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TMI Tax Updates - e-Newsletter December 18, 2021 Case Laws in this Newsletter: GST Income Tax Customs Corporate Laws Insolvency & Bankruptcy PMLA Service Tax Central Excise CST, VAT & Sales Tax Indian Laws Highlights / Catch Notes GST: Classification of goods - CNG Dispenser manufactured and supplied by the Applicant - Section XVI of the GST Tariff covers Chapter Heading 84 and 85 of the GST Tariff. Note 1 (m) of the Section Notes states that, articles of Chapter 90 of the GST Tariff are not covered under Section XVI i.e. Chapters 84 and 85 of the GST Tariff. Further primary function of the impugned product is to dispense CNG Fuel and has an inbuilt mechanism to constantly measure and regulate the mass of Gas being transferred to the vehicle. - impugned product is covered under Chapter Heading 8413.11 - AAR Visit to Get Source GST: Classification of goods - Rava Idli Mix - In the instant case the impugned product is admittedly a mixture and does not give the character of either of the constituent flour but altogether a different new product with the different character as “Rava Idli Mix”. Therefore the impugned product is rightly classifiable under Rule 3(a) supra and hence Rule 3(b) is not applicable. Further as the impugned product is covered under rule 3(a), there is no need to look into rule 3(c) - the impugned product “Rava Idli Mix” merits classification under tariff heading 2106 and attract the GST rate of 18% - AAR Visit to Get Source GST: Benefit of exemption from GST - Services of ‘Commission Agent' for rice millers and traders - Supply of services which pertains to selling of agricultural produce as per APMC Act - both rice and paddy are produce out of cultivation of plants. But rice and paddy are not the same as rice is the outcome of milling process of paddy. While rice is readily consumable, paddy when subjected to milling processes yield rice, husk and rice barn. Milling process is not normally done by the paddy producer or cultivator, but is undertaken by the millers. Milling process also changes the essential characteristics of the produce from paddy to rice, which are both distinctly identifiable and separately marketable commodities. Thus, the criteria (ii), and (iv) above are not satisfied in the instant case - AAR Visit to Get Source GST: Classification of goods - Marine Engines - The marine engines and spare parts used for fishing vessels (being part of the fishing vessel) attract 5% GST. If marine engine is supplied for use other than as parts of fishing vessels as stated above, the rate of GST is applicable under the respective Customs Tariff Headings in which they are classified. - the replacement of the goods and service during the warranty period without consideration does not come under the purview of supply and no GST is leviable in such case. - AAR Visit to Get Source GST: Classification of services - hospitality industry services - Since the Applicant is raising separate invoices for the services supplied by him to AMSL, there is no provision of 'bundled services’ to AMSL by the applicant, but two separate supply of services. - Since there is no provision of 'bundled services' by the applicant to AMSL, the same is not covered under the definition of 'composite supply.' - The service of supply of food provided by the applicant is also covered under the above entry of the and hence attracts GST at 5%. - AAR Visit to Get Source Income Tax: Residential status of assessee - The claim of the petitioner is totally misfound. The objective of the Treaty is to avoid double taxation and not to avoid taxation. In order to claim benefit in India, the petitioner has to provide TRC from the Government of USA which admittedly he does not possess. Case of the petitioner in our view is hit by Section 90(4) of the 1961 Act which contemplates that a non-resident assessee claiming benefit under the double taxation avoidance agreement is not entitled for such benefit unless the said assessee obtains TRC from the country of which he is resident. - HC Visit to Get Source Income Tax: Notice against company non existing - The Principal Chief Commissioner is directed to hold an enquiry against the concerned officers as to why despite being brought to their notice that Vadinar Power Company Limited is a non existing entity having been amalgamated with petitioner notices were continued to be issued in the name of Vadinar Power Company Limited and even the order disposing of the objections came to be passed in the name of Vadinar Power Company Limited resulting in the notice under Section 148 of the said Act itself being quashed. The Principal Chief Commissioner, after holding an enquiry, may take such action as required against the erring officers, if found guilty. - HC Visit to Get Source Income Tax: Refund claim - petitioner had not filed returns either u/s 139(1) or within the extended period u/s 139 (4) - Since the law mandates a particular thing to be done in a particular manner, it was incumbent on the part of the second respondent or the Jurisdictional Assessing Officer ought to have issued a notice under Section 148 to determine the tax liability of the petitioner. As this was not done, case deserves to be remitted back to the second respondent to first finalize the assessment of the petitioner for the assessment year 2011-12 within a period of three months from the date of receipt of copy of this order. Failure to issue a notice under Section 148 of the IT Act, 1961, cannot be to the prejudice of the petitioner, if ultimately it is found that petitioner was entitled to a refund. However, liberty is given to penalise the petitioner for failure to file returns in time and for levy of interest if any. - HC Visit to Get Source Income Tax: Reopening of assessment u/s 147 - addition made on account of loss on exchange rate difference - if the view of AO is accepted then the purchases would be booked at the time of RBI’s fixed rate and when actual payment will be made, the exchange rate difference would be less and the purchase cost would be increased by corresponding amount which is evident from the observation of AO as he has computed foreign exchange loss of ₹ 3.08 Crores in place of 1.91 Crores calculated by assessee. CIT(A) also held that the allegation of Assessing Officer is that assessee circulated black money is baseless and impounded. Thus, we do not find any infirmity or illegality in the order passed by ld. CIT(A), which we affirm accordingly. - Decided against revenue. - AT Visit to Get Source Income Tax: TDS u/s 195 - Disallowance of sales commission paid to foreign agents - There is no dispute that these foreign agents do not have permanent establishment in India and hence under Article 7 of India and Austria DTAA as well under Article 7 of India – Italy DTAA, no business profit is taxable in India. Since no income out of commission payment is chargeable to tax in India in the hands of foreign agents, there is no requirement of deducting tax at source u/s 195 - disallowance made u/s 40(a)(i) in all the three years is not justified. - AT Visit to Get Source Income Tax: Revision u/s 263 by CIT - Addition u/s 56(2) - The admitted position in the present case is that the assessee did not file any valuation report to substantiate the fair market value of shares issued in terms of Sec.56(2)(viib) (a)(i) of the Act and Rule 11UA of the Rules. In such circumstances, we are of the view that the AO could not have accepted the intrinsic value without calling for a value in terms of Rule 11UA of the Rules to find out whether class (i) or class (ii) of explanation (a) to Sec.56(2)(viib) of the Act would be applicable - Thus the order of the AO was erroneous. - Revision order sustained - AT Visit to Get Source Income Tax: Addition of expenditure on provision for construction cost of various sites in view of mercantile system of accounting - matching concept of accountancy provision - Expenditure can be provided only, if the expenditure has actually accrued. Since in this case, Ld.CIT(A) has not given any finding that the expenditure has accrued, we deem at appropriate to remit the issue to the file of the Ld.CIT(A). The Ld.CIT(A) shall examine the issue afresh and give a finding whether the expenditure allowed by him can be considered to be the expenditure which is accrued during this year - AT Visit to Get Source Income Tax: Application u/s 154 - grant of interest u/ 244A - On appeal, we find that the CIT(A), being of the view that the impugned order before him was an order passed by the A.O u/s 154 of the Act declining the assessee’s request for rectification, had thus, proceeded with on the basis of the said misconceived factual position and had dismissed the assessee’s appeal, for the reason, that the claim of the assessee did not fall within the realm of a mistake apparent from the record within the meaning of Sec. 154 - Assessee shall in the course of the set-aside proceedings remain at a liberty to substantiate its entitlement for interest u/s 244A on the amount of the self-assessment tax - AT Visit to Get Source Income Tax: Income accrued/taxable in India - Tax Resident - The assessee before us is certainly an Indian national, but he is admittedly resident in the UAE so far as his residential status, under the Indo UAE tax treaty is concerned, is of the UAE tax resident. The residuary taxation rights, in terms of the treaty provisions, belong to the residence jurisdiction, but even if that was not to be so, the residence rights can at best go to the source jurisdiction, which in turn refers to a jurisdiction in which the income is earned, rather than a jurisdiction in which the income is invested. By no stretch of logic, therefore, such an income could be taxed in India, which is neither residence nor source jurisdiction; it is at best investment jurisdiction. However, the scheme of tax treaties limits the rights of taxation either to residence or to source jurisdiction. - AT Visit to Get Source Income Tax: Levy of late fee u/s. 234E - Fee for default in furnishing statements - delay in filing statement of TDS within the prescribed time - Relief should not be refused to the taxpayer merely because there was a conflicting decision of a non-jurisdictional high court - we are of the view that the levy of interest u/s.234E of the Act in the present case cannot be sustained and the same is directed to be deleted and the appeals of the Assessee are allowed. - AT Visit to Get Source Income Tax: Additional depreciation claimed by the assessee company @ 10% in respect on new plant & machinery acquired by it after September 30, 2012 (AY 2013-14) - Number of days asset is used - the additional depreciation is allowable depreciation and the amendment is not applicable in present assessment year i.e. A.Y. 2014-15 in assessee’s case. - AT Visit to Get Source Customs: Refund - Concessional rate of duty - In any event, merits of the refund claim of the petitioner would require a proper determination on facts and therefore, the second respondent was required to issue proper show cause notice to the petitioner giving the reasons why refund claim filed by the petitioner should not be rejected. Rejection of the refund claim of the petitioner merely based on a intra-departmental communication is not sufficient. - HC Visit to Get Source Customs: Levy of penalty on Advocate - Seeking deletion of para from order of the Commissioner of Customs (Appeals) - In some occasions that are marked by their rarity, one may transcend the traditional contours of professional conduct; but this happens even with adjudicators as well; the ultimate object is to do justice to the cause; it hardly needs to be stated that the judgments & orders should not be written with a pen dipped in acid; after all ‘acidity’ affects health; the acidic words rob away the living beauty of the scripts; viewed from this angle, the highlighted portion of the observations in the subject order need to be expunged; it is in the best interest of both the stakeholders, namely, Bar & the Bench; such expunction would only add to the beauty of the order in question which is meticulously texted with appreciable articulation. - HC Visit to Get Source Customs: Refund claim of Special Additional Duty (SAD), under Customs Act, in lieu of sales tax - rejection on the ground of time limitation - The Hon’ble High Court has clearly held that the expression “so far as may be” used in sub-section (6) of Section 3 of CTA, has to be followed to the extent possible. Merely because Section 27 of the Customs Act provides for a period of limitation for filing refund claim, it cannot be held that even for the purposes of claiming refund in terms of the Notification, the same limitation has to be applied. - AT Visit to Get Source Indian Laws: One Time Settlement (OTS) - Non-Performing Asset, (NPA) - The sum and substance of the discussion would be that no writ of mandamus can be issued by the High Court in exercise of powers under Article 226 of the Constitution of India, directing a financial institution/bank to positively grant the benefit of OTS to a borrower. The grant of benefit under the OTS is always subject to the eligibility criteria mentioned under the OTS Scheme and the guidelines issued from time to time - SC Visit to Get Source Indian Laws: Dishonor of cheque - insufficiency of funds - discharge of legal liability or not - In the case of acquittal, there is double presumption in favour of the accused. An order of acquittal cannot be interfered with as matter of course. An order of acquittal can only be interfered with when there are compelling and substantial reasons for doing so. Only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of acquittal. - HC Visit to Get Source IBC: Initiation of CIRP - pre-admission stage - home buyers and creditors - corporate debtor has initiated the process of settlement with the financial creditors - whether, in terms of the provisions of the IBC, the Adjudicating Authority can without applying its mind to the merits of the petition under Section 7, simply dismiss the petition on the basis that the corporate debtor has initiated the process of settlement with the financial creditors? - HELD No - Matter restored before NCLT - SC Visit to Get Source IBC: Initiation of CIRP - NCLT admitted the application - Operational creditors - The pivotal plea taken on behalf of the Appellant is that the obligation of the ‘Corporate Debtor’ was to perform the export of goods and the liability arises when the ‘Contract’ was terminated on 30.04.2020 and when the ‘Corporate Debtor’ was directed to return the money. As such, the 1st Respondent cannot bring a default early to the date of 30.04.2020. - Appeal allowed - AT Visit to Get Source Service Tax: Refund of accumulated/unutilised Cenvat Credit of Service Tax - ‘nexus’ between the input services and the export services - Indisputably, in the refund proceedings under Rule 5 ibid as amended, any such attempt to deny or to vary the credit availed during the period under consideration is not permissible. If the quantum of the Cenvat Credit is to be varied or to be denied on the ground that certain services do not qualify as input services or on the ground of ‘no nexus’, then the same could have been done only by taking recourse to Rule 14 ibid - since the provisions of Rule 14 ibid have not been invoked, the refund of Cenvat Credit as claimed by the Appellant under Rule 5 ibid cannot be denied to them and the same is admissible. - AT Visit to Get Source Service Tax: Refund of CENVAT Credit - Section 142 (3) of GST Act provides how to deal with claims of refund of service tax of tax and duty / credit under the erstwhile law. It is stated that therein that such claims have to be disposed in accordance with the provisions of existing law and any amount eventually accruing has to be paid in cash - In the present case, there is no allegation that the credit is not eligible to the appellant. It is merely stated that tax has been paid voluntarily and therefore credit is not available under the GST regime. Though credit is not available as Input Tax Credit under GST law, the credit under the erstwhile Cenvat Credit Rules is eligible to the appellant. Such credit has to be processed under Section 142 (3) of GST Act, 2017 and refunded in cash to the assessee. - AT Visit to Get Source Central Excise: Refund of CENVAT Credit - As per the audit proceeding, the department was supposed to issue show cause notice which it failed to do so, therefore, there is no occasion and reason for appellant to file appeal before the Commissioner (Appeals). The only remedy is to claim the refund of such payment made as per the objection raised by the audit. As regard, the judgment relied upon by the appellant it is settled that unless and until the payment along with interest is made by the assessee and the same is intimated specifically in writing to the department, the case cannot be closed under Section11A (2) of Central Excise Act, 1944. - AT Visit to Get Source Central Excise: Refund of CENVAT Credit - In the present case, the appellant would be eligible to avail credit but for the introduction of GST law. The said right cannot be frustrated by pressing on the procedural requirement of filing TRAN-1 before 27.12.2017. The accounting practice adopted by the appellant allows to avail credit only after making payments to the vendors which has made it impossible to carry forward the credit as set out in the GST law. When the credit is eligible, the same cannot be denied by stating procedural requirements - AT Visit to Get Source Articles Contributions from members, recovered for spending on weekly meetings, other petty administrative expenses amounts to supply Notifications Customs 99/2021 - dated 17-12-2021 - Cus (NT) Amendment in Notification No. 98/2021-CUSTOMS (N.T.), dated 16th December, 2021 98/2021 - dated 16-12-2021 - Cus (NT) Supersession Notification No. 96/2021-Customs(N.T.), dated 2nd December, 2021 GST 01/2021 - dated 16-12-2021 - GST CESS Amendment in Notification No. 1/2018 (Goods and Service Tax Compensation) dated 14th November, 2018 GST - States 27/2021– State Tax - dated 14-12-2021 - Delhi SGST Delhi Goods and Services Tax (Fifth Amendment) Rules, 2021 17/2021-State Tax (Rate) - dated 7-12-2021 - Himachal Pradesh SGST Amendment in Notification No. 17/2017-State Tax (Rate), dated the 30th June, 2017 16/2021-State Tax (Rate) - dated 7-12-2021 - Himachal Pradesh SGST Amendment in Notification No. 12/2017-State Tax (Rate), dated the 30th June, 2017 15/2021-State Tax (Rate) - dated 7-12-2021 - Himachal Pradesh SGST Amendment in Notification No. 11/2017-State Tax (Rate), dated the 30th June, 2017 14/2021-State Tax (Rate) - dated 7-12-2021 - Himachal Pradesh SGST Amendment in Notification No. 1/2017-State Tax (Rate), dated the 30th June, 2017 13/2021-State Tax (Rate) - dated 7-12-2021 - Himachal Pradesh SGST Amendment in Notification No. . 1/2017-State Tax (Rate), dated the 30th June, 2017 Circulars / Instructions / Orders SEBI - SEBI/HO/DDHS/P/CIR/2021/0692 - dated 17-12-2021 Revision to Operational Circular for issue and listing of Non-convertible Securities, Securitised Debt Instruments, Security Receipts, Municipal Debt Securities and Commercial Paper SEBI - SEBI/HO/FPIC/P/CIR/2021/691 - dated 17-12-2021 Publishing of Investor Charter and Disclosure of Complaints by Custodians and DDPs on their websites DGFT - 43/2015-20 - dated 16-12-2021 Harmonising MEIS Schedule in the Appendix 3B (Table-2) with amended ITC (HS), 2017 News Delhi Customs seize outbound undeclared diamonds valued at ₹ 1.56 crore INDIA, KFW sign Euro 442.26 million loan for Surat Metro Rail Project It is possible to achieve a trillion dollars each of services and merchandise exports by 2030 – Shri Piyush Goyal MEASURES UNDERTAKEN TO BOOST MANUFACTURING SECTOR IN INDIA PLI SCHEMES EXPORT AND IMPORT OF MOBILE PHONES OBJECTIVES OF SETTING UP SEZs STATUS OF FREE TRADE AGREEMENTS LogiXtics - Unified Logistics Interface Platform’s (ULIP) Hackathon launched by Centre India’s rice exports rose by over 33% to 11.79 MT in first seven months of current FY, likely to surpass last FY’s record over 17MT Initiatives to boost domestic and foreign investments 3.59 crore Income Tax Returns filed on the new e-filing portal of the Income Tax Department Case Laws: GST 2021 (12) TMI 724 Classification of goods - CNG Dispenser manufactured and supplied by the Applicant - covered in SL. No. 422, Schedule III of Notification No. 1/2017-Central Tax (Rate) dated 28 June 2017 as amended and corresponding notification issued under integrated GST and State GST Act - HELD THAT:- The impugned product causes the CNG to flow from the filling station to the CNG Tank of the vehicle. Thus there is a flow of gas in one particular direction and it is the CNG Dispenser which is causing the CNG to move from one place to another. Thus the impugned product is also functioning as a pump in view of the definitions. It can therefore be said that CNG fuel dispensers are used for distribution of Compressed Natural Gas (CNG) which is a fuel and as per the submissions of the applicant, they are equipped with electronic counters of quantity and price of pumping. Chapter Heading 8413 11 of the GST Tariff covers Pumps for dispensing fuel or lubricants of the type used in filling stations or garages . The impugned product is designed to dispense fuel, in this case CNG, which are used in filling stations, and acts as a pump which causes CNG, a gas, to move from one place to another. Thus the impugned product can be said to be a type of pump which are used for dispensing fuel and are therefore classifiable under HSN 8413 11 91 of the GST Tariff - Section XVI of the GST Tariff covers Chapter Heading 84 and 85 of the GST Tariff. Note 1 (m) of the Section Notes states that, articles of Chapter 90 of the GST Tariff are not covered under Section XVI i.e. Chapters 84 and 85 of the GST Tariff. Further primary function of the impugned product is to dispense CNG Fuel and has an inbuilt mechanism to constantly measure and regulate the mass of Gas being transferred to the vehicle. The impugned product is covered under Chapter Heading 8413.11 of the GST Tariff, it is not covered under in SL. No. 422, Schedule III of Notification No. 1/2017-Central Tax (Rate) dated 28 June 2017 as amended as the impugned product cannot be classified under Chapter 90.32 of the GST Tariff. 2021 (12) TMI 723 Classification of goods - Rava Idli Mix - classified under chapter 21 with HSN 2106 9090 or not - HELD THAT:- The Tariff headings from 1101 to 1104 covers products of milling of specific cereals listed in Column(1) of the table, with a defined starch and ash content, and having a particular size/texture. In the instant case it is an admitted fact that the impugned product is manufactured by mixing the flours of certain cereals and pulses, the details of which have not been disclosed by the applicant, and hence it is a mixture and neither tallies with the content at column (1) of the above table nor meet the specific requirement of starch and ash content. Thus the compliance requirement is not fulfilled and hence the impugned product does not merit the classification under tariff headings from 1101 to 1104. Also the Tariff heading 1105 covers FLOUR, MEAL, POWDER, FLAKES, GRANULES AND PELLETS OF POTATOES, which is not the case with the impugned product. It is clear that Tariff heading 1106 covers flour, meal and powder of individual raw materials of either leguminous vegetables(of heading 0713) or roots or tubers(of heading 0714) or of products of Chapter 8. Like other tariff headings in the Chapter, tariff heading 1106 also covers products of individual raw material and not mixtures. Rava Idli mix is admittedly a mixture of flour of pulses, cereals and other ingredients resulting in a different product. Thus the impugned product does not get covered under this tariff heading i.e. 1106. In the instant case the impugned product is admittedly a mixture and does not give the character of either of the constituent flour but altogether a different new product with the different character as Rava Idli Mix . Therefore the impugned product is rightly classifiable under Rule 3(a) supra and hence Rule 3(b) is not applicable. Further as the impugned product is covered under rule 3(a), there is no need to look into rule 3(c) - the impugned product Rava Idli Mix merits classification under tariff heading 2106 and attract the GST rate of 18%, in terms of entry number 23 of schedule-III to the Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017 which covers all kinds of food mixes including instant food mixes. 2021 (12) TMI 722 Benefit of exemption from GST - Services of Commission Agent' for rice millers and traders - Supply of services which pertains to selling of agricultural produce as per APMC Act - Is there any special case where the applicant has to collect GST on the Service provided (Branded and unbranded)? - paragraph 2 (d) of Notification No. 12/2017 - Central Tax (Rate) dated 28-6-2017 - HELD THAT:- It is an admitted fact that the activity carried out by the applicant is Rice canvassing commission agent for Rice millers and traders and selling of Agricultural Produce (Rice) as per the Agricultural Produce Marketing Committee Act (APMC Act) of the State. In the instant case, the applicant is engaged in providing the services of Commission Agent' for rice millers and traders, where in applicant is of the opinion that the said transaction falls under entry at Si No. 54 of the Notification No12/2017-C.T. (Rate), dated 28.06.2017, and exempted from levy of GST. Clauses (a) to (f) of S1 No. 54 cover the services relating to agricultural operations, supply of farm labour, processing of agricultural produce, leasing of agro machinery and land, services relating to agricultural produce and agricultural extension services. Commission agent services do not fall in any of the said clauses, and the same is also not claimed by the applicant. In the instant case the product viz., rice is a product of milling process involving de-husking, steaming, de-browning, polishing, sorting etc. of paddy, which is a produce out of cultivation of plants. Thus, both rice and paddy are produce out of cultivation of plants. But rice and paddy are not the same as rice is the outcome of milling process of paddy. While rice is readily consumable, paddy when subjected to milling processes yield rice, husk and rice barn. Milling process is not normally done by the paddy producer or cultivator, but is undertaken by the millers. Milling process also changes the essential characteristics of the produce from paddy to rice, which are both distinctly identifiable and separately marketable commodities. Thus, the criteria (ii), and (iv) above are not satisfied in the instant case, in as much as the processing is not done by the cultivator or the producer and the essential character of the produce has also undergone change. Therefore, rice cannot be treated as agricultural produce in terms of para 2(d) of the said Notification, and the commission agent services for sale or purchase of rice does not fall in the ambit of SI.No. 54 of the Notification 11/2017-CT(Rate) dtd 28.06.2017 and therefore not eligible for any exemption from levy of GST. The services by a commission agent should be directly linked to the services relating to the cultivation and this is made amply clear by the use of the words by way of which links the cultivation process and the marketing process. The applicant is not assisting the cultivators of paddy, instead is assisting the manufacturers of rice/rice millers and traders, and hence the link is not established in this case. Hence the activity of the applicant is not covered under clause (g) of Entry No.54 of Notification No.12/2017- CT (rate) dated 28.06.2021 and hence is not exempted - the activity of the applicant in the instant case viz., the activity of canvassing for Rice as 'Commission Agent' is covered under SAC 9961. Further, the applicant is only charging service charges and not issuing sale invoices on behalf of the principals. Hence the activities of Commission Agent by canvassing for Rice by the applicant attracts Central Tax-CGST @ 9% and KGST @ 9% towards marketing of Rice' including 'branded Rice' also. It is pertinent to note that the applicant is providing the marketing service for Rice millers and traders supplying both branded and unbranded rice on a commission basis, the activities rendered by the applicant is taxable in terms of the provisions of CGST/KGST Act - hence the applicant is required to register in terms of section 22 of CGST Act, 2017 and is also required to discharge -CGST @ 9% and KGST @ 9% for which commission is received. 2021 (12) TMI 721 Classification of goods - Marine Engines - HSN Code 8407 and its spare parts exclusively used as part of fishing vessel of heading 8902 - levy of GST on supply of materials and labour charges incurred during the warranty period, free of cost - rate of tax for collection made towards supply of materials and labour charges towards repair of fishing vessels of heading 8902 - puff insulated ice boxes used by fishermen in fishing vessels for reducing spoilage and maintaining good hygiene - marine engine coming under HSN Code 8407 supplied to Defence Department for patrol, flood relief and rescue operations - HELD THAT:- It is an admitted fact that the applicant is classifying marine engines under Customs Tariff Heading 8407 21 00- Outboard motors -Marine Propulsion engines. Further the Fishing vessels, factory ships and other vessels for processing or preserving fishery products fall under Customs Tariff Heading 8902 and is liable to GST at the rate of 5% as per entry at SI.No.247 of Schedule I of Notification No.01/2017-Central Tax (Rate) dated:28.06.2017 - In the instant case, the applicant admitted to be supplying marine engines (HSN 8407 21 00) and spares for fishing vessels (HSN 8902) as parts of the same. The marine engines and spare parts used for fishing vessels (being part of the fishing vessel) attract 5% GST. If marine engine is supplied for use other than as parts of fishing vessels as stated above, the rate of GST is applicable under the respective Customs Tariff Headings in which they are classified. Whether GST leviable on supply of materials and labour charges incurred during the warranty period, free of cost? - HELD THAT:- During the warranty period the goods and service have been supplied to customers as free of charge. No separate consideration is charged and received at the time of replacement. This is because consideration for the same has been recovered at the time of supply of principal goods. However, the tax on the same would have been paid at the time of principal supply of goods; as such costs are included in the price of principal goods supplied. Therefore the replacement of the goods and service during the warranty period without consideration does not come under the purview of supply and no GST is leviable in such case. Rate of tax applicable for collection made towards supply of materials and labour charges towards repair of fishing vessel of heading 8902 - HELD THAT:- Though in the process of maintenance or repair of fishing vessels there is supply of goods/spare parts, there is no transfer of title in the goods/spare parts as such and hence the supply of goods/ spare parts are ancillary to the repair or maintenance of the fishing vessels. Hence the predominant element of the supply is not the transfer of title in goods/spare parts but that of service of repair or maintenance and the supply of goods/spare parts being ancillary/incidental to the activity of repair or maintenance it is appropriately classifiable under Heading 9987-998714 - Maintenance and repair of transport machinery and equipment under the Scheme of Classification of Services notified as Annexure to Notification No.11/2017 Central Tax (Rate) dated 28.06.2017 and is liable to GST at the rate of 18% (9%-CGST+9%-KGST) as per SI.No.25(ii) of the Notification No.11/2017 Central Tax (Rate) dated 28.06.2017. Rate of tax on puff insulated ice boxes used by fishermen in fishing vessels for reducing spoilage and maintaining good hygiene - HELD THAT:- The puff insulated ice boxes are appropriately classifiable under Customs Tariff Heading 3923 10 30 - Articles for the conveyance or packing of goods, made of plastics - Boxes, cases, crates and similar articles - Insulated ware. The said articles falling under Customs Tariff Head 3923 are liable to GST at the rate of 18% [9% -CGST +9%-KGST] as per entry at Sl.No.108 of Schedule III of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017. The ice box is used in the fishing vessels for storage of fish to reduce spoilage and to maintain freshness of fish during conveyance. The product cannot be considered as a part of fishing vessel falling under Customs Tariff Heading 8902 and hence is not eligible for the concessional rate of GST as per entry at Sl.No.252 of Schedule I of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017. Rate of tax on marine engine coming under HSN Code 8407 supplied to Defence Department for patrol, flood relief and rescue operations - HELD THAT:- The marine engines are supplied for use as part of vessels used by the Defence and other agencies for patrol, relief and rescue operations fall under Customs Tariff Heading 8906-Other vessels including warships and lifeboats other than rowing boats. As per entry at Sl.No.252 of Schedule I of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017 parts of goods of heading 8901,8902, 8904, 8905, 8906, 8907 falling under any chapter of the Customs Tariff attracts GST at the rate of 5%. Therefore, if the marine engines are supplied for use as part of vessel falling under Customs Tariff Heading 8906, which are used by the Department of Defense and other agencies for patrol, relief and rescue operations, then the marine engine as part of such vessel will only attract GST at the rate of 5% as per the said entry. 2021 (12) TMI 720 Classification of services - hospitality industry services - applicable GST SAC and GST rate - composite supply or a mixed supply - naturally bundled services or not - service exempt vide Notification No.12/ 2017-CT (Rate) dated 28-06-2017 - HELD THAT:- The applicant is providing boarding and lodging facilities and other services which are taxable under CGST Act 2017. The applicant has submitted few sample invoices raised by him towards the services provided by him to AMSL, which shows that he is raising 2 separate invoices, one towards hostel rent and one towards hostel food. Also from the agreement it is seen that the charges are defined separately for accommodation and for food and other facilities. Since the Applicant is raising separate invoices for the services supplied by him to AMSL, there is no provision of 'bundled services to AMSL by the applicant, but two separate supply of services. Since there is no provision of 'bundled services' by the applicant to AMSL, the same is not covered under the definition of 'composite supply.' Since the consideration received by the applicant is for providing boarding, lodging facilities and such other agreed services, the same may be considered as 'declared tariff as per Notification No. 12/2017- Central Tax (Rate) dated: 28.06.2017. The service of supply of food provided by the applicant is also covered under the above entry of the and hence attracts GST at 5%. 2021 (12) TMI 719 Time limitation for filing appeal - Cancellation of GST registration - taxpayer has not filed the due GSTR-3B returns - whether or not the appeal filed against the order of cancellation to be decided? - HELD THAT:- The appellant has filed returns upto date of cancellation of registration hence, the appellant has substantially complied with the above said provisions of the CGST Act/Rules, 2017 in the instant case - the registration of appellant may be considered for revocation by the proper officer. The proper officer is ordered to consider the revocation application of the appellant after due verification of payment particulars of tax, late fee, interest and status of returns - appeal disposed off. Income Tax 2021 (12) TMI 728 Deduction u/s 80IB in respect of common expenses of its Units at Pandicharry, Goa and Jammu - HELD THAT:- Tribunal followed the assessee s own case for the assessment years, namely, 2000-01 and 2001-02 and allowed the deduction as claimed under Section 80IB of the Act. As against the said order of the Tribunal, the revenue preferred appeal before this Court and the appeal preferred by the revenue in . was dismissed by [ 2009 (11) TMI 1017 - CALCUTTA HIGH COURT ] a judgement dated 20th November, 2009 on the ground of unexplained and inordinate delay. With regard to the assessment year 2002-03, the Tribunal granted relief to the assessee and the revenue carried the matter on appeal to this Court [ 2019 (9) TMI 1621 - CALCUTTA HIGH COURT] which was dismissed by judgement on the ground that no question of law arises for consideration. Thus, the decision rendered by the Tribunal does not call for any interference. Claim for deduction under Section 80IB on the sale of scrap - This issue is no longer res integra and there are several decisions which are in favour of the assessee and the Tribunal had followed the decision of this Court in the case of Reckitt Benckiser (India) Ltd. [ 2015 (2) TMI 506 - CALCUTTA HIGH COURT ] and granted relief to the assessee. We find that the revenue has not made out any ground to interfere with the said finding rendered by the Tribunal which is taken note of the correct legal position. Disallowance u/s 14A r.w.r. 8D - there were borrowed capitals and investments out of such borrowed funds were also made in making investments that yielded exempt income - HELD THAT:- Tribunal granted relief taking note of the decision in favour of the assessee by placing reliance in the case of Commissioner of Income Tax, Central-I, Calcutta vs- Ashish Jhunjhunwala [ 2015 (12) TMI 905 - CALCUTTA HIGH COURT ] The said decision lays down the correct legal principle. Therefore, there is no error in the order passed by the Tribunal. Appeal decided against revenue. 2021 (12) TMI 727 Nature of expenditure - Addition of Net Present Value - treating the Net Present Value as revenue expenses whereas true nature is capital expenditure - HELD THAT:- Substantial questions of law were considered by this Court in the case of group company of the respondent/assessee in dictum in Bikaner Gypsums Ltd. [ 1990 (10) TMI 2 - SUPREME COURT ] is squarely applicable in the present case. This is not a case where the assessee, upon payment of the NPV, obtaind a fresh right to undertake any business. That right of the assessee was covered by the licence previously granted in its favour by the State of Odisha. The NPV payment is a king of a compensation for using forest land for non-forest purpose pursuant to an order of the Supreme Court. The payment of the NPV in this case, like in the case of Bikaner Gypsums Ltd., has to be regarded as a revenue expenditure in accordance with the ration in the Bikaner Gypsums Ltd. case, since it was a one-time payment made to remove an obstacle from the path of the assessee carrying on its business operations. - Decided against revenue. 2021 (12) TMI 726 Addition on account of alleged on money received on sale of flats - search and seizure operation under section 132 - assessee is a resident company and is stated to be engaged in Real Estate Development - search and seizure operation under section 132 of the Income Tax Act, 1961 was carried out on 26.05.2011 in case of M/s Rohan Developers Pvt. Ltd. and other companies and entities promoted by Shri Haresh N Mehta and late Jitendra N. Mehta as well as in the residential premises of the Directors and employees of the entities being part of Rohan Group. - Based on the seized document and statement recorded, proceedings under section 153A of the Act was initiated in respect of the searched persons - HELD THAT:- To prove the content of seized document, the only other corroborative evidence available with the AO is the statements recorded from the Directors and employees of the Rohan Group. It is relevant to observe, in the statement recorded from Ms. Chaulla Joshi, a specific query was raised regarding the figures appearing against Siddhesh Jyoti E F Wing. In reply, it has been stated that the figures represent the quoted price for per square feet carpet area and the figure of ₹ 5,400/- represent rate per sq.ft. of built up area to arrive at the lump sum registered aggregate value. Except these evidences no other concrete evidence is available with the AO to establish on record that on money was actually received by the assessee. Therefore, proper enquiry has to be made with regard to the entries appearing in the name of Siddhesh Jyoti E F Wing, as mentioned in seized document. In course of hearing, it was brought to the notice of the Bench that based on the same seized document additions on account of on money was also made in case of Rohan Developers Pvt. Ltd. It was also brought to our notice that appeals relating to Rohan Developers Pvt. Ltd. involving identical issue have already been heard by the Tribunal. Decision in case of Rohan Developers Pvt. Ltd will have a crucial bearing on the issue involved in the present appeals, since, the additions therein have been made based on the very same seized document. In view of the aforesaid, we are inclined to restore the issue to the AO for fresh adjudication considering other materials on record including the orders passed by the Commissioner (Appeals) and Tribunal in respect of other group entities. Grounds are allowed for statistical purposes. 2021 (12) TMI 725 Revision u/s 263 by CIT - bogus purchases - assessee was reopened u/s 147 by issuing notice under section 148 after the AO received information from DGIT (Inv.) Mumbai that assessee is beneficiary of hawala purchase bills and accommodation entries - HELD THAT:- Undisputedly the issue of bogus purchases has been examined in the reassessment proceedings by the AO and after following the decision of CIT vs. Bolanath Polyfab Pvt. Ltd. [ 2013 (10) TMI 933 - GUJARAT HIGH COURT] and CIT vs. Simit P. Sheth [ 2013 (10) TMI 1028 - GUJARAT HIGH COURT] the AO has taken a view of 12.5% of the bogus purchases to be added to income. Thus the issue has been examined in detail in the reassessment proceedings and a reasonable view has been taken. According to the Ld. PCIT the assessment order is contrary as on the one hand the AO is holding that purchases are bogus whereas on the other hand the AO is applying a rate of 12.5% to tax the bogus purchases and thus came to the conclusion that the assessment order is erroneous and prejudicial to the interest of the revenue and thus set aside the assessment. In our considered opinion the revisionary proceedings initiated by Ld. PCIT appears to be not correct as he has tried to unsettle a settled position by setting aside the assessment order which is otherwise not erroneous and is in accordance with law and also in consonance with the decisions of High Court and co-ordinate Benches of the Tribunal. The case of the assessee is squarely covered by the decision of the co-ordinate Bench of the Tribunal in the case of Rahul Cables Pvt. Ltd.[ 2018 (5) TMI 2102 - ITAT PUNE] wherein similar issue has been decided in favour of the assessee by quashing the revisionary proceedings as well as the order under section 263 - Decided in favour of assessee. 2021 (12) TMI 718 Reopening of assessment post Application u/s 245D(4) accepted - Counsel submitted that the order passed under sub-section (4) of Section 245D of the Income Tax Act is a conclusive order and the same cannot be reopened in any of the proceedings - HELD THAT:- Issue notice of the writ petitions as well as stay applications, returnable on 24.01.2022. In the meanwhile, the respondents are restrained to proceed further in furtherance of the notices issued to the petitioners under Section 148 of the Income Tax Act and notice under sub section (1) of Section 142 of the Income Tax Act. 2021 (12) TMI 717 Residential status of assessee - grant of certificate of residence has been rejected by the authorities - benefit under the India-US double taxation avoidance agreement - dismissing the claim of the petitioner with respect to the grant of TRC [Tax Residency Certificate] - petitioner is a USA national, who has been appointed in India as a Dean-cum-Professor in O.P. Jindal Global University w.e.f. 01.01.2020 and owing to the Covid-19 pandemic, he departed from India on 21.03.2020 - HELD THAT:- Section 90 of the 1961 Act is an enabling provision for the Central Government to enter into an agreement with the Government of any country outside India for granting relief to the assessee in respect of various issues including for avoidance of double taxation of income. However, the relief of double taxation of income under the Treaty is subject to the condition of the assessee providing a certificate of his being a resident in any country outside India or specified territory outside India as enumerated under Section 90(4) of the 1961 Act. In order to claim benefit from double taxation as provided under Article 22 of the Treaty, the petitioner is required to submit a certificate of him being a resident in country out side India i.e. USA in the present case from the Government of USA. The claim of the petitioner is totally misfound. The objective of the Treaty is to avoid double taxation and not to avoid taxation. In order to claim benefit in India, the petitioner has to provide TRC from the Government of USA which admittedly he does not possess. Case of the petitioner in our view is hit by Section 90(4) of the 1961 Act which contemplates that a non-resident assessee claiming benefit under the double taxation avoidance agreement is not entitled for such benefit unless the said assessee obtains TRC from the country of which he is resident. In the absence of TRC as contemplated under Section 90(4) of the 1961 Act and having his source of income based in India, the petitioner cannot claim exemption under Article 22 of the Treaty. WP dismissed. 2021 (12) TMI 716 Addition u/s 68 - bogus LTCG - Penny stock purchases - ITAT deleted the addition - HELD THAT:- Tribunal has held that no enquiry had been conducted and the assessee s broker had not even been examined by the authorities below before passing the impugned orders. The ITAT also held that the scrips of M/s CCL International Ltd. were freely traded at the Bombay Stock Exchange between the years 2011 and 2014 and the assessee had purchased the shares in 2011 and sold the same in 2012. ITAT also found that the revenue from the operation of M/s CCL International Ltd. from March, 2010 to March, 2012 was between ₹ 55.25 crores to ₹ 79 crores and the share price during the period 2010 to 2014 had increased from ₹ 50 per share to ₹ 609 per share. This Court is of the view that there is no perversity in any of the findings given by the Tribunal. The Supreme Court in the case of Ram Kumar Aggarwal Anr. vs. Thawar Das [ 1999 (8) TMI 1008 - SUPREME COURT ] has reiterated that under Section 100 of the Code of Civil Procedure, the jurisdiction of the High Court to interfere with the orders passed by the Courts below is confined to hearing on substantial question of law and interference with finding of the fact is not warranted if it involves re-appreciation of evidence. Supreme Court in Hero Vinoth (Minor) vs. Seshammal [ 2006 (5) TMI 478 - SUPREME COURT ] has also held that in a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. It has also held that there is a difference between question of law and a substantial question of law . Consequently, this Court finds that there is no perversity in the findings of the ITAT. Appeal dismissed. 2021 (12) TMI 715 Income accrued in India - DTAA between India and Switzerland - deduct tax @ 10% on dividend income to be paid to the Petitioner for the relevant Financial Year - HELD THAT:- As in the present writ petition are no longer res integra as they are fully covered by the judgments of this Court in Concentrix Services Netherlands B.V. [ 2021 (4) TMI 1051 - DELHI HIGH COURT ] as well as in Nestle SA [ 2021 (4) TMI 1267 - DELHI HIGH COURT ] In Concentrix Services Netherlands B.V. [ 2021 (4) TMI 1051 - DELHI HIGH COURT ] it has been held that no separate notification is required insofar as the applicability of the protocol is concerned and the same forms an integral part of the Convention. It is well settled law that the Department cannot refuse to follow binding jurisdictional decision merely on the basis that the Department proposes to file an appeal. The Supreme Court in UOI v. Kamlakshi Finance Corpn Ltd. [ 1991 (9) TMI 72 - SUPREME COURT ] has held that order of higher appellate authorities should be followed unreservedly and mere fact that decision is not acceptable to the Revenue cannot be a ground for not following the decision of higher authority. Keeping in view the aforesaid, the impugned order and certificate are set aside and the respondent is directed to issue a certificate under Section 197 of the Act indicating therein, that the rate of tax, on dividend, as applicable qua the Petitioner is 5% in India v/s Switzerland DTAA as held in Nestle SA (Supra) which was also under the India-Switzerland DTAA 2021 (12) TMI 714 Validity of reopening of assessment u/s 147 - notice against company non existing - notice to company had ceased to exist having been amalgamated with petitioner - HELD THAT:- The notice issued under Section 148 of the said Act to a non existing company is bad in law and therefore, even the order disposing of the objections passed will also be bad in law. The Principal Chief Commissioner is directed to hold an enquiry against the concerned officers as to why despite being brought to their notice that Vadinar Power Company Limited is a non existing entity having been amalgamated with petitioner notices were continued to be issued in the name of Vadinar Power Company Limited and even the order disposing of the objections came to be passed in the name of Vadinar Power Company Limited resulting in the notice under Section 148 of the said Act itself being quashed. The Principal Chief Commissioner, after holding an enquiry, may take such action as required against the erring officers, if found guilty. 2021 (12) TMI 713 Nature of receipts - sale of Carbon Emission Reduction (CER) also known as Carbon Credits - revenue or capital receipts - HELD THAT:- As decided in S.P. SPINNING MILLS PVT. LTD.[ 2021 (1) TMI 1081 - MADRAS HIGH COURT] such receipt should be treated as a capital receipt. As decided in MAHESHWARI DEVI JUTE MILLS LIMITED [ 1965 (4) TMI 10 - SUPREME COURT] amount received out of sale of loom-hours can be termed as capital receipt and not income out of business. - Decided in favour of assessee. 2021 (12) TMI 712 Refund claim after adjustment of the tax liability for the aforesaid assessment year - petitioner had not filed returns either under Section 139(1) or within the extended period under Section 139 (4) - Mandation to issue notice u/s 147 - petitioner filed an application u/s 119 for condoning the delay in filing the return so as to claim refund of the excess amount of tax - HELD THAT:- Reading of Section 237 makes it clear that there is no limitation prescribed for filing a refund of income tax. As far as filing of returns beyond the period of limitation prescribed under Section 139 (1) and 139 (4) for efficient management of the work of assessment and collection of revenue, The Central Board of Direct Taxes may issue general or special order under Section 119 of the IT Act, 1961 - The Central Board of Direct Taxes has issued circulars Under Section 119 of the IT Act, 1961 from time to time. The facts on record indicate that the petitioner, being an income tax assessee had failed to file returns in time. The second respondent or the Jurisdictional Assessing Officer ought to have issued notice under Section 148 of the IT Act, 1961 on or before 31.03.2018 for the assessment year 2011-12 as there would have been a prima-facie presumption that income had escaped assessment for the aforesaid assessment year. The petitioner initially made an attempt to file a return belatedly before the second respondent on 26.02.2015. This return naturally could not have been accepted as it was beyond the period of limitation prescribed under Section 139 of the IT Act, 1961. In this case, the petitioner has approached the first respondent under Section 119 of the IT Act, 1961 on 29.08.2018 with a request for adjustment of the tax Directorate source and for refund of the amount. It would have been different if the application under Section 119 was made to claim exemption for the first time after the returns were filed in time and after the period prescribed for revising the assessment had expired, where the assessment had attained finality. Where no return was filed, it was incumbent on the part of the second respondent or the Jurisdictional Assessing Officer as was expected to have issued a notice under Section 148 to the petitioner within the time prescribed under the Act, in which case, the question of the petitioner filing an application before the first respondent under Section 119 of the IT Act, 1961 would have arisen at all. Since the law mandates a particular thing to be done in a particular manner, it was incumbent on the part of the second respondent or the Jurisdictional Assessing Officer ought to have issued a notice under Section 148 to determine the tax liability of the petitioner. As this was not done, case deserves to be remitted back to the second respondent to first finalize the assessment of the petitioner for the assessment year 2011-12 within a period of three months from the date of receipt of copy of this order. Failure to issue a notice under Section 148 of the IT Act, 1961, cannot be to the prejudice of the petitioner, if ultimately it is found that petitioner was entitled to a refund. However, liberty is given to penalise the petitioner for failure to file returns in time and for levy of interest if any. Respondents are therefore, directed to examine the refund claim independently and pass appropriate orders within a period of three months from the date of receipt of copy of this order. WP allowed. 2021 (12) TMI 711 Refund Claim with Interest u/s 244A read with section 153 and section 240 - petitioners submits that it is the grievance of the petitioners that their claim for refund and sanction of the amount claimed by them has not been processed and no orders has been passed by the respondents so far. As such, the petitioners are before this Court by way of the present petition - respondents submits that if reasonable time is given to the respondents, they would take necessary steps to process the claim of the petitioners in accordance with law - HELD THAT:- We deem it just and appropriate to dispose of the writ petition directing the respondents to process the claim of the petitioners to refund of the excess amount in accordance with law as expeditiously as possible within a period of three months from the date of receipt of the copy of this order. 2021 (12) TMI 710 Reopening of assessment u/s 147 - Addition u/s 68 - assessee had received some share capital from some foreign parties - money was actually undisclosed income of the assessee, which had been recycled by the said entity into the company of the assessee - CIT-A deleted the addition as this material could not be held to be justified for adding the amount of investment into the company as income of the assessee also confirmed by ITAT - HELD THAT:- As even if for the sake of arguments this assertion is accepted, the crux of the matter is whether the conclusion that the entity was a shell company, could inevitably give rise to the subsequent conclusion that the money received from that company was actually undisclosed income of the assessee without any material to show any link between the said entity and the assessee. Learned counsel for the appellant - revenue has argued that under Section 68 of the I.T Act, such a presumption can be drawn and it was for the assessee to prove that the income was infact not his income. In our considered opinion this argument is too far-fatched It may have been different if some link had been established between the said entity and the assessee, but in the absence thereof, it cannot be held that the presumption under Section 68 of the IT Act, is available. No fault can be found with the judgments of the Commissioner and the Tribunal. - Decided against revenue. 2021 (12) TMI 709 Disallowance towards employees contribution towards ESI and PF - disallowance made u/s 143 (1) on assessee s failure to pay the employees contribution of ESI PF within the prescribed due date under the relevant Statute as per section 36(1) - scope of amendment - HELD THAT:- It is not in dispute that employees contribution to ESI and PF collected by the assessee from its employees had been deposited well before the due date of filing of return of income u/s 139 (1) of the Act. We find that the issue is squarely covered by the decisions of the Hon ble Rajasthan High Court, Hon ble Himachal Pradesh High Court as well as Hon ble Punjab Haryana High Court. We further note that though the Id. CIT(A) has not disputed the various decisions of Hon ble High Courts including the decision of the jurisdictional Himachal Pradesh High Court but has referred to the amendment brought in by the Finance Act, 2021. It is a consistent position across various Benches of the Tribunal including Chandigarh Benches that the amendment which has been brought in by the Finance Act, 2021 shall apply w. e. f. assessment year 2021 - 22 and subsequent assessment years and the impugned assessment year being assessment year 2018- 19, the said amendment cannot be applied in the instant case. Therefore the addition made by way of adjustment while processing the return of income u/s 143 (1) of the Act, amounting to ₹ 11,99,710/- so made by the CPC towards the deposit of employees contribution towards ESI and PF paid before the due date of filing of the return of income u/s 139 (1) of the Act, is hereby directed to be deleted. - Decided in favour of assessee. 2021 (12) TMI 708 Reopening of assessment u/s 147 - addition made on account of loss on exchange rate difference - addition solely on the basis of his view that rate of dollar adopted by assessee at ₹ 40/- per dollar while making payment on the same date, the rate was taken at ₹ 41.92 per dollar which is not in accordance with rate prescribed by RBI - whether assessee has suppressed loss and circulated black capital as the purchase rate at the time of purchase as well as the exchange rate at the time of payment are not taken in accordance with the prevailing Foreign Exchange Rate declared by the RBI for the date of Import and the date of payment? - HELD THAT:- We find that in the statement of fact, the Assessing Officer recorded that the case of assessee was re-opened on audit objection. The re-assessment order was passed after verification and consideration of submission made by assessee. We find that re-opening on audit objection is not valid as it has been held by Hon'ble jurisdictional High Court in the case of Torrent Power of SEC Ltd [ 2016 (12) TMI 871 - GUJARAT HIGH COURT] . However, we are conscious of the fact that issue is not raised before us for our consideration. CIT(A) after appreciation on the fact held that Assessing Officer made the addition without understanding the accounting and facts of the case. CIT(A) held that assessee was right in booking the purchase at the custom rate which is fixed for some period as per trading norm and same point of method is followed by Custom Department for charging custom duty on the imported goods as the RBI rate fluctuating in daily at the time of actual payment in foreign exchange for imported bills. The assessee had adopted actual rate, which the bank has debited to their accounts and it is the rate taken by the bank during the day, the trading rate which almost very closed to rate of RBI - all purchases of the assessee was settled during the year by payment through credit so difference, if any, booking rate at the time of purchase automatically being settled in the year itself in the profit and loss account - if the view of AO is accepted then the purchases would be booked at the time of RBI s fixed rate and when actual payment will be made, the exchange rate difference would be less and the purchase cost would be increased by corresponding amount which is evident from the observation of AO as he has computed foreign exchange loss of ₹ 3.08 Crores in place of 1.91 Crores calculated by assessee. CIT(A) also held that the allegation of Assessing Officer is that assessee circulated black money is baseless and impounded. Thus, we do not find any infirmity or illegality in the order passed by ld. CIT(A), which we affirm accordingly. - Decided against revenue. 2021 (12) TMI 707 TDS u/s 195 - Disallowance of sales commission paid to foreign agents u/s 40(a)(i) for non-deduction of tax at source - AO noticed that the assessee has paid sales commission to overseas agents located in Austria and Italy but has not deducted tax at source from the commission so paid - HELD THAT:- As the foreign agents have given certificates that they have received commission only for getting orders - assessee has mentioned about the necessity of appointing agents by stating that Agents are needed because of their knowledge in the respective country s leather garments market, the competitive rates, the need and latest fashion trends, the design and quality of the products to be sold. Ultimately, the assessee has received sales orders through the agents and the impugned commission payments have been made to the foreign agents for getting sales orders. Hence, the sourcing commission paid cannot be considered as fee for technical services. Thus the tax authorities are not correct in law in holding that the commission was paid to the agents for rendering technical services in the form of managerial services. Thus, it shall constitute business income in their respective hands. There is no dispute that these foreign agents do not have permanent establishment in India and hence under Article 7 of India and Austria DTAA as well under Article 7 of India Italy DTAA, no business profit is taxable in India. Since no income out of commission payment is chargeable to tax in India in the hands of foreign agents, there is no requirement of deducting tax at source u/s 195 - disallowance made u/s 40(a)(i) in all the three years is not justified. - Decided in favour of assessee. Nature of expenditure - Disallowance of payments made for software purchase - AO held that there was enduring benefit on purchase of computer software and it to be capital expenditure and allowed depreciation thereon - HELD THAT:- We notice that the Ld A.R is placing reliance on a case law in order to contend that software purchase is allowable as revenue expenditure. However, as rightly pointed out by Ld D.R, the assessee has not furnished any details relating to the computer software purchased by it. The assessee has not furnished the copy of contract entered with the supplier, nature of software purchased etc. Accordingly, in the absence of factual details, it will not be possible to apply the ratio of decision rendered in the case of IBM India Ltd [ 2013 (10) TMI 1225 - KARNATAKA HIGH COURT] - We notice that the AO has allowed applicable depreciation on the software purchases treated as capital expenditure. Accordingly, we do not find any reason to interfere with the decision rendered by Ld CIT(A) on this issue. 2021 (12) TMI 706 Revision u/s 263 by CIT - Addition u/s 56(2) - assessee issued/allotted 560000 Equity shares at premium of ₹ 50/- each and as per CIT value of shares as per NAV method was ₹ 42.60/- as per CIT action of the AO in accepting the method of valuation contrary to Rule 11UA of the Rules was erroneous and prejudicial to the interest of the Revenue and Assessee did not give any valuation report as required under Rule 11UA of the Rule.- Whether AO called upon the assessee to show cause as to why the provisions of Sec.56(2)(viib) of the Act should not be applied? - HELD THAT:- It is no doubt true that as per explanation to section 56(2)(viib) of the Act apart from the determination of FMV of shares under Rule 11UA of the Rules, intrinsic value is also one of the methods prescribed method as per Sec.56(2)(viib) (a)(ii) of the Act, but the higher of the valuation as per Sec.56(2)(viib)(a) (i) or (ii) has to be considered by the AO before applying those provisions. The admitted position in the present case is that the assessee did not file any valuation report to substantiate the fair market value of shares issued in terms of Sec.56(2)(viib) (a)(i) of the Act and Rule 11UA of the Rules. In such circumstances, we are of the view that the AO could not have accepted the intrinsic value without calling for a value in terms of Rule 11UA of the Rules to find out whether class (i) or class (ii) of explanation (a) to Sec.56(2)(viib) of the Act would be applicable - Thus the order of the AO was erroneous. With regard to the argument that the money was received in the previous year relevant to Assessment Year 2014-15 and therefore the provisions of section 26(2)(viib) of the Act were not application to Assessment Year 2015-16, the admitted position is that the shares were issued in Assessment Year 2015-16 and this would be the appropriate year in which the applicability of provisions of section 56(2)(vii) of the Act should be considered. In this regard, we place reliance on the decision of M/S. Taaq Music Private Limited [ 2020 (10) TMI 28 - ITAT BANGALORE] in which the view as stated above was laid down by the Tribunal. We, therefore, find no merit in the appeal by the assessee. 2021 (12) TMI 705 Exemption u/s 11 - assessee society is registered u/s 12A and is also notified u/s 80G - Whether activities of the assessee are commercial in nature and squarely fall under the General Public Utility and hits the proviso to Section 2(15)? - assessee is engaged in imparting educating and training paramedics in the field of first aid, home nursing, hygiene safety and first-aid, fire safety, health and stress management, heart mark and care with CPR system, health management with diabetes care and Aids and Disaster management etc. - HELD THAT:- It is apparent from the activities of the assessee that it is imparting First Aid training to students, schools, companies and institutions etc and in lieu thereof, charging fees from participants. We find that the receipts shown by the assessee are in the nature of fees for rendering services. These facts have not been disputed by the AO. Objects of General Public Utility do not fall under any of these specific categories explicitly included in the definition of Advancement of any other object of General Public Utility u/s 2(15) of the Act. There is no denial that the assessee society is imparting education and therefore, in our considered opinion, proviso to section 2(15) of the Act is not applicable to the assessee on the facts of the case. The undisputed fact is that the assessee has been granted exemption since past many years and the nature of activities have not changed since its inception. Therefore, we do not find any reason why the Assessing Officer has taken a different view during the year under consideration. Considering the facts of the case in totality, in light of assessment history of the assessee, we do not find any merit in the appeal of the Revenue and the same is dismissed. 2021 (12) TMI 704 Disallowance of consultation fees on an adhoc basis - assessee company is engaged in the business of trading in computer hardware, software products and services - This is the second round of proceedings before this Tribunal - In the first round of proceedings, Tribunal had set aside this issue to the file of the AO for denovo consideration - assessee had always pleaded that these technicians had possessed requisite skill sets and the assessee had been using their services on hire basis as and when there is a requirement instead of providing employment on a permanent basis to them - HELD THAT:- Assessee had always pleaded that these technicians had possessed requisite skill sets and the assessee had been using their services on hire basis as and when there is a requirement instead of providing employment on a permanent basis to them. AO identified eight parties to be produced before him in the remand proceedings and they were all produced by the assessee along with their affidavits before the ld. AO. These parties are listed in page 3 of the ld. CIT(A) s order. Apart from this, the assessee also furnished the chart showing the details of sales / service charges received, consultancy charges claimed, consultancy charges allowed and consultancy charges disallowed by the ld. AO from A.Yrs. 2003-04 to 2008-09. AO had sought to disallow the consultancy charges on an estimated basis only during the year under consideration and no disallowance was made either in earlier years or in subsequent years. Even going by the rule of consistency as upheld in the case of Radhasaomi Satsang [ 1991 (11) TMI 2 - SUPREME COURT] when there is no change in the facts and circumstances of the case, the Revenue is not bound to take a divergent stand during a particular year alone. Admittedly, the modus operandi practiced by the assessee had not changed in hiring of consultants on need basis and deploying them at the respective client location to render services on behalf of the assessee and remunerate them in the form of consultancy charges. The books of accounts produced by the assessee had not been rejected by the lower authorities. The assessee had furnished all the relevant documents that could be filed to prove the genuineness of consultancy charges from its side. The ld. AO had not pointed out any defect in the said details or had not found any defect in the books produced by it together with supporting evidences. Hence, there cannot be any justification on the part of the lower authorities to make any disallowance of expenses on an estimated basis. - Decided in favour of assessee. 2021 (12) TMI 703 Income from house property - combined two flats construed as one residential house - whether two flats purchased by the assessee could be construed as one house in the event of it having one kitchen, among others ? - Disallowing the benefit u/s 23(2) to the residential house purchased and used as one residential unit for self use and thereby disallowing the loss from income from self occupied house - HELD THAT:- Undisputedly in the instant case before us, both the Flat Nos.1502 and 1503 have got only one kitchen and there is only one entrance in the entire house. In view of these undisputed facts and respectfully following the aforesaid decision of the Hon ble Jurisdictional High Court in DEVDAS NAIK [ 2014 (7) TMI 173 - BOMBAY HIGH COURT] , we hold that both flats should be construed as one residential house and annual value of the same should be determined at nil being self-occupied house property. Accordingly, the addition made by the ld. AO is hereby directed to be deleted. The grounds raised by the assessee are allowed. 2021 (12) TMI 702 Addition on payment of rent to director and wife of director u/s 40A(2)(b) - HELD THAT:- The issue is covered in favour of the assessee as ITAT in assessee s own case [ 2017 (3) TMI 1053 - ITAT MUMBAI] has decided the issue in favour of the assessee. It is not the case that order of ITAT has been reversed by Hon ble Bombay High Court. Hence, respectfully following the precedent, we uphold the order of Ld.CIT(A) - Decided against revenue. Addition of expenditure on provision for construction cost of various sites in view of mercantile system of accounting - matching concept of accountancy provision - assessee claim is that actually the expenditure is incurred in the next year, however in order to comply with matching principle/concept of accountancy, it has recognized proportionate expenditure during the year - CIT(A) deleted the additions and agreed with the assessee s contention that in order to comply with the matching concept, the booking of the expenditure as provision was justified - HELD THAT:- As expenditure has to be accounted only when it has been incurred i.e either paid or it is accrued. If the expenditure is not accrued merely on the basis of matching principle any amount cannot be provided. The case laws referred by the Ld.CIT(A) also deal with the expenditures which have actually accrued. The Hon ble Courts have held that expenses can be said to have been incurred only if they have accrued. Nowhere, it is provided that without accrual expenditure should be provided merely on matching concept. We note that Ld.CIT(A) has not at all given a finding that the quantum of the expenditure worked by the assessee had actually accrued. Merely because the expenditure is incurred in the next year, on the plank matching principle assessee cannot book a good portion of the expenditure during the year to adjust the profit as per its desire. Expenditure can be provided only, if the expenditure has actually accrued. Since in this case, Ld.CIT(A) has not given any finding that the expenditure has accrued, we deem at appropriate to remit the issue to the file of the Ld.CIT(A). The Ld.CIT(A) shall examine the issue afresh and give a finding whether the expenditure allowed by him can be considered to be the expenditure which is accrued during this year - With these directions, we remit the issue to the file of the Ld.CIT(A) - Appeal by the revenue partly allowed for statistical purpose. 2021 (12) TMI 701 Unexplained cash credit u/s. 68 - assessee failed to establish any cash credits in the books of accounts - assessee received amount from accommodation entries and converted them from unaccounted money to accounted money - HELD THAT:- In the instant case, the credit is in the form of receipt of share capital from share applicants. The nature of receipt towards share capital is seen from the entries passed in the respective balance sheets of the companies as share capital and investments. In respect of source of credit, the assessee has to prove the three necessary ingredients i.e. identity of share applicants, genuineness of transactions and creditworthiness of share applicants. For proving the identity of share applicants, the assessee furnished the name, address, PAN of share applicants together with the copies of balance sheets and Income Tax Returns. With regard to the creditworthiness of share applicants, we noted that these Companies are having capital and reserves and the investment made in the assessee company is only a small part of their capital. These transactions are also duly reflected in the balance sheets of the share applicants, so creditworthiness is proved. Even if there was any doubt if any regarding the creditworthiness of the share applicants was still subsisting, then AO should have made enquiries from the AO of the share subscribers. In the facts and circumstances of the case as discussed above, no addition is warranted under Section 68 - Decided in favour of assessee. 2021 (12) TMI 700 Reopening of assessment u/s 147 - disallowance of excessive depreciation - Depreciation on Electrical installation casting @ 15% as claimed or @ 10% as allowed by the A.O. - HELD THAT:- As per the mandate of law even where a concluded assessment is sought to be reopened by the A.O within a period of 4 years from the end of the relevant assessment year, it is must that the A.O has fresh material or information with him that had led to the formation of belief on his part that the income of the assessee chargeable to tax has escaped assessment. . As regards the view taken by the CIT(A) that as the issue in question i.e entitlement of the assessee company for claim of depreciation on electrical installations was not looked into by the A.O in the course of the original assessment proceedings, therefore, in the absence of any formation of a view by the A.O the concept of change of opinion could not be brought into play, the same we are afraid does not find favour with us. As decided in the case of Dell India (P) Ltd. [ 2021 (2) TMI 37 - KARNATAKA HIGH COURT] an oversight, inadvertence or mistake of assessing officer or error discovered by him on reconsideration of the same material tantamounts to a mere change of opinion and, the same does not give him power to reopen a concluded assessment. As the A.O for the reasons discussed at length hereinabove had wrongly assumed jurisdiction and reopened the concluded assessment of the assessee company i.e without satisfying the mandate of law as required u/s 147 of the Act, therefore, the reassessment order passed by him u/s 143(3) r.w.s 147, dated 23.09.2013 cannot be sustained and is liable to be struck down. - Decided in favour of assessee. 2021 (12) TMI 699 Application u/s 154 - grant of interest u/ 244A - credit for the amount self- assessment tax that was omitted to be given in the intimation issued by the department u/s 143(1)(a) - HELD THAT:- Both the lower authorities had proceeded on the basis of misconceived and incorrect facts. As stated by the ld. A.R, and rightly so, the A.O instead of giving effect to the directions that were issued by the CIT(A), wherein he was directed to verify the facts and grant interest u/ 244A as per law, had instead passed an order u/s 154 On a perusal of the order passed by the A.O u/s 154 we find, that he despite having been specifically directed by the CIT(A) to verify the facts and grant the interest u/s 244A as per law, however, had failed to give effect to the said directions by way of a speaking order and had summarily observed that interest under the said statutory provision was only to be calculated on the refund arising out of TDS, TCS and Advance Tax paid by the assessee company. On appeal, we find that the CIT(A), being of the view that the impugned order before him was an order passed by the A.O u/s 154 of the Act declining the assessee s request for rectification, had thus, proceeded with on the basis of the said misconceived factual position and had dismissed the assessee s appeal, for the reason, that the claim of the assessee did not fall within the realm of a mistake apparent from the record within the meaning of Sec. 154 We concur with the claim of the ld. A.R that both the lower authorities had proceeded with the matter on the basis of misconceived and incorrect facts. We, thus, in the totality of the facts involved in the case before us restore the issue to the file of the A.O who shall comply with the directions given by the CIT(A) which read as that A.O has not granted interest u/s. 244A on the refund ranted on rectification order passed u/s 154 of the I.T. Act, 1961. It has been pointed that the A.O has passed the rectification order u/s 514 of the I.T. Act, 1961 giving credit of ₹ 50 lacs paid as self assessment tax by the appellant without granting interest u/s 244A Assessee shall in the course of the set-aside proceedings remain at a liberty to substantiate its entitlement for interest u/s 244A on the amount of the self-assessment tax of ₹ 50 lac. As we have restored the matter to the file of the A.O for re-adjudication, therefore, we refrain from adverting to the contentions advanced by the ld. A.R as regards the merits of the case - Appeal of assessee is allowed for statistical purpose 2021 (12) TMI 698 Revision u/s 263 by CIT - claim of depreciation on motorcars and interest paid on car loans - HELD THAT:- The depreciation so claimed and the interest expenditure on loan availed for purchasing the motorcars have been allowed in the earlier assessment years. It is a fact on record that in the impugned assessment year, the assessee claimed depreciation on the opening WDV. Therefore, once depreciation on the assets have been allowed in the preceding assessment years, the AO could not have disallowed the depreciation claimed on the opening WDV. Simply because the motorcars are registered in the name of the Directors of the company the claim of depreciation cannot be disallowed, if it is established that the motorcars are actually owned by the assessee and used in its normal course of business, though, purchased in the name of the Directors. The assessee has also furnished evidence to show that payment for the purchase of motorcars was on assessee s account and the EMI for loan availed were paid by the assessee from the its bank account. Even, the motorcars have been shown as fixed assets in assessee s books of account - there was no reason for the AO to disallow assessee s claim of depreciation. In any case of the matter, the judicial precedents cited before us by learned Counsel for the assessee clearly say that even if vehicles are registered in the name of directors or partners for certain restrictions/conditions under the Motorcar Vehicle Act, however, if such assets, for all intent and purpose, belong to the company and are used for its business, the company would be eligible to claim depreciation. View taken by the AO in allowing assessee s claim of depreciation and interest expenses can be considered to be a plausible view. That being the case, assessment order cannot be held as erroneous. Thus, the twin conditions of section 263 of the Act remain unsatisfied. For this reason the impugned order passed by learned PCIT cannot be sustained. - Decided against revenue. 2021 (12) TMI 697 Income accrued/taxable in India - Tax Resident - Taxability of investment of unexplained income in specific residential properties in India - taxability of income arising from immovable property - scope of Indo UAE tax treaty - assessee is an Indian national fiscally domiciled in, and tax resident of, the United Arab Emirates for over three decades - whether unexplained investments, even if that be so, can be taxed in India upon investment in India, even when he is not carrying out any income generating activities in India ? - whether CIT(A) erred in considering the interest income to be taxable under article 22 of India-UAE DTAA not under article 11 of the treaty? - HELD THAT:- The plea that the India- UAE treaty provides for taxability of income arising from immovable property, this plea is contextually irrelevant inasmuch as what we are dealing with right now is not an income from the immovable property, but an income said to have been invested in an immovable property. The plea is thus devoid of any legally sustainable merits. As for article 23(1), which refers to taxation of capital represented by immovable property, the said article refers to taxation of capital but does not provide, as learned Departmental Representative seem to suggest, for taxation by virtue of investment in the immovable property. The assessee before us is certainly an Indian national, but he is admittedly resident in the UAE so far as his residential status, under the Indo UAE tax treaty is concerned, is of the UAE tax resident. The residuary taxation rights, in terms of the treaty provisions, belong to the residence jurisdiction, but even if that was not to be so, the residence rights can at best go to the source jurisdiction, which in turn refers to a jurisdiction in which the income is earned, rather than a jurisdiction in which the income is invested. By no stretch of logic, therefore, such an income could be taxed in India, which is neither residence nor source jurisdiction; it is at best investment jurisdiction. However, the scheme of tax treaties limits the rights of taxation either to residence or to source jurisdiction. As for the alleged interest income, there is no finding whatsoever to suggest that there was indeed any interest income inasmuch as even the Assessing Officer is tentative when he states that the related entry probably refers to interest receipt. The taxability of interest is, even by the standards of the revenue authorities, also thus far from established. There is no evidence whatsoever, or even a serious allegation, that there is an interest income. The assessee before us is a tax resident of the United Arab Emirates and is thus entitled to the benefits of the Indo UAE tax treaty. When the rights to tax the income in question, under the applicable tax treaty provisions, are allocated to the residence jurisdiction, it is wholly immaterial whether or not the source jurisdiction has the right to tax that income, and, in any event, India is not even a source jurisdiction for the income in question as no economic activities have been carried out in India- it is at best the jurisdiction in which earnings are invested. That cannot anyway have any bearing on the taxation of income. In our considered view, therefore, since, under the terms of the Indo UAE tax treaty, the right to tax the amounts in question, even if that be of income nature in the hands of the present assessee, does not belong to India, all these issues being raised by the learned counsel are wholly academic as of now, and do not call for our adjudication. Having said that, however, in due deference to the legitimate rights of the assessee, we make it clear that, if so necessary in future, the assessee will be at liberty to raise these issues. We approve the well-reasoned conclusions arrived at by the learned CIT(A) and decline to interfere in the matter. 2021 (12) TMI 696 Addition of interest paid as expenditure in connection with business activities with certain suppliers of goods, job workers for manufacturing of goods of the appellant and added in the returned income - A.O. had not allowed deduction as business expenditure of interest paid on borrowings which had been given to other companies as well as firms in connection with the continuation of business i.e business expediency - HELD THAT:- Three ingredients are required for allowing interest paid which are as there should be borrowing of funds, borrowing should be for business purpose, and there should be payment of interest. The assessee fulfills all the above three conditions, as the assessee borrowed the funds from the bank as well as other, the borrowing was for the business purposes only and interest thereon was paid to the Bank as well as to others also. As all are the business transactions either of purchases/sale/Job work as well as payments/receipts through banks as the case may be in the business/Commercial expediency. In the business transaction neither the assessee paid any interest on delay payments against consideration to the above suppliers on their sale/Job Works, if any, nor charged any interest from them on delay payments received either as sale consideration or advances in connection with the commercial expediency. Considering the totality of facts and circumstances of the case, mater placed on record and the case laws relied upon by the ld. AR, we found merit in the contentions raised by the assessee and the ld. DR has not brought on record any new material to rebut or controvert the submissions and documents placed before us, therefore, we direct to delete the disallowances confirmed by the ld. CIT(A) - Decided in favour of assessee. Disallowance of interest to Bajaj Finance Ltd. - HELD THAT:- Assessee has taken finance from Baja] Finance Limited in 2011. The repayment was made accordingly to the monthly installment. As per the provisions, the assessee has debited TDS deducted on the interest paid in the account of the company. The assessee time and again required M/s Bajaj Finance Limited to reimburse the same. However, in spite of the repeated request no such reimbursement of the tax deducted at source was made. Accordingly during the year claimed the amount of TDS as interest in the profit loss account. As the non recovery of the same is decided during the year, the same is current year expenditure and allowable during the year. However, the interest was deposited in the year under consideration, it must be allowed in any one of the years either the year under consideration on account of payment or in the preceding year being the relevant year, if the expenditure is allowed in this year under consideration even though there would be no any loss of revenue to the department because the rate of tax is one and the same for both the assessment years. Considering the totality of facts and circumstances of the case, we direct to delete the disallowance confirmed by the ld. CIT(A) - Decided in favour of assessee. 2021 (12) TMI 695 Levy of late fee u/s. 234E - Fee for default in furnishing statements - delay in filing statement of TDS within the prescribed time - conflicting views - HELD THAT:- It is not in dispute that if the ratio laid down in the case of Fateeraj Singhvi [ 2016 (9) TMI 964 - KARNATAKA HIGH COURT] is applied then the levy of interest u/s.234-E of the Act would be illegal for returns of TDS in respect of the period prior to 1.6.2015. The present appeals of the Assessee relate to TDS returns filed prior to 1.6.2015 and therefore levy of interest u/s.234E of the Act would not be valid, following the ratio laid down by the Hon ble Karnataka High Court. The Hon ble Bombay High Court in the case of Subramaniam -vs.- Siemens India Ltd.[ 1983 (4) TMI 3 - BOMBAY HIGH COURT ] held that in the case where there is conflict of views between different High Courts, authorities must follow the decision of the High Court within whose jurisdiction he is functioning. The Court further added that in cases where there is a conflict between the decisions of non-jurisdictional High Courts, the ITO must take the view which is in favour of the assessee and not against him. Relief should not be refused to the taxpayer merely because there was a conflicting decision of a non-jurisdictional high court - we are of the view that the levy of interest u/s.234E of the Act in the present case cannot be sustained and the same is directed to be deleted and the appeals of the Assessee are allowed. 2021 (12) TMI 694 Addition u/s 41(1) - as assessee has not written off the outstanding liability in the books of account and are still in existence. Therefore, it was contended that the assessee has acknowledged his liabilities as per the books of account - HELD THAT:- In the instant case, admittedly, it is loan creditors and not a trading liability. So, the assessee has not obtained allowance or deduction in computing the profits and gains of business or profession in respect of assessment of any year. Therefore, the first condition enumerated u/s 41(1) of the I.T.Act does not have application to the facts of the instant case. Hence, the addition made by the A.O. and sustained by the CIT(A) is deleted. - Decided in favour of assessee. Disallowance of depreciation on motor car and revolver - Disallowance of interest on car loan - business v/s personal expenses - claims made by the assessee was disallowed by the A.O. by holding that these are personal in nature - HELD THAT:- AR during the course of hearing had fairly submitted that the assessee did not place necessary evidences for claiming depreciation and interest before the Income Tax Authorities. Even before the ITAT, no evidence are placed on record for claiming deduction / disallowance. Hence, the claim of deduction of depreciation and interest is sustained. - Decided against assessee. 2021 (12) TMI 693 Delayed employee s share of contribution to PF and ESI - scope of amendment to the provisions of Sec.36(1)(va) and Sec.43B of the Act, by the Finance Act, 2021 - HELD THAT:- Hon ble Karnataka High Court in the case of Essae Teraoka Pvt. Ltd.,[ 2014 (3) TMI 386 - KARNATAKA HIGH COURT] has taken the view that employee s contribution u/s 36(1)(va) of the Act would also be covered under section 43B of the Act and therefore if the share of the employee s share of contribution is made on or before due date for furnishing the return of income under section 139(1) of the Act, then the assessee would be entitled to claim deduction.Therefore, the issue is covered by the decision of the Hon ble Karnataka High Court. Whether the amendment to the provisions to section 43B and 36(1)(va) of the Act by the Finance Act, 2021, has to be construed as retrospective and applicable for the period prior to 01.04.2021 also? - We find that the explanatory memorandum to the Finance Act, 2021 proposing amendment in section 36(1)(va) as well as section 43B is applicable only from 01.04.2021. These provisions impose a liability on an assessee and therefore cannot be construed as applicable with retrospective effect unless the legislature specifically says so. In the decisions referred to by us in the earlier paragraph of this order on identical issue the tribunal has taken a view that the aforesaid amendment is applicable only prospectively i.e., from 1.4.2021. We are therefore of the view that the impugned additions made under section 36(1)(va) of the Act in both the Assessment Years deserves to be deleted. Appeal of assessee allowed. 2021 (12) TMI 692 Delayed Employees share of contribution to Provident Fund (PF) - contribution not paid on or before the due date as mentioned in Sec 36(1)(va) - Scope of amendment to section 36(1)(va) and Sec.43B of the Act, by the Finance Act, 2021 - HELD THAT:- Hon ble Karnataka High Court in the case of Essae Teraoka Pvt. Ltd.,[ 2014 (3) TMI 386 - KARNATAKA HIGH COURT] has taken the view that employee s contribution under section 36(1)(va) of the Act would also be covered under section 43B of the Act and therefore if the share of the employee s share of contribution is made on or before due date for furnishing the return of income under section 139(1) of the Act, then the assessee would be entitled to claim deduction.Therefore, the issue is covered by the decision of the Hon ble Karnataka High Court. T Whether the amendment to the provisions to section 43B and 36(1)(va) of the Act by the Finance Act, 2021, has to be construed as retrospective and applicable for the period prior to 01.04.2021 also? - We find that the explanatory memorandum to the Finance Act, 2021 proposing amendment in section 36(1)(va) as well as section 43B is applicable only from 01.04.2021. These provisions impose a liability on an assessee and therefore cannot be construed as applicable with retrospective effect unless the legislature specifically says so. In the decisions referred to by us in the earlier paragraph of this order on identical issue the tribunal has taken a view that the aforesaid amendment is applicable only prospectively i.e., from 1.4.2021. We are therefore of the view that the impugned additions made under section 36(1)(va) of the Act in both the Assessment Years deserves to be deleted. Appeal of assessee allowed. 2021 (12) TMI 691 Late remittance of employees contribution to PF and ESI - difference between the returned income and the assessed income u/s 143(1) - HELD THAT:- Bangalore Bench of the Tribunal in the case of M/s. Shakuntala Agarbathi Company [ 2021 (10) TMI 1196 - ITAT BANGALORE] by following the dictum laid down by the Hon ble jurisdictional High Court in the case of Essae Teraoka Pvt. Ltd Vs. DCIT [ 2014 (3) TMI 386 - KARNATAKA HIGH COURT] had held that the assessee would be entitled to deduction of employees contribution to PF and ESI provided that the payments were made prior to the due date of filing of the return of income u/s 139(1) of the I.T.Act. It was further held by the ITAT that amendment by Finance Act, 2021, to section 36[1][va] and 43B of the Act is not clarificatory. The amended provisions of section 43B as well as 36(1)(va) of the I.T.Act are not applicable for the assessment year under consideration.Accordingly, we direct the A.O. to grant deduction in respect of employees' contribution to ESI since the assessee has made payment before the due date of filing of the return of income u/s 139(1) - Decided in favour of assessee. 2021 (12) TMI 690 Additional depreciation claimed by the assessee company @ 10% in respect on new plant machinery acquired by it after September 30, 2012 (AY 2013-14) - Number of days asset is used - quantum of additional depreciation allowable in respect of these assets was restricted to 50 percent of 20 percent of the actual cost of machinery in assessment year 2013-14 in view of the restrictive provision provided under the Act (i.e. as per the second proviso to section 32(1) - HELD THAT:- It is pertinent to note that this issue is already considered by the Hon ble Madras High Court in case of Brakes India Pvt. Ltd. [ 2017 (4) TMI 511 - MADRAS HIGH COURT] and M/s Aztec Auto Pvt. Ltd. . [ 2020 (9) TMI 541 - MADRAS HIGH COURT] and further the additional depreciation claimed was already imbibed in Section 32(1) (iia) of the Act. Thus, the additional depreciation is allowable depreciation and the amendment is not applicable in present assessment year i.e. A.Y. 2014-15 in assessee s case. Further, no distinguishing facts were presented before us by the Ld. DR. Therefore, Ground Nos. 1 and 2 are allowed. 2021 (12) TMI 689 Revision u/s 263 by CIT - Eligibility of claim of deduction u/s 54B - CIT directing assessing officer to make fresh investigations with regard to claim of deduction u/s 54B - HELD THAT:- We note that in assessee`s case under consideration, the assessee has received part payment in advance in the financial year 2011-12, and the said part payment so received in advance, was utilized by the assessee in purchasing another agricultural land therefore assessee is entitled to claim exemption under section 54B - These facts were examined by the assessing officer while making the assessment under section 143(3) of the Act, therefore, assessment framed by the assessing officer should not be erroneous. We are very much conscious of landmark decision of Malabar Industries Ltd. [ 2000 (2) TMI 10 - SUPREME COURT] wherein their Lordship have held that twin conditions needs to be satisfied before exercising revisional jurisdiction u/s 263 - it has to be remembered that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. When the Assessing Officer adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the Assessing Officer has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue unless the view taken by the Assessing Officer is unsustainable in law. We are of the view that none of the reasons set out by the ld PCIT for invoking the jurisdiction u/s 263 of the Act are sustainable. The impugned order of the ld PCIT has to be quashed for the reason that order of the Assessing Officer sought to be revised in the impugned order was neither erroneous nor prejudicial to the interest of the revenue for the reason of any lack of inquiry that the Assessing Officer ought to have made in the given facts and circumstances of the case - Decided in favour of assessee. 2021 (12) TMI 665 Disallowance on account of late payments towards EPF and ESI u/s 36(1)(va) - scope of amendment - HELD THAT:- Since the facts of the present cases are identical to the facts involved in RAJA RAM [ 2021 (11) TMI 370 - ITAT CHANDIGARH] therefore respectfully following the earlier orders as referred to herein above of the different Benches of the ITAT, the impugned additions made by the Assessing Officer and sustained by the Ld. CIT(A) on account of deposits of employees contribution of ESI PF prior to filing of the return of income u/s 139(1) of the Act, in both the years under consideration prior to the amendment made by the Finance Act, 2021 w.e.f. 1.4.2021 vide Explanation 5, are deleted. - Decided in favour of assessee. Customs 2021 (12) TMI 688 Seeking return of petitioner s passport - Section 104 of the Customs Act in connection with offences punishable under Sections 132 and 135 thereof - HELD THAT:- There are no substance in the stand of the respondents that if the passport is returned to him, he will flee the country. In fact, Mr. Dandekar, learned advocate for the petitioner is right in his contention that it is for the precise purpose of leaving this country that return of the petitioner s passport is required and that is his prayer. Additionally, the petitioner has been in India for nearly four years. One does not know whether his visa is valid or not. Overstaying could lead to punishable offences. This is an additional ground why the passport ought to be returned to ensure that an individual such as the petitioner may leave the country soon. The writ petition stands disposed of with a direction upon the respondent no. 2 to return the passport of the petitioner to him within a fortnight from date, provided an approach in this behalf is made together with a copy of this order. 2021 (12) TMI 687 Penalty u/s 112 of CA - amount not exceeding the duty sought to be evaded on such goods - quantification of amount involved in the case - HELD THAT:- The Commissioner, depending upon the role each one of the individuals covered in paragraph 6 of the order has played/exercised his jurisdiction, discretion and imposed penalty. The penalty imposed on individuals dealt with in paragraph 6 of the order dated 13.04.2015 varies from ₹ 15 crore to ₹ 1 lakh. When it comes to subject Officers, the Commissioner refrained from imposing penalties. Therefore, this begs the very question, namely, whether the Commissioner has properly and correctly exercised the jurisdiction vested in him by Section 112 of the Act. First question that may come out for consideration before the Tribunal is not whether the penalty imposed on a particular individual is justified etc., but, the question is whether the non-imposition of penalty on respondent is tenable and in accordance with law. In the particular circumstances of the case, the question for decision before the Tribunal is: Whether refraining from imposition of penalty is valid and legal? The question is de hors fiscal limits and pure question of law. The order under appeal is set aside. Matter remitted to CESTAT for consideration and disposal in accordance with law, along with the appeal pending in the matter of Anil Kumar - answered in favour of the appellant and against the respondent. 2021 (12) TMI 686 Refund - Concessional rate of duty - import of Prawn feed shrimp larvae feed and fish feed in pellet form, powder form etc. - exemption under duty vide serial No.107 of custom notification No.12/2012 dated 17.03.2012 as amended from time to time - HELD THAT:- The impugned communication, the notifications and the communications of the DRI which led to the petitioner paying the amount, are perused. At the outset it may be mentioned the impugned communication cannot be construed as an order. It was incumbent on the part of the respondent to issue a proper show cause notice to the petitioner to show cause as to why refund claimed should not be rejected under one of the grounds. The documents filed by the petitioner indicates that the imports were made by the petitioner long before the amounts were paid by the petitioner pursuant to DRI Investigation. The amounts paid by the petitioner during the investigation has to be treated as amount paid under protest . Therefore, the question of filing an appeal against the respective Bills of Entry cannot be countenanced. In any event, merits of the refund claim of the petitioner would require a proper determination on facts and therefore, the second respondent was required to issue proper show cause notice to the petitioner giving the reasons why refund claim filed by the petitioner should not be rejected. Rejection of the refund claim of the petitioner merely based on a intra-departmental communication is not sufficient. There is no other option to remit the case back to the second respondent to issue a proper show cause notice to the petitioner preferably within a period of 60 days from date of receipt of this order setting out the grounds as to why the refund claim of the petitioner should not be rejected - Petition allowed. 2021 (12) TMI 685 Levy of penalty on Advocate - Seeking deletion of para from order of the Commissioner of Customs (Appeals) - objective of imposing penalty is only to impress upon the appellant that they ought to be more careful in future and do justice to their role and duties rather than take shelter behind technicalities and advocates who think they can defend the indefensible by giving their own skewed understanding of the law and misguiding appellants - HELD THAT:- The legal profession is of vital importance not only to the administration of justice but also for the rule of law good governance; lawyers are to the civil society what soldiers are to the frontiers of a nation; lawyers profession is the only profession constitutionally recognized; Marcus Tullius Cicero centuries ago called this profession as the noble profession ; lawyers lend voice to the voiceless; they stand unfazed during social tumult; our Freedom Struggle was led by lawyers; our Constitution is the child of great legal brains; of course, others too have contributed a lot, cannot be denied; the great principles of governance and constitutional doctrines like the doctrine of Basic Structure are the contribution of tall lawyers; it is they who draw the chariot of law justice; words fall short to extol the greatness of this profession. In some occasions that are marked by their rarity, one may transcend the traditional contours of professional conduct; but this happens even with adjudicators as well; the ultimate object is to do justice to the cause; it hardly needs to be stated that the judgments orders should not be written with a pen dipped in acid; after all acidity affects health; the acidic words rob away the living beauty of the scripts; viewed from this angle, the highlighted portion of the observations in the subject order need to be expunged; it is in the best interest of both the stakeholders, namely, Bar the Bench; such expunction would only add to the beauty of the order in question which is meticulously texted with appreciable articulation. Petition allowed. 2021 (12) TMI 684 Refund claim of Special Additional Duty (SAD), under Customs Act, in lieu of sales tax - rejection on the ground of time limitation - HELD THAT:- The facts are not in dispute and admittedly, the appellant importer has filed refund claim after more than one year or may be by few days more, from the date of payment of SAD. Hon ble Delhi High Court judgement in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [ 2014 (4) TMI 870 - DELHI HIGH COURT] has held that Section 27 was understood as not applying to SAD refund cases, even though it was in the statute book for many years. Yet, with the introduction of the circular and then the notification (No.93), the Customs authorities started insisting that such limitation period which was prescribed with effect from 1.8.2008 (by notification ) became applicable. Following the decision of the Hon ble High Court of Delhi and hold that the appellant is entitled to the refund, as their right to claim refund of duty in terms of the Notification has accrued only when the sale took place. The findings of the Hon ble Delhi High Court clearly show understanding of the department with regard to clause of limitation, provided in the Notification. The condition of limitation was not the part of the original notification. It was only with the introduction of Circular No. 6/2008-Cus. and Notification No.93/2008, the department started insisting on the limitation period (of one year) prescribed with effect from 1.8.2008, became applicable. The Hon ble High Court has clearly held that the expression so far as may be used in sub-section (6) of Section 3 of CTA, has to be followed to the extent possible. Merely because Section 27 of the Customs Act provides for a period of limitation for filing refund claim, it cannot be held that even for the purposes of claiming refund in terms of the Notification, the same limitation has to be applied. The Hon ble Delhi High Court has also held that in the matters which deal with substantive rights, such as imposition of penalties and other provisions that adversely affect statutory rights, the parent enactment must clearly impose such obligations; subordinate legislation or Rules cannot prevail or be made, in such case. Appeal allowed - decided in favor of appellant. Corporate Laws 2021 (12) TMI 682 Interference from acting as Director and Vice Chairman of the Appellant Company - Section 184 r/w Section 167 of Companies Act. Whether K C Nuwal contravened the provision of Section 184(1) of the Act, if yes consequences? - HELD THAT:- In Section 184(1) deals the occasions when the director is required to disclose his concern or interest in any company or companies or bodies corporate, firms or other associations of individuals. In the present case, K C Nuwal was required to disclose his interest in AGT Company when he acquired the shares i.e. on 02.05.2019 in a prescribed form MBP-1. Undisputedly, K C Nuwal vide email dated 03.05.2019 informed Khushboo Pasari that he became the director in AGT from 02.05.2019 and requested to inform RoC and others. Thereafter, vide email dated 28.06.2019 informed Khusbhoo Pasari that he has acquired 31,76,751 shares in AGT. It is true that K C Nuwal has not furnished information in prescribed form i.e. MBP-1. We are of the view that K C Nuwal has substantially complied with the requirement of Section 184 (1) of the Act. Non-compliance of Section 184(1) has no link with Section 167 of the Act. Section 184(4) of the Act provides that if a director of the company contravenes the provisions of sub-section (1) or sub-section (2), such director shall be punishable with imprisonment for a term which may extend to one year or fine which may extend to one lakh rupees, or with both. Thus, non-compliance of Section 184(1) would not lead to automatic vacation of the office as director of the Company. Whether K C Nuwal contravened the provisions of Section 184(2) of the Act, if yes consequences? - HELD THAT:- It is an admitted fact that on 07.11.2019 in the board meeting after discussion it was resolved to take the premises of AGT on rent for the Appellant Company. Admittedly in this board meeting K C Nuwal was not present. According to Ld. Sr. Counsel for the Appellant in the agenda of the board meeting one of the item for discussion was to take the AGT premises on rent and the agenda was served on K C Nuwal. Therefore, even if, he was not present in the meeting, it be presumed that constructively he was present in the meeting - K C Nuwal has not contravened the provisions of Section 184(2) of the Act. Therefore, he is not liable for the consequences as provided under Section 167 (1) (c) and (d) of the Act. Whether the Tribunal ordered for reinstatement of K C Nuwal as director under Section 242 (4) of the Act? - HELD THAT:- The Tribunal by the impugned order issued an injunction from implementation of notice dated 30.07.2020. The Tribunal has not passed any order of reinstatement of K C Nuwal as director. The Tribunal while exercising the powers under Section 242 (4) of the Act, on the Application of any party to the proceedings, make any interim order which he thinks fit for regulating the conduct of the company affairs upon such terms and condition as appear it to be just and equitable. In the facts of the present case the interim order is just and equitable. Whether without deciding the issue of quasi partnership, such interim relief cannot be granted? - HELD THAT:- It is argued on behalf of the Appellant that Ld. Tribunal without giving finding that the Appellant Company is a quasi partnership could not grant interim relief, as prayed by K C Nuwal - We are unable to convince with this argument, while granting the interim relief Ld. Tribunal has only examined the legality of the letter (notice) dated 30.07.2020 and granted the relief in reference to this letter. Appeal dismissed. Insolvency & Bankruptcy 2021 (12) TMI 683 Initiation of CIRP - pre-admission stage - home buyers and creditors - corporate debtor has initiated the process of settlement with the financial creditors - whether, in terms of the provisions of the IBC, the Adjudicating Authority can without applying its mind to the merits of the petition under Section 7, simply dismiss the petition on the basis that the corporate debtor has initiated the process of settlement with the financial creditors? - HELD THAT:- On a bare reading of the provision, it is clear that both, Clauses (a) and (b) of sub-Section (5) of Section 7, use the expression it may, by order while referring to the power of the Adjudicating Authority. In Clause (a) of sub-Section (5), the Adjudicating Authority may, by order, admit the application or in Clause (b) it may, by order, reject such an application. Thus, two courses of action are available to the Adjudicating Authority in a petition under Section 7. The Adjudicating Authority must either admit the application under Clause (a) of sub-Section (5) or it must reject the application under Clause (b) of sub-Section (5). The statute does not provide for the Adjudicating Authority to undertake any other action, but for the two choices available. In Innoventive Industries [ 2017 (9) TMI 58 - SUPREME COURT ], a two-judge Bench of this Court has explained the ambit of Section 7 of the IBC, and held that the Adjudicating Authority only has to determine whether a default has occurred, i.e., whether the debt (which may still be disputed) was due and remained unpaid. If the Adjudicating Authority is of the opinion that a default has occurred, it has to admit the application unless it is incomplete. In the present case, the Adjudicating Authority noted that it had listed the petition for admission on diverse dates and had adjourned it, inter alia, to allow the parties to explore the possibility of a settlement. Evidently, no settlement was arrived at by all the original petitioners who had instituted the proceedings. The Adjudicating Authority noticed that joint consent terms dated 12 February 2020 had been filed before it. But it is common ground that these consent terms did not cover all the original petitioners who were before the Adjudicating Authority - the Adjudicating Authority did not entertain the petition on the ground that the procedure under the IBC is summary, and it cannot manage or decide upon each and every claim of the individual home buyers. The Adjudicating Authority also held that since the process of settlement was progressing in all seriousness , instead of examining all the individual claims, it would dispose of the petition by directing the respondent to settle all the remaining claims seriously within a definite time frame. The petition was accordingly disposed of by directing the respondent to settle the remaining claims no later than within three months, and that if any of the remaining original petitioners were aggrieved by the settlement process, they would be at liberty to approach the Adjudicating Authority again in accordance with law. The Adjudicating Authority s decision was also upheld by the Appellate Authority, who supported its conclusions. The order of the Adjudicating Authority, and the directions which eventually came to be issued, suffered from an abdication of jurisdiction. The Appellate Authority sought to make a distinction by observing that the directions of the Adjudicating Authority were at the pre-admission stage , and that the order was not of such a nature which was prejudicial to the rights and interest of the stakeholders - the Adjudicating Authority failed to exercise the jurisdiction which was entrusted to it. A clear case for the exercise of jurisdiction in appeal was thus made out, which the Appellate Authority then failed to exercise. Appeal allowed - decided in favor of appellant. 2021 (12) TMI 681 Initiation of CIRP - NCLT admitted the application - Operational creditors - The pivotal plea taken on behalf of the Appellant is that the obligation of the Corporate Debtor was to perform the export of goods and the liability arises when the Contract was terminated on 30.04.2020 and when the Corporate Debtor was directed to return the money. As such, the 1st Respondent cannot bring a default early to the date of 30.04.2020. - HELD THAT:- As seen from the I B Code, 2016 an Adjudicating Authority does not decide a suit/money claim and the CIRP is not determined by the Court . In the initial stage, an Adjudicating Authority is required to take appropriate steps for Resolution of the Corporate Debtor under Insolvency . No wonder, Resolution Process is not a Litigation by any stretch of imagination. In the instant case, the application under Section 9 of the I B Code (IBA/35/KOB/2020) was filed on 16.09.2020. The Section 8 Demand Notice to the Corporate Debtor was sent by WhatsApp and email on 01.08.2020 and further that the said Notice, by way of caution was sent through speed post on 04.08.2020 which was received by the Corporate Debtor on 10.08.2020, as averred by the 1st Respondent/Operational Creditor in Part IV of its application at Sl.No.8 - Corporate Debtor before the Adjudicating Authority had taken a stand that there was no Contract or agreement between the parties in regard to the award of Interest at 18%, as claimed by the Operational Creditor and that the object of I B Code, 2016 is not a recovery of money and the frustration of contract, reasons for failure of export, inspection of goods on account of Covid lock down require detail rumination in fixing the liabilities of the Corporate Debtor. In short, according to the Corporate Debtor , there exists a Dispute and the determination of Default require and elaborate examination of facts and letting in of evidence to be adduced by the respective parties. In regard to the facts of the present case on hand are even though the Date of Default was on 03.01.2020, the application under Section 9 of I B Code was filed by the Operational Creditor/Applicant before the Adjudicating Authority on 16.09.2020 wherein the Operational Creditor had claimed a total amount of debt USD 1,13,500 payable by the Corporate Debtor to it including interest at 18% per annum amounting to USD 13,500 as on 31.08.2020, in view of the fact that the contract was terminated on 30.04.2020, there being a dispute in regard to the contract for delivery of goods (in respect of supply of cashew kernels) between the parties, the threshold limit under Section 10A of the Code for initiation of CIRP is ₹ 1 Crore (vide Notification to Section 4 of the Code dated 24.03.2020, in the instant case, the Default claimed from Corporate Debtor is USD 1,00,000 and interest @ 18% per annum amounting to USD 13,500 and the interest being denied by the Corporate Debtor there being no contract for paying the interest between the parties) and this Tribunal taking note of the fact that under the Contract the amount was due and payable on 25.04.2020, comes to a consequent conclusion that as per provision of Section 10A, the application filed by the Operational Creditor /petitioner under Section 9 of the Code is not maintainable. The Adjudicating Authority will now close the proceedings and is required to fix the Fee of the Interim Resolution Professional and that the Corporate Debtor is required to pay the Fees for the period the Interim Resolution Professional had discharged his duties. Appeal allowed. 2021 (12) TMI 680 Initiation of liquidation process of the corporate debtor - Section 33(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In terms of the Regulation 6(1) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the said Interim Resolution Professional made a public announcement in the Form-A, which was published in the newspapers namely, the Business Standard (English) in Delhi/NCR edition and Business Standard (Hindi) in Delhi/NCR edition on 30.10.2019. The said public announcement was uploaded on the website of the Insolvency and Bankruptcy Board of India (IBBI). In the circumstances and there being no other alternative, this Bench is inclined to accept the Resolution of the COC and order Liquidation of the Corporate Debtor - Liquidation of the Corporate Debtor, M/s. Victory Infratech Private Limited is allowed in the manner as laid down in the Chapter III of Part II of the Insolvency and Bankruptcy Code, 2016 and in accordance with the relevant Rules and Regulations - application allowed. 2021 (12) TMI 679 Dissolution of the Corporate Debtor - Section 54 of the Insolvency and Bankruptcy Code, 2016, r/w Regulations 44 and 45 of IBBI (Liquidation Process) Regulations, 2016 - HELD THAT:- Since all the assets of the CD have been completely liquidated, this Authority in exercise of the powers conferred under Sub-section (2) of Section 54 of the I B Code, 2016, hereby orders the dissolution of the Corporate Debtor, viz, M/s. MCCL PETROCHEM PRIVATE LIMITED from the date of this order, and the Corporate Debtor stands dissolved. Consequently, the Liquidator stands relieved. The Liquidator and the Registry are directed to send the copy of this order within 7 days from the date of pronouncement to the RoC with which the Corporate Debtor is registered - Application disposed off. 2021 (12) TMI 678 Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Non-performing assets - time limitation - HELD THAT:- For an Application under Section 7 of IBC, it is article 137 of the Limitation Act, which applies and hence the time begins to run from the date on which the Applicant/Corporate Debtor is declared as NPA. In that case 21.07.2011. It was held that since it is beyond three years, the Application under Section 7 of IBC would be time barred - In this case, since there is no denial of the fact that, the Corporate Debtor was declared as NPA on 30.06.2002, the time for the purpose of limitation, starts from the said date which long expires by the date of filing this Application i.e., 05.06.2020. In order to prove that the debt due to the Financial Creditor is acknowledged by the Corporate Debtor, the Counsel draws the attention of this Tribunal to the Balance Sheet filed by the Corporate Debtor on 31.03.2020 wherein the debt due to the Financial Creditor is shown - contention of the Counsel is that since, the dispute is pending before the DRT, the same is shown as non-current liability and unless the DRT adjudicates the liability of the Petitioner it would not become a debt. This Tribunal finds good amount of force in the said argument. Apart from that, the amount shown is ₹ 62,05,337/- which is well below the pecuniary jurisdiction of the Tribunal, which is ₹ 1 Crore as on the date of fling the Petition. The Company petition is filed beyond the period of limitation specified under Article 137 and cannot be entertained - petition dismissed. PMLA 2021 (12) TMI 677 Money Laundering - seeking grant of anticipatory bail - creation of shell companies - bogus bank accounts - Section 50 of PMLA, 2002 - HELD THAT:- Applicants before this Court are employees of Union Bank of India, Raipur posted at Ramsagarpara and Pandri Branches respectively. Applicants No.1 2 were posted in Ramsagarpara Branch, applicant No.3 was posted in Pandri Branch and applicant No.2 is posted at Pandri Branch. Allegations against them are that they being officials got the 446 bank accounts (in both branches) opened without properly following procedure prescribed and without verifying documents annexed along with account opening application forms. Allegation against applicants is that they verified application forms for opening of bank accounts. There is specific submission by learned counsel for both sides that there is no requirement of custodial interrogation of applicants. Considering nature of accusation in instant crime and background of applicants, without commenting anything on merits of case, the benefit of anticipatory bail granted to applicants, subject to conditions imposed - application allowed. Service Tax 2021 (12) TMI 676 Refund of accumulated/unutilised Cenvat Credit of Service Tax - denial on the ground of no nexus between the input services and the export services - initiation of proceedings under Rule 14 of CCR - Rule 5 of Cenvat Credit Rules - HELD THAT:- It is well settled legal position that denial of Cenvat Credit can be done only by issuing notice under Rule 14 ibid. Having allowed the Cenvat Credit or by not denying the same, the department cannot reject refund of Cenvat Credit under Rule 5. It is well settled principle that availment of Cenvat Credit, its utilisation and refund are different aspects dealt with under CCR, 2004. Rule 5 provides for any refund of Cenvat Credit and nowhere in this Rule there is a provision to determine the correctness about the availment of Cenvat Credit. Its only Rule 14 ibid which provides for recovery of irregularly availed Cenvat Credit. It is well settled principle that availment of Cenvat Credit, its utilisation and refund are different aspects dealt with under CCR, 2004. Rule 5 provides for any refund of Cenvat Credit and nowhere in this Rule there is a provision to determine the correctness about the availment of Cenvat Credit. Its only Rule 14 ibid which provides for recovery of irregularly availed Cenvat Credit. There are force in the submission of learned Counsel that since availment of credit has not been questioned by the department in terms of Rule 14 ibid, the refund benefit cannot be denied on the ground of non-establishment of nexus between input and the output services. Indisputably, in the refund proceedings under Rule 5 ibid as amended, any such attempt to deny or to vary the credit availed during the period under consideration is not permissible. If the quantum of the Cenvat Credit is to be varied or to be denied on the ground that certain services do not qualify as input services or on the ground of no nexus , then the same could have been done only by taking recourse to Rule 14 ibid - since the provisions of Rule 14 ibid have not been invoked, the refund of Cenvat Credit as claimed by the Appellant under Rule 5 ibid cannot be denied to them and the same is admissible. Appeal allowed - decided in favor of appellant. 2021 (12) TMI 675 Refund of CENVAT Credit - refund claim was rejected by the adjudicating authority stating that the tax has been voluntarily paid and that no credit is eligible in the GST regime - reverse charge mechanism - HELD THAT:- It is brought out that appellant has paid the service tax voluntarily under self-assessment. The tax is paid under reverse charge mechanism for the services received by them from foreign service provider. On perusal of para 6.4 of the OIO, it is seen that the adjudicating authority has denied refund of credit holding that the service tax has been paid voluntarily and also that no credit is available in GST regime. Section 174 (2) of the GST Act - It is clear that the liability, if any, under the erstwhile law of Finance Act, 1994 to pay service tax would continue even after the introduction of GST. Conversely, the right accrued under the said Act in the nature of credit available under CCR 2004 also is protected. If the assessee has to pay service tax even after the introduction of GST, their right to avail the credit on the same cannot be denied. The Hon ble jurisdictional High Court in the case of TARA EXPORTS VERSUS THE UNION OF INDIA, GOODS AND SERVICE TAX COUNCIL, THE PRINCIPAL COMMISSIONER OF CGST AND CENTRAL EXCISE, THE PRINCIPAL SECRETARY/COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE CENTRAL GST OFFICER AND THE ASSISTANT COMMISSIONER, CGST AND CENTRAL EXCISE [ 2018 (9) TMI 1474 - MADRAS HIGH COURT] has held that GST laws contemplate seamless flow of tax credits on all eligible inputs. In various decisions, it has been held that substantive right of credit cannot be denied on account of procedural grounds. Section 142 (3) of GST Act provides how to deal with claims of refund of service tax of tax and duty / credit under the erstwhile law. It is stated that therein that such claims have to be disposed in accordance with the provisions of existing law and any amount eventually accruing has to be paid in cash - In the present case, there is no allegation that the credit is not eligible to the appellant. It is merely stated that tax has been paid voluntarily and therefore credit is not available under the GST regime. Though credit is not available as Input Tax Credit under GST law, the credit under the erstwhile Cenvat Credit Rules is eligible to the appellant. Such credit has to be processed under Section 142 (3) of GST Act, 2017 and refunded in cash to the assessee. The rejection of refund claim cannot be justified - appeal allowed - in favor of appellant. Central Excise 2021 (12) TMI 674 Maintainability of appeal - pre-deposit under Section 35-F of the Act - appellant submitted that Section 35F of the Act is introduced with effect from 6.8.2014 and that the show cause notice issued to the appellant was much before the said amendment and hence, the amendment under Section 35-F of the Act, being perspective in nature is not applicable to this case and the disposal of the appeal relying on the pre-deposit is illegal and wrong - HELD THAT:- On going through the order of the CESTAT, it is seen that the appeal was disposed of directing the appellant to make the pre-deposit as provided under Section 35-F of the Act before the Commissioner (Appeals) and if the appellant makes the pre-deposit, the Commissioner (Appeals) was directed to decide the appeal on merits. In fact, the order of the CESTAT does not foreclose the appellant's case, but he is given an option to make the pre-deposit before the 1st appellate authority and if the deposit is made, the first appellate authority shall direct to consider the appellant's case on merits. We fully agree with the order of the CESTAT as it is a mandatory provision that the appellant has to make the pre-deposit as per Section 35F of the Act and only in that case, the appeal need be entertained - the order of the CESTAT is confirmed. Appeal disposed off. 2021 (12) TMI 673 Refund of Additional Excise Duty (AED) - applicability of amended Section 11AB (effective 11 May 2001) on account of an erroneous refund of the AED - period April 2000 to May 2001 - HELD THAT:- Section 11AB was inserted in the statute book only with effect from 28 September 1996. Intention to evade was an essential concomitant under the pre-amended Section 11AB(1), however, the said requirement was done away with under the amended Section 11AB(1). In the instant case, it is an undisputed position clearly forthcoming from the case records that the erroneous refund of AED to the respondent was not attributable to any mala fide or intent to evade on the part of the respondent thereby ruling out the applicability of the pre-amended Section 11AB(1). The Board vide Circular dated 26 June 2002 taking note of the decision of the Hon ble Supreme Court in the case of MP Tapesrendered in the context of Section 11AB, clarified that the date of passing of the adjudication orders have no bearing in the matter of interpretation of the expression duty become payable or ought to have been paid - the contentions of the revenue as regards passing of the adjudication orders holding the refund as erroneous in February 2002 does not allow them to take recourse to amended Section 11AB(1) in view of the restrictions contained in the amended Section 11AB(2). The proposal in the Notice to recover interest from the date of grant of erroneous refund as evident from the annexure thereof itself militates against the revenue s contention of the interest liability accruing under the amended Section 11AB basis the date of the adjudication order. The amended Section 11AB(1) shall apply in the matter of recovery of interest on such erroneous refund in respect of April 2001 and May 2001 and to that extent the OIA dated 25 November 2010 deserves to be modified - the alternate contention of the Respondent as regards lack of any substantive provision for recovery of interest in the statute charging AED , cannot be accepted. The provision of Section 133(3) of the Finance Act, 1999 incorporates by reference, all such provisions of the Central Excise Act in relation to levy and collection of AED . The expression collection is wide enough to include collection of erroneous refund of AED . The Appeal filed by the Revenue is partly allowed. 2021 (12) TMI 672 Refund of CENVAT Credit - the payment was made with reference to the audit objection - whether the appellant s payment of Cenvat Credit is attained finality in terms of Section 11A (2) of Central Excise Act, 1944? - HELD THAT:- There was no agreement by the appellant and in the column of department conclusion is that the Jurisdiction Assistant Commissioner/Jurisdiction Range Officer was supposed to issue show cause notice. It is clear that the payment made by the appellant was deemed to be provisional and not final to attract provision of Section 11A (2) of Central Excise Act, 1944. The appellant have made the payment with reference to the audit objection, however, in the said letter it is not mentioned that the case be settled and show cause notice be waived in terms of Section 11A (2) of Central Excise Act, 1944. Whether the appellant is required to file appeal with reference to the audit objection and payment made by them? - HELD THAT:- Firstly, the payment made by the appellant was not the final payment hence, the same cannot be a part of the assessment. Secondly, there is no assessment by the department which needs to be challenged. As per the audit proceeding, the department was supposed to issue show cause notice which it failed to do so, therefore, there is no occasion and reason for appellant to file appeal before the Commissioner (Appeals). The only remedy is to claim the refund of such payment made as per the objection raised by the audit. As regard, the judgment relied upon by the appellant it is settled that unless and until the payment along with interest is made by the assessee and the same is intimated specifically in writing to the department, the case cannot be closed under Section11A (2) of Central Excise Act, 1944. The appellant s refund needs to be processed in accordance with law - Appeal allowed - decided in favor of appellant. 2021 (12) TMI 671 Refund of CENVAT Credit - refund claim has been rejected merely stating that the appellant has not availed the credit and carried forward to GST regime by filing TRAN-1 - HELD THAT:- There is no allegation raised by the department that the appellant is not eligible to avail credit of the duties / taxes paid on the inputs / input services. To put it more clearly, the appellant would be eligible to avail the credit but for the introduction of new GST law. It is also explained by the appellant that they are able to avail credit only after they make the full payment to the vendors. The appellants have cleared payments to vendors of the impugned invoices during the period from 5.7.2017 to 4.10.2017. The provisions of CENVAT Credit Rules, as it stood during the disputed period (March to June 2017), allowed the appellant to avail credit within a period of one year. They could not avail the credit only because of the introduction of GST law by which the CENVAT account has ceased to exist. In the case of ADFERT TECHNOLOGIES PVT. LTD. VERSUS UNION OF INDIA AND ORS. [ 2019 (11) TMI 282 - PUNJAB AND HARYANA HIGH COURT] , it is held that transitional credit being vested right cannot be taken away on procedural or technical ground. In the present case, the appellant would be eligible to avail credit but for the introduction of GST law. The said right cannot be frustrated by pressing on the procedural requirement of filing TRAN-1 before 27.12.2017. The accounting practice adopted by the appellant allows to avail credit only after making payments to the vendors which has made it impossible to carry forward the credit as set out in the GST law. When the credit is eligible, the same cannot be denied by stating procedural requirements - In PUJAN BUILDERS ENGINEERS CONTRACTORS VERSUS C.C.E. S.T. -VADODARA-II [ 2021 (2) TMI 512 - CESTAT AHMEDABAD] , the Tribunal allowed the refund even though initially the credit was carried forward to TRAN-1 and later reversed, after which the claim for refund was filed. The rejection of refund claim cannot be justified - Appeal allowed - decided in favor of appellant. CST, VAT & Sales Tax 2021 (12) TMI 670 Suit for recovery - mortgage transactions - defence of the respondent was that there was no relationship of mortgagor and mortgagee between the parties but that the relationship was as landlord and tenant - whether the alleged bills forming the claim in the suits have been raised on the basis of the fictitious and fraudulent transactions? - HELD THAT:- The respondents have admitted that no sales tax is payable by a dealer to a dealer. By necessary implication, the respondents are admitting the appellant to be a dealer as also the respondents to be dealer under the Delhi Sales Tax Act, 1975. It is only on account of sales made by a dealer to a dealer that the sales tax is not be payable as the incidence of payment of tax would be when the goods are sold to a consumer. The respondents as wholesaler, were getting the benefit of trade discount, which is an agreed term of sale. The witness examined by respondent no.1 in his cross examination admitted his signature or that of the representative of company on invoices, debit notes and on ST-1 Form. The respondent had led no evidence in respect of fraud or duress apart from self-serving statement. The consignment of goods was sent from the month of November 1985 to January 1986. The respondent had signed large number of documents during this period. However, no complaint was made to any person or authority or even to the plaintiff. It is a denial of receipt of goods without any basis raised only in the written statement filed. Such stand is wholly bereft of any truth and is thus rejected. The debit notes stamped and signed by the respondents were in respect of trade discount on the wholesale price mentioned in the invoice. Having accepted the trade discount, which is evident from the stamp and signatures not only on the debit notes but also on the invoice as well as on ST-1 Form, shows that the goods were actually lifted by the respondents for which payment has not been made. The respondents have taken up wholly untenable ground that the documents were signed under duress - The High Court in the appeal has gravely erred in setting aside the reasoned order of the learned Single Bench on the grounds which were not even raised by the respondents. The suit is decreed for recovery of ₹ 96,41,765.31 and future interest on the principal sum of ₹ 71,82,266/- @9% p.a. from the date of filing of the suit till realisation - Appeal allowed. Indian Laws 2021 (12) TMI 669 One Time Settlement (OTS) - Non-Performing Asset, (NPA) - It appears that to come out of NPA eligibility, the original writ petitioner deposited a sum of ₹ 60 lakhs on 02.03.2020, i.e., after rejection of her earlier application on the ground that as her loan account is NPA , she is not eligible for OTS Scheme - HELD THAT:- As per the guidelines issued, the grant of benefit of OTS Scheme cannot be prayed as a matter of right and the same is subject to fulfilling the eligibility criteria mentioned in the scheme. The defaulters who are ineligible under the OTS Scheme are mentioned in clause 2. A wilful defaulter in repayment of loan and a person who has not paid even a single installment after taking the loan and will not be able to pay the loan will be considered in the category of defaulter and shall not be eligible for grant of benefit under the OTS Scheme. Similarly, a person whose account is declared as NPA shall also not be eligible. As per the guidelines, the Bank is required to constitute a Settlement Advisory Committee for the purpose of examining the applications received and thereafter the said Committee has to take a decision after considering whether a defaulter is entitled to the benefit of OTS or not after considering the eligibility as per the OTS Scheme. Even otherwise, no borrower can, as a matter of right, pray for grant of benefit of One Time Settlement Scheme. In a given case, it may happen that a person would borrow a huge amount, for example ₹ 100 crores. After availing the loan, he may deliberately not pay any amount towards installments, though able to make the payment. He would wait for the OTS Scheme and then pray for grant of benefit under the OTS Scheme under which, always a lesser amount than the amount due and payable under the loan account will have to be paid. The sum and substance of the discussion would be that no writ of mandamus can be issued by the High Court in exercise of powers under Article 226 of the Constitution of India, directing a financial institution/bank to positively grant the benefit of OTS to a borrower. The grant of benefit under the OTS is always subject to the eligibility criteria mentioned under the OTS Scheme and the guidelines issued from time to time - Ultimately, such a decision should be left to the commercial wisdom of the bank whose amount is involved and it is always to be presumed that the financial institution/bank shall take a prudent decision whether to grant the benefit or not under the OTS Scheme, having regard to the public interest involved and having regard to the factors. The High Court, in the present case, has materially erred and has exceeded in its jurisdiction in issuing a writ of mandamus in exercise of its powers under Article 226 of the Constitution of India by directing the appellant-Bank to positively consider/grant the benefit of OTS to the original writ petitioner - Appeal allowed - decided in favor of appellant. 2021 (12) TMI 668 Dishonor of Cheque - insufficiency of funds - presumption under Sections 118(a) and 139 of the NI Act is available or not - HELD THAT:- It is true that when PW1 was examined the accused has disputed his signature in the cheque. It is also true that PW2 in cross examination stated that he did not see the accused putting his signature. But, PW1 in categoric terms has deposed that the cheque in question was signed by the accused in his presence at the time of borrowal. There is nothing to disbelieve the said version. That apart, the accused did not take any steps to send the signature in Ext. P1 cheque for examination by a scientific expert. Once the signature, execution and handing over of the cheque are satisfactorily proved, the presumption under Section 139 of the NI Act would come into play and remain in force until the accused discharges the burden. The complainant has successfully established the signature, execution and handing over of the cheque. There is absolutely no evidence adduced to rebut the said evidence. No evidence has been adduced by the accused to substantiate the defence plea that the cheque in question was issued in blank in connection with the transaction he had with the deceased brother of the complainant. This court under the exercise of jurisdiction under Section 397 read with 401 of Cr.P.C. cannot re-appreciate or re-evaluate the evidence - the revision petitioner is not entitled for any relief. Revision petition dismissed. 2021 (12) TMI 667 Dishonor of cheque - insufficiency of funds - discharge of legal liability or not - acquittal of the accused - rebuttal of presumption under Section 139 of the Act - preponderance of probabilities - HELD THAT:- The evidence of independent witnesses, DW1 and DW2, would substantiate the defence case set up by the accused. Even in the absence of the expert opinion, the accused had succeeded in proving that the cheque in question was issued in blank in connection with the earlier transaction he had with the complainant. It is settled that there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden. The accused need to substantiate his case based on preponderance of probabilities. The accused in this case is successful in discharging the burden by cross examining PW1 and examining DW1 to DW3 and also producing Exts. D1 and D2 and also by proving probabilities in his favour and non-probabilities against the complainant. The evidence on record would clearly show that the fact is not as presumed. Thus, it can be safely concluded that having regard to the facts and circumstances of the case and preponderance of probabilities, the rebuttal evidence adduced by the accused is acceptable. In the case of acquittal, there is double presumption in favour of the accused. An order of acquittal cannot be interfered with as matter of course. An order of acquittal can only be interfered with when there are compelling and substantial reasons for doing so. Only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of acquittal. There are no reason to interfere with the order of acquittal by the court - appeal dismissed. 2021 (12) TMI 666 Dishonor of cheque - acquittal of the accused - complainant/appellant had not produced the registration certificate of the firm on record - document on record to show about Sh. Rinchen Thomas being the managing partner in the complainant firm and Sh. Rinchen Thomas having further authorized Hem Raj to file the complaint - HELD THAT:- The appellant/applicant (therein) ought to be granted one chance to place and prove on record the partnership deed. The matter is remitted back to the learned JMFC, who shall afford an opportunity to the appellant to lead evidence with regard to the factum of partnership as also due authorization, if any, in favour of Sh. Hem Raj - Appeal allowed by way of remand.
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