.e. two years R.I. is hereby reduced to one year R.I. Since the appellants have already served 11 years 04 months R.I, they may be released forthwith, if not required in any other case. Appeal disposed off.
-
2021 (11) TMI 590
Seeking grant of anticipatory bail - petitioner found to be absconding - offences punishable under Sections 147, 148, 323, 324, 307, 308, 504 and452 of the Indian Penal Code - non-bailable offence or not - HELD THAT:- The petitioner is charged for the offences punishable under Sections 147, 148, 323, 324, 307, 308, 504 and452 of the Indian Penal Code. The incident is of 05.03.2017. Even the charge-sheet has been filed against the petitioner and other co-accused as far as back on 20.11.2018. Earlier the petitioner moved an application before the High Court to quash the charge-sheet, in exercise of powers under Section482 Cr.P.C. which came to be dismissed by the High Court vide order dated10.12.2019. However, though not permissible the High Court vide order dated10.12.2019 directed that in case the applicant appears and surrenders before the Court within 30 days and applies for bail, his prayer for bail shall beconsidered and for a period of 30 days no coercive steps can be taken against the accused in the aforesaid case. Despite the same and having taken the benefit of the order dated 10.12.2019, the petitioner did not surrender and apply for regular bail. That thereafter non-bailable warrant has been issued against the applicant and even the proceedings under Section 82 of the Cr.P.C. has been initiated. The petitioner is continuously absconding and not available at home. The submission on behalf of the petitioner that initially he was not named as accused in the FIR is concerned, the same has been dealt with by the Learned trial Court and the Learned trial Court has observed that even in the first FIR one person was shown as unknown. Thus, from the aforesaid it is found that there is a prima facie case found against the petitioner for the aforesaid offences and even the charge-sheet has been filed and the petitioner is found to be absconding. Therefore, this is not a fit case to grant anticipatory bail to the petitioner. The Court shall not come to the rescue or help the accused who is not cooperating the investigating agency and absconding and against whom not only nonbailable warrant has been issued but also the proclamation under Section 82Cr.P.C. has been issued - Application dismissed.
|
