TMI Tax Updates - e-Newsletter
February 2, 2024
Case Laws in this Newsletter:
GST
Income Tax
Customs
Insolvency & Bankruptcy
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
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GST:
The Expansion of Input Service Distributor's Role: Finance Bill, 2024 Insights:
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GST:
Supply of Services - activity of holding of shares of subsidiary company by holding company - During the proceedings, the Central and State Governments issued clarifications stating that merely holding shares in a subsidiary company by a holding company should not be treated as a "supply of service" under GST. Based on these clarifications, the petitioner's counsel submitted that the activity of holding shares in a subsidiary by a holding company cannot be construed as "supply of service" as per GST law. - Accordingly, the High court held that the impugned order was illegal and arbitrary, as it wrongly classified holding shares in a subsidiary as "supply of service".
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GST:
Demand of interest u/s 50 - Seeking benefit of amendments to Section 50 as the amendment was done retrospectively by the Finance Acts of 2019 and 2021. - The High court decided to dispose of the petition and directed the petitioner to approach the respondents with a representation indicating the payable amount as per their understanding. The respondents were ordered to re-determine the interest payable by the petitioner in accordance with the amended Section 50 of the CGST Act and proceed as per law.
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GST:
Amendment of form GSTR-1 - The High court, after considering the submissions and precedents, agreed with the petitioner. It noted that the GST laws should allow for the rectification of such bona fide and inadvertent errors, especially when there is no loss of revenue. The court referred to the decision in Star Engineers India Pvt. Ltd. v. Union of India and other similar cases where rectification was permitted in the absence of any revenue loss.
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GST:
Refund of IGST - Ocean Freight - The High court acknowledged that the Supreme Court judgment was applicable to the petitioner's case. It observed that the IGST levied on the 'service' aspect of transactions under Composite Supply contracts was in violation of the GST Act. The Supreme Court had clarified that imposing a separate levy on the Indian importer for 'supply of services' by the shipping line would violate the Act, as the importer is already liable to pay IGST on the 'composite supply' (which includes both goods and services). - Refund allowed.
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GST:
Cancellation of the petitioner's GSTN Registration - The petitioner claimed that due to their accountant's ill-health, GST returns were not filed in time. - The High court considered the submissions and noted the importance of the GST registration for the petitioner's business. The court observed that small-scale entrepreneurs like the petitioner often lack the expertise to handle e-mails and advanced technologies, which hampers their ability to respond to official notices. The court suggested that the department should consider issuing notices in regional languages and via SMS or registered post to facilitate better communication with such traders. - The HC, while restoring the GST registration, allowed the partitioner to file the returns.
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Income Tax:
Validity of TPO order u/s 92CA - Period of limitation u/s 153(3) - The High court found the final order of assessment dated 13 February 2023 was indeed passed beyond the statutory time limit and was thus liable to be set aside. It also noted that the adjustments made against refunds for earlier assessment years were improper, as there was no valid demand for A.Y. 2011-12 at the time of those adjustments.
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Income Tax:
Validity of reopening of assessment - Re-opening notice u/s 148A(d) - personal hearing refused - the High court concluded that Section 148A(b) does not mandate a personal hearing. The provision requires serving a show cause notice, but the specific words "personal hearing" are not included in the section. - It was noted that while the Income Tax Department may grant a personal hearing at its discretion, refusal to grant such a hearing would not mean that the assessee has been deprived of an opportunity of hearing, as long as there is no specific provision in the statute mandating such a hearing.
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Income Tax:
Validity of reopening of assessment - Enquiry to be conducted before issuance of a notice by the AO u/s 148A(a) - The High court found that conducting an inquiry before issuing a notice under Section 148A is discretionary and not mandatory. The phrase "if required" in Section 148A(a) suggests that it is left to the discretion of the Assessing Officer to decide whether to conduct an inquiry. The court interpreted the word "shall" in this context to mean "may," granting discretion to the Assessing Officer.
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Income Tax:
Validity of orders passed u/s 147 r.w.s.144B and notice u/s 221 (1) - The High court held that the assessment orders were passed in a hurry to avoid the lapsing of the assessment proceeding due to limitation under Section 153 of the Act, and this constituted a manifest violation of the principles of natural justice. Therefore, the court quashed the impugned orders and remitted the cases back to the first respondent (the assessing officer) for fresh orders.
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Income Tax:
Exemption u/s 11 - Charitable activity u/s 2(15) - The Tribunal found that the assessee, a trust, was engaged in charitable activities under Section 11 of the Income Tax Act, 1961, primarily focusing on education through printing and publishing of books and magazines related to spiritual teachings. The Tribunal observed that the trust's activities of printing, publishing, and distributing journals and magazines were incidental to its main charitable objective and did not constitute a business activity.
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Income Tax:
Penalty u/s 271(1)(c) - defective notice u/s 274 - non specification of clear charge - the Tribunal held that that the penalty imposed by the A.O is not valid due to the lack of clarity in the notice, and the penalty is set aside.
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Income Tax:
Denial of Approval u/s 80G - The Assessee's argument that donations were required for non-recurring expenses related to construction was not supported by evidence. Additionally, no expenditures in the Income & Expenditure account were found to correspond with the charitable claims made by the Assessee. - Considering these factors, the Ld. CIT(E) concluded that the Assessee's purpose for seeking donations did not align with the objectives of section 80G. As the Assessee failed to provide any other compelling rationale for approval, the request was denied. - Tribunal upheld the Order of CIT(E).
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Income Tax:
Validity of Assessment u/s 153A - This absence of incriminating material played a pivotal role in the decision. Citing the precedent established by the Hon’ble Supreme Court in the case of PCIT vs. Abhisar Buildwell Pvt. Ltd., the Tax Tribunal held that the additions made by the AO, which had been subsequently confirmed by the Ld. CIT(A), were to be deleted due to their lack of foundation in incriminating evidence.
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Income Tax:
Deduction u/s 80-IA - non-filing of Form 10CCB before due date specified in section 44AB - The tribunal, after considering the arguments and relevant precedents, concurred with the Assessee's view that filing Form 10CCB before the due date was only directory and not mandatory. Therefore, they directed the Assessing Officer to allow the deduction claimed under Section 80-IA. As a result, the Assessee's appeal was allowed.
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Income Tax:
Deduction / Exemption u/s 54 - LTCG - expenditure incurred on interiors of new residential house property - The appellant's argument centered on the genuineness of these interior decoration expenses. Ultimately, the tribunal ruled in favor of the appellant, allowing the expenditure incurred on interior decoration as a deduction u/s 54.
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Income Tax:
Benefit of deduction u/s 80IC - Activity of processing of raw material received from HUL and then feeding the processed raw material to the mother plant of HUL - The Tribunal examined the nature of the assessee's activities and determined that they constituted 'manufacture' as per Section 80-IC of the Income Tax Act. - The Tribunal considered various factors such as the sophisticated machinery, factory registration, approvals from government authorities, and the nature of the activities performed by the assessee. It was found that these activities led to the creation of new goods, different from the raw materials received.
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Income Tax:
Condonation of delay in filling appeal before ITAT - delay of 384 days - The assessee's delay in filing appeals, ranging from 383 to 384 days, was not condoned due to the lack of plausible and sufficient reasons justifying the delay. The assessee's conduct was found to be careless, evasive, lackadaisical, and non-compliant, leading to the conclusion that the appeals were barred by limitation. The tribunal declined to condone the inordinate delay and dismissed the appeals without addressing their merits, following the principle that the law of limitation must be construed strictly.
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Income Tax:
Legitimacy of assessment orders u/s 153A and the validity of approval u/s 153D - The Tribunal found that the approvals under Section 153D were granted in a generic and listless manner, without proper examination of the draft assessment orders and issues therein for each assessment year. The approvals were an empty formality, not meeting the legal requirements, and hence, the related assessment orders were quashed.
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Customs:
Amendment of the shipping bills - The appellant had failed to mention the correct scheme code on the shipping bills, leading to the withholding of their ROSCTL amount. The Tribunal found that the rejection of the request for amendment was not justified as Section 149 of the Customs Act, 1962, did not prescribe a time limit for filing a request for amendment during the relevant period (Prior to amendment to section 149). The Tribunal referenced decisions in similar cases and noted that a Board Circular cannot override the enactment.
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Customs:
Revocation of CB license - forfeiture of the security deposit - imposition of penalty under Regulation 18 of CBLR 2018 - The tribunal held that the time limits prescribed in the CBLR, 2018 have not been followed in this case as an apparent. In these circumstances it cannot be continued as the actions of revenue under CBLR are barred by limitation prescribed by CBLR, 2018.
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Customs:
Revocation of Customs Broker license - The Customs Broker is responsible for verifying the correctness of information related to cargo clearance and advising clients on customs law compliance. The appellant's involvement in facilitating fraudulent exports, including suggesting misclassified goods description and failing to advise clients or inform authorities, establishes mens rea (guilty mind). - The tribunal theld that, the action of revoking the CB license, forfeiting the security deposit, and imposing a penalty is justified based on these violations.
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Customs:
Seeking provisional release of goods - Ethanol Absolute - The High Court observed that, on similar imports a different yardstick cannot be applied by the department. Moreover, in our opinion, applying different parameters for the same goods would amount to an arbitrary action on the part of the Designated Officer. Apart from this, the approach is patently contrary to the orders passed by this Court in the earlier proceedings filed by the Petitioner.
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Customs:
Prayer for a Mandamus to release the consignment of Betel nut imported - prohibited goods or not - Customs department challenging the order of Customs Authority for Advance Ruling - High Court observed that, the clarification or ruling given by the Authority for Advance Rulings (AAR) is binding unless changed by law or annulled under Section 28-K of the Customs Act. - The classification of imported goods is a factual determination to be made by the Assessing Officer considering physical and chemical examination and the commercial parlance test. - Imported goods can be provisionally released under Section 110 of the Customs Act, subject to payment of customs duty on the tariff value, without the need for absolute confiscation.
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Customs:
Seizure of goods - Jurisdiction - Ethanol - goods in question were not prohibited goods - The High court found that the seizure of the petitioner's goods was prima facie illegal, conducted at the behest of private competitors, and contrary to previous court orders. This action was deemed an abuse of power by the State Excise officials. The court directed the Additional Chief Secretary to conduct an inquiry into the conduct of the officials involved and the role of private parties in the seizure.
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Customs:
Smuggling - Sandalwood - Acquittal of accused - The High Court held that, the Trial Court's acquittal was based on the lack of concrete evidence linking the respondent to the ownership of the sandalwood and the intent to illegally export it. The prosecution's inability to produce key witnesses and material evidence weakened their case. Consequently, the Trial Court's decision was deemed reasonable, and the appellate court found no compelling reason to overturn the acquittal.
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Customs:
Demand of customs duty invoking extended period of limitation - the Tribunal noted that the appellant had provided all relevant information and documents at the time of importing the "Floating Crane" & "Grab." The imports were physically examined by Customs officers, and duties were assessed and paid. The Tribunal found no evidence of willful or deliberate suppression of facts by the appellant to evade customs duty. The extended period for duty demand was unjustifiably invoked, as the issue was primarily related to classification interpretation.
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Customs:
Confiscation of goods and redemption fine - Exemption under Advance Authorization Scheme - Demand of IGST with interest paid on import of copper concentrate before the finalization of the provisional assessment of the bill of entry - The Tribunal found that there was no mala fide intention on the part of the appellant, and the entire process occurred under the supervision of Customs Authorities. The Tribunal also held that confiscation of goods and imposition of redemption fine were not sustainable as there was no seizure or provisional release of goods.
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Customs:
Effective date of notification - The effective date of a notification under Section 25(4) of the Customs Act is determined not only by the date of publication in the official gazette but also by the date the notification is offered for sale. - A notification comes into force when it is issued, published in the Official Gazette, and offered for sale. All three events are necessary for the notification to be effective. - Tribunal considered that the notification (dated 17.9.2015) in question was offered for sale on 21.09.2015, and therefore, it came into effect from this date.
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Indian Laws:
Union Budget 2024 (Interim) + FINANCE Bill, 2024
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Indian Laws:
Maintainability of Revision Petition before the High Court when the petitioner has alternate remedies as per the - an ex-parte decree was passed against the respondent - Supreme court has held that, when an application or petition filed under Order IX Rule 13 CPC is dismissed, the defendant can avail a remedy by preferring an appeal in terms of Order XLIII Rule 1 CPC. Thus, Civil Revision Petition under Section 115 of the CPC would not arise when an application/petition under Order IX Rule 13 CPC is dismissed.
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Indian Laws:
Dishonour of Cheque - Supreme Court held that, the presumptions under the NI Act albeit rebuttable operate in favour of the complainant. Hence, it is for the accused to rebut such presumptions by leading appropriate defence evidence and the Court cannot be expected to assist the accused to collect evidence on his behalf. - Further, there was no requirement for the appellate Court to have exercised power under Section 391 CrPC for summoning the official from the Post Office and had rightly rejected the application under Section 391 CrPC.
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IBC:
CIRP - Home Buyers - Moratorium against the company has been ordered - The Supreme Court's decision in this case clarifies that the moratorium u/s 14 of IBC does not extend to the directors or officers of a company under moratorium. The Court set aside the National Commission's orders, which had held that a decree cannot be executed against a company due to the moratorium u/s 14 of the IBC and, consequently, against certain individuals. The Court remitted the execution application to the National Commission, allowing proceedings against the individual respondents (directors/ officers) for execution, subject to their liability to comply with the order passed against the company.
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IBC:
Validity of order of liquidation of the Corporate Debtor - The Appellate Tribunal concluded that the unanimous decision of the CoC to liquidate the Corporate Debtor, considering the lack of assets and the cancellation of the main leasehold asset, was appropriate. The Appellants, being promoters/shareholders, did not have the locus standi to challenge the liquidation order.
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Service Tax:
Maintainability of petition - The High court held the principle of self-restraint adopted by constitutional courts in cases where alternative and efficacious remedies are available, leading to the dismissal of the writ petition. The decision highlighted the importance of availing statutory remedies before approaching the court under Article 226 of the Constitution, especially when there are disputes regarding facts or entitlements for exemptions.
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Service Tax:
Valuation of service tax - inclusion of TDS paid u/s 195 - The Tribunal held that TDS paid under the Income Tax Act cannot be included in the gross value for the purpose of service tax calculation. The Tribunal referred to previous rulings where it was established that the amount of TDS paid is not part of the consideration for services rendered and thus should not be included in the taxable value for service tax.
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Service Tax:
Demand of service tax based on Balance Sheet - The Tribunal emphasizes that amounts reflected in the Balance Sheet cannot determine Service Tax liability without evidence showing that the entire amount received was taxable under Service Tax provisions. The decision also underscores that regularly filed ST-3 Returns should be effectively scrutinized at the preliminary stage, and mere non-payment of tax does not constitute suppression of facts for invoking the extended period of limitation.
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Central Excise:
Refund of wrongly paid Central Excise Duty on Retail Sale Price (Maximum Retail Price-MRP) - unjust enrichment - The authorities concluded that the appellant had passed on the incidence of higher duty to their customers. The appellant failed to provide sufficient evidence to prove the non-passing of the duty burden, such as detailed customer ledgers showing accounting of invoices and subsequent credit/debit notes. - The Tribunal found no merit in the appellant's claim for a refund to be paid to them, instead of being credited to the Consumer Welfare Fund.
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Central Excise:
CENVAT Credit - The Tribunal upholds the validity of the endorsed Bill of Entry for availing CENVAT credit and recognizes the concept of job-work in the context of CENVAT credit rules. It emphasizes that procedural aspects should not override substantial compliance with the provisions relating to CENVAT credit.
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VAT:
Reversal of input tax credit - The High court found no merit in the petitioner's challenge to the constitutional validity of the fiscal legislation, as the petitioner failed to demonstrate any violation of constitutional provisions. The court also noted that the registration of the selling dealer had been cancelled before the purchase, meaning the seller had not paid tax, thus negating the petitioner's claim of double taxation.
TMI Short Notes
Articles
Notifications
Circulars / Instructions / Orders
News
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₹1,72,129 crore gross GST revenue collected during January 2024; records 10.4% Year-on-Year growth
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INDIAN ECONOMY DEMONSTRATES RESILIENCE AND MAINTAINS HEALTHY MACROECONOMIC FUNDAMENTALS, DDDESPITE UNCERTAINTY FROM ADVERSE GEOPOLITICAL DEVELOPMENTS
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SIGNIFICANT BOOST TO CAPITAL EXPENDITURE; TO BE INCREASED BY 11.1 PER CENT TO ₹ 11,11,111 CRORE; AMOUNTING TO 3.4 PER CENT OF THE GDP
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FINANCE MINISTER PROPOSES A NEW CORPUS OF RUPEES ONE LAKH CRORE TO BOOST PRIVATE INVESTMENT IN SUNRISE TECHNOLOGIES
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UNION MINISTER SMT. NIRMALA SITHARAMAN LAYS DOWN STRATEGY FOR ‘AMRIT KAAL’
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INTERIM BUDGET 2024-25 PROMISES STEPPING UP VALUE ADDITION IN AGRICULTURAL SECTOR AND BOOSTING FARMERS’ INCOME
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GOVERNMENT TO LAUNCH SCHEME TO HELP DESERVING SECTIONS OF MIDDLE CLASS “LIVING IN RENTED HOUSES, OR SLUMS, OR CHAWLS AND UNAUTHORIZED COLONIES” TO BUY OR BUILD THEIR OWN HOUSES
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ROOFTOP SOLARISATION TO ENABLE ONE CRORE HOUSEHOLDS TO OBTAIN UPTO 300 UNITS OF FREE ELECTRICITY EVERY MONTH
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A FRAMEWORK FOR RATING ICONIC TOURIST CENTRES BASED ON QUALITY OF FACILITIES AND SERVICES TO BE ESTABLISHED: UNION FINANCE MINISTER
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GOVERNMENT TO LAY WHITE PAPER ON ECONOMY - THEN AND NOW
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TARGET FOR LAKHPATI DIDI TO BE ENHANCED FROM 2 CRORE TO 3 CRORE: FINANCE MINISTER
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FIVE INTEGRATED AQUAPARKS TO BE SETUP
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UNION FINANCE MINISTER ANNOUNCES SETTING UP OF MORE MEDICAL COLLEGES
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‘NARI SHAKTI’ TAKES CENTER STAGE; UNION FINANCE MINISTER ANNOUNCES VACCINATION TO PREVENT CERVICAL CANCER
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INTERIM BUDGET PROPOSES TO RETAIN TAX RATES FOR DIRECT AND INDIRECT TAXES
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INDIA-MIDDLE EAST-EUROPE ECONOMIC CORRIDOR IS A STRATEGIC AND ECONOMIC GAME CHANGER FOR INDIA AND OTHERS
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RISING POPULATION GROWTH AND DEMOGRAPHIC CHANGES POSE CHALLENGES TO GOAL OF ‘VIKSIT BHARAT’
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AVERAGE MONTHLY GROSS GST COLLECTION DOUBLES TO ₹1.66 LAKH CRORE
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DIRECT TAX COLLECTIONS MORE THAN TREBLED AND RETURN FILERS SWELLED TO 2.4 TIMES IN PAST DECADE: UNION FINANCE MINISTER
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THE COUNTRY IS PROUD OF OUR YOUTH SCALING NEW HEIGHTS IN SPORTS: UNION FINANCE MINISTER
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MOMENTUM FOR NARI SHAKTI
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GOVERNMENT COMMITTED TO EMPOWER AMRIT PEEDHI - THE YUVA : UNION FINANCE MINISTER
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‘GARIB’ (POOR), ‘MAHILAYEN’ (WOMEN), ‘YUVA’ (YOUTH) AND ‘ANNADATA’ (FARMER) ARE THE FOUR MAJOR CASTES OF FOCUS FOR THE GOVERNMENT: UNION FINANCE MINISTER
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UNION FINANCE MINISTER SAYS GOVERNMENT EMPOWERING POOR THROUGH SABKA SAATH TO BEAT POVERTY
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UNION MINISTER SMT. NIRMALA SITHARAMAN EMPHASISES THAT AMRIT KAAL SHOULD BE KARTAVYA KAAL FOR REALIZING THE VISION OF ‘VIKSIT BHARAT’
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GOVERNMENT FOCUSED ON MORE COMPREHENSIVE ‘GDP’ - GOVERNANCE, DEVELOPMENT AND PERFORMANCE FOR PEOPLE-CENTRIC INCLUSIVE DEVELOPMENT, SAYS UNION FINANCE MINISTER
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“GOVERNMENT COMMITTED TO STRENGTHEN AND EXPAND ECONOMY WITH HIGH GROWTH AND TO CREATE CONDITIONS FOR PEOPLE TO REALISE THEIR ASPIRATIONS”
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HIGHLIGHTS OF THE INTERIM UNION BUDGET 2024-25
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SUMMARY OF THE INTERIM UNION BUDGET 2024-25
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ANNUAL FINANCIAL STATEMENT OF THE CENTRAL GOVERNMENT FOR 2024-2025
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KEY FEATURES OF BUDGET 2024-2025
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KEY TO THE BUDGET DOCUMENTS (2024-2025)
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EXPENDITURE BUDGET (2024-2025)
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BUDGET AT A GLANCE (2024-2025)
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BUDGET SPEECH - INTERIM BUDGET 2024-2025- SPEECH OF NIRMALA SITHARAMAN, MINISTER OF FINANCE
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Union Budget 2024 (Interim) + FINANCE Bill, 2024
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Cabinet approves Signing and ratification of Bilateral Investment Treaty between India and United Arab Emirates
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Monthly Review of Accounts of Union Government of India upto December, 2023 for the Financial Year 2023-24
Case Laws:
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GST
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2024 (2) TMI 64
Cancellation of GST registration - registration obtained by means of fraud, willful misstatement or suppression of facts - SCN does not specify the cogent reason - violation of principles of natural justice - HELD THAT:- The show cause notice was issued to the petitioner on 18.01.2024. However, the notice does not specify any cogent reason. The show cause notice requires the petitioner to appear before the undersigned i.e. authority issuing the notice. Notice does not give the name of the officer or place or time where the petitioner has to appear - Further, it is noticed that the Show Cause Notice does not provide petitioner the complete information. In view of the peculiar facts and circumstances of the case, the petition is disposed of directing the respondents to provide, within one week, all the material to the petitioner in support of the Show Cause Notice. On the receipt of the said material, petitioner shall file a reply within one week thereof. Respondent thereafter shall adjudicate the Show Cause Notice within a maximum period of two weeks - Opportunity of personal hearing shall also be given to the petitioner. Petition disposed off.
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2024 (2) TMI 63
Maintainability of appeal - appeal dismissed on the ground of limitation - HELD THAT:- The petitioner submits that if the benefit of Section 14 of the Limitation Act is given to the petitioner, then the said appeal would not be time barred under Section 107 of the Act. There are merit in the submission of counsel appearing on behalf of the petitioner, and accordingly, the impugned order is quashed and the respondent no.3/Additional Commissioner, CGST, (Appeals), Meerut, are directed to grant benefit of Section 14 of the Limitation Act to the petitioner and hear the appeal afresh. If after granting the benefit of Section 14 the petitioner's appeal is filed within time, the appeal shall be heard on merits. This writ petition is disposed of.
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2024 (2) TMI 62
Classification of supply - rate of GST - supply of LPG for domestic use - whether 5% tax is to be levied or 18% tax is to be levied for the period from 01.07.2017 to 24.01.2018? - HELD THAT:- Apparently, keeping in view the justification which was raised by the assessee, the competent authority came to the conclusion while passing the order dated 12.05.2023 that there was no additional liability payable of the GST as demanded in the show cause notice. The demand of interest and proposed penalties thus did not survive, keeping in view the clarification furnished by the Board in various circulars referred to. Resultantly, the authority dropped the proceedings initiated in the show cause notice. The Apex Court in the case of THE STATE OF MAHARASHTRA AND OTHERS VERSUS GREATSHIP (INDIA) LIMITED [ 2022 (9) TMI 896 - SUPREME COURT] has also held that when there is an alternate remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the constitutional provisions. The said observations came to be passed against an order whereby the High Court of Judicature at Bombay had entertained the writ petition against the assessment order and the observations were that the assessee should avail the statutory remedy of appeal and thereafter avail other remedies provided under the statute. It would be appropriate if the respondents take a call on the said issue by examining all the defences which have been raised in the reply. A perusal of the order dated 12.05.2023 passed by the Commissioner at Mangaluru would also go on to show that the circular in question which is subject matter of challenge has already been discussed while dropping the demand - Petition disposed off.
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2024 (2) TMI 61
Seeking permission to withdraw the writ petition in order to avail the remedy of appeal as provided in terms of the notification dated 4th November, 2023 - HELD THAT:- The instant writ petition is dismissed as withdrawn with a liberty as aforesaid. Petitioner may file the appeal within the cut-off date of 31st January, 2024 after complying the conditions as stipulated in the notification dated 4th November, 2023 - Petition disposed off.
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2024 (2) TMI 60
Maintainability of petition - availability of alternative remedy of appeal - Wrongly availing input tax credit - HELD THAT:- It is not in dispute that the efficacious alternative statutory remedy is available to the petitioner. Therefore, it is not found proper to entertain the petition. However, the petitioner would be at liberty to avail the alternative remedy, in accordance with law, if so advised. Since the issue of limitation has been raised, the same shall not come in the way of the petitioner in filing the appeal in case the same is filed within twenty days, from today. The petitioner would be at liberty to raise all the grounds raised in the present writ petition. The appellate authority is directed to dwell upon the issue and pass the order on merits, as expeditiously as possible. This writ petition is finally disposed off.
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2024 (2) TMI 59
Supply of Services - activity of holding of shares of subsidiary company by holding company - Constitutional validity of Notification dated 28.06.2017 bearing No. 11/2017-Central Tax (Rate) (Annexure-A) at Entry No. SAC 997171, and Notification dated 28.06.2017 bearing No 08/2017-Integrated Tax (Rate) (Annexure- B), at Entry No. SAC 997171 - HELD THAT:- In the light of the issuance of Circulars by the Central Government and the State Government during the pendency of the present petition, clarifying that holding of shares by M/s. Yonex Co., Japan [the holding company] in its subsidiary, the petitioner herein at Bengaluru cannot be treated or classified as supply of service . The impugned order dated 02.11.2022 passed by the respondent No. 4 which proceeds on the basis that the said holding of shares amounts to supply of service is clearly illegal, arbitrary and without jurisdiction or authority of law, and the same deserves to b e quashed. The impugned order dated 02.11.2022 issued by the respondent No. 4 is hereby quashed - Petition allowed.
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2024 (2) TMI 58
Demand of interest u/s 50 of the Central Goods and Service Tax Act, 2017 - Seeking benefit of amendments to Section 50 as the amendment was done retrospectively by the Finance Acts of 2019 and 2021. - HELD THAT:- The petition filed by the petitioner is disposed of. The petitioner may approach the respondents by way of an appropriate representation indicating the demand, which according to the petitioner, would be payable and seeking redetermination of the demand raised pursuant to the Notices dated 11.09.2018 13.08.2019 in terms of the amended provisions of Section 50 of the Act, whereby the proviso has been inserted and give retrospective effect. On the petitioner approaching the respondents by way of such a representation, the respondents shall redetermine the interest payable by the petitioner as per the amended provisions and take steps in accordance with law. As for non-payment of the demand raised, the Bank account of the petitioner has been attached, it would be required of the petitioner to make payment of the payable amount as indicated by him in the representation, on such payment, the attachment of the bank account of the petitioner shall be lifted by the respondents.
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2024 (2) TMI 57
Amendment of form GSTR-1 for the period from April 2018 to March 2019 which involves Input Tax Credit - primary prayer of the petitioner is that the respondents need to permit the petitioner to amend its form GSTR-01 for financial year 2018-19 so that its client is able to claim the Input Tax Credit - HELD THAT:- The notices were issued purely on the mistakes which had happened at the petitioner s end in submitting the returns in form GSTR-01 in which the mismatch had occurred in the GST in numbers. It appears to be not in dispute that this is not a case where any loss of revenue would be caused to the department as already tax has been paid. Once a bona fide mistake of such nature has occurred, it needs to be rectified and more particularity, considering the observations as made by this Court in Star Engineer India Pvt. Ltd. [ 2023 (12) TMI 729 - BOMBAY HIGH COURT] as there is no loss of revenue, in the event such rectification is permitted to the petitioner. This petition is disposed off by directing the respondents to permit the petitioner to amend and rectify form GSTR-1 for the period in question for financial year 2018-19, either through online or manual means, within a period of four weeks from the date a copy of this order is placed before authorities.
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2024 (2) TMI 56
Refund of IGST - Ocean Freight - HELD THAT:- In the case of UNION OF INDIA ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [ 2022 (5) TMI 968 - SUPREME COURT] , Hon ble Supreme Court, inter alia observed and directed The impugned levy imposed on the service aspect of the transaction is in violation of the principle of composite supply enshrined under Section 2(30) read with Section 8 of the CGST Act. Since the Indian importer is liable to pay IGST on the composite supply , comprising of supply of goods and supply of services of transportation, insurance, etc. in a CIF contract, a separate levy on the Indian importer for the supply of services by the shipping line would be in violation of Section 8 of the CGST Act. The writ petition filed by the petitioner is disposed of in the light of the judgment in the case Mohit Minerals - The petitioner would be entitled to refund of the IGST paid by it. Needful be done by the respondents within a period of six weeks from the date of this order, in accordance with law.
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2024 (2) TMI 55
Cancellation of the petitioner's GSTN Registration - impugned order has been passed without hearing the petitioner - violation of principles of natural justice - HELD THAT:- The petitioner in this case is engaged in the business of executing contract works for Government and its agencies. Most of the small scale entrepreneurs like carpenters, electricians, fabricators etc. are almost uneducated and they are not accustomed with handling of e-mails and other advance technologies. Though they are providing e-mail IDs at the time of Registration, the applications are prepared by some agents by creating an e-mail IDs, however, on reality most of the Traders are not accustomed with handling of e-mails. They are also not aware about the consequences of not paying the Returns in Time. The department shall workout the possibilities of issuing these notices in the respective regional languages and also by SMS and registered post. So that, the uneducated traders can also respond to these notices to some extent, otherwise, these notices will be an empty formality and will not serve any purpose for which it has been issued. In similar circumstances, this Court, in TVL. SUGUNA CUTPIECE CENTER VERSUS THE APPELLATE DEPUTY COMMISSIONER (ST) (GST) , THE ASSISTANT COMMISSIONER (CIRCLE) , SALEM BAZAAR. [ 2022 (2) TMI 933 - MADRAS HIGH COURT] allowed the writ petitions by holding that no useful purpose would be served by keeping the petitioners out of the Goods and Service Tax regime. Petition allowed.
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Income Tax
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2024 (2) TMI 65
Condonation of delay filling appeal before ITAT - delay of 493 days - bonafide reasons of delay or not? - as submitted by AR that there were multi-facet reasons leading to the same, viz. (i) that as the earlier chartered accountant of the assessee society, who was looking after the matter before the CIT(Appeals) had unfortunately expired in the month of April, 2021, therefore, the case of the assessee society had thereafter remained unattended; (ii) that the staff of the assessee society which was working under the Government supervision and Jila Sahakari Bank in a rural areas was not computer literate; (iii) that books of the account of the assessee society was being manually maintained; and (iv) that there was no proper access of internet in the rural area where the assessee society was based. HELD THAT:- Explanation of the assessee society does not inspire any confidence for the reason that it ought to have made necessary arrangements for both prosecuting the matter before the first appellate authority and thereafter filing the appeal against the latter s order well within the prescribed time period contemplated in law. As observed the callous and irresponsible conduct of the assessee society is not only discernible from the inordinate delay involved in filing of the present appeal but also, its conduct in the course of the proceedings before the CIT(Appeals), wherein it had adopted an evasive approach and had on no occasion despite having been put to notice about the hearing of the appeal had put up an appearance before the said appellate authority. Apropos, the claim of the assessee that as it is working in the rural areas with a skeletal staff who were not computer literate, unable to approve the said reason advanced by the assessee society in its attempt to explain the inordinate delay involved in filing of the present appeal. As all the assessees without any exception are expected to be vigilant and comply with the statutory obligations cast upon them within the prescribed time period, therefore, the mere fact that the assessee society suffered from a locational disadvantages or that its staff was not computer savvy, cannot be pressed into service for justifying the substantial delay of 493 days involved in filing of the present appeal. Also, the claim of the assessee society that there was no proper access to internet in the rural area where it was based would also not come to its rescue. Not only the lackadaisical approach adopted by the assessee society in substantially delaying the filing of the present appeal by an inordinate period but also its non-cooperative attitude and sheer carelessness in the course of the proceedings before the CIT(Appeals) wherein it had despite being well informed evaded participation in the course of the proceedings before him, therein, irrefutably evidence the fact that the substantial delay involved in filing of the appeal was not backed by any bona fide reasons, but a careless approach on its part, which it had tried to justify on the basis of its multifacet contentions that have not legs to stand upon. Where an application for condonation of delay has been moved bonafide, then, the Court would normally condone the delay, but where the delay has not been explained at all and in fact there is an unexplained and inordinate delay coupled with negligence or sheer carelessness, then, the discretion of the court in such cases would normally tilt against the applicant. See M/s. Phoenix Mills Ltd. Vs. Asstt. CIT. Reverting to the facts of the present case, as already examined the reasons that had led to the inordinate delay, which has not been explained by the assessee society to have occasioned due to bonafide reasons. As observed by me hereinabove, as there was no justifiable reason for the assessee society to file the present appeal after 493 days from the lapse of the prescribed period, therefore, there appears to be no reason to adopt a liberal view and condone the inordinate delay therein involved. Also, I may observe at this juncture that the law of limitation has to be construed strictly as it has an effect of vesting on one and taking away the right from the other party. The delay in filing of the appeals cannot be condoned in a mechanical or a routine manner since that would undoubtedly jeopardize the legislative intent behind Section 5 of the Limitation Act. As decided in case of State of West Bengal Vs. Administrator, Howrah [ 1971 (12) TMI 106 - SUPREME COURT] the expression sufficient cause should receive a liberal construction so as to advance substantial justice, particularly when there is no motive behind the delay. The expression sufficient cause will always have relevancy to reasonableness. The action which can be condoned by the court should fall within the realm of normal human conduct or normal conduct of a litigant. However, as observed assessee appellant in the present case had acted in defiance of law, therefore, there can be no reason to allow its application and condone the substantial delay of 493 days involved in preferring of the captioned appeal. Delay of 493 days cannot be simply condoned on the basis of the hollow claim of the assessee that the same had occasioned for the multi facet reasons given. Also, as observed by the Hon ble Supreme Court in the case of Ramlal, Motilal and Chotelal Vs. Rewa Coalfields Ltd. [ 1961 (5) TMI 54 - SUPREME COURT] that seeker of justice must come with clean hands, therefore, now when in the present appeal before us the assessee appellant had failed to come forth with any good and sufficient reason that would justify condonation of the inordinate delay of 493 days involved in preferring of the same, therefore, decline to condone the same and, thus, without adverting to the merits of the case dismiss the captioned appeal of the assessee society as barred by limitation. Decided against assessee.
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2024 (2) TMI 54
Validity of reopening of assessment - photocopy of the notice was given to the Assessee during the re-assessment proceedings - sufficient service of notice on the Assessee or not? - as decided by HC [ 2015 (9) TMI 1064 - DELHI HIGH COURT] no legal error committed by the ITAT in holding that there was no proper service of notice on the Assessee under Section 148 - Revenue stated that this petition has to be dismissed on on the ground of low tax effect as being covered by the Circular No. 17 of 2019 dated 08.08.2019 issued by Department of Revenue, Ministry of Finance - HELD THAT:- Special Leave Petition dismissed. Reopening of assessment u/s 147 - legality of the notice issued u/s 148 - as decided by HC [ 2015 (9) TMI 756 - DELHI HIGH COURT] ITAT was right in its conclusion that since no proper service of notice had been effected u/s 148 (1) on the Assessee, the reassessment proceedings were liable to be quashed - HELD THAT:- We see that the said notice as followed by the order passed by the AO/CIT was set aside by the Income Tax Appellate Tribunal way back on 21.06.2013. Subsequently the order of the Tribunal was upheld by the High Court on 15.09.2015. Proceedings initiated in 2008 have concluded by the order of the High Court in 2015. Yet another decade passed thereafter. Under the circumstances, while we keep the question of law open for consideration in another case, we will not interfere with the judgment of the High Court. Special Leave Petition is dismissed.
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2024 (2) TMI 53
Validity of Revision u/s 263 - unexplained loan as detailed enquiries were not made by the assessing officer with respect to source of source - ITAT set aside revision proceedings - HELD THAT:- It is true, the observations made by the Principal Commissioner are generally relevant considerations. What may have however completely missed the attention of the PCIT is, in any case, other than the hypothetical circumstance of such transactions being disbelieved, if due enquiry being made, no cogent material existed before the PCIT to prima facie doubt the genuineness of such transactions. Here it is relevant to note that tax liability in that case would be about Rs. 18,00,000/- Thus, though it is true, by virtue of Explanation-2 added to Section 263 of the Act, a presumption exists as to the assessment order being erroneous and prejudicial to the interest of revenue, it does not empower the Commissioner of Income Tax to exercise revisional powers in each and every case. We find the present is not a fit case to offer interference. No substantial question of law is seen to exist in the context of tax dispute not exceeding Rs. 18,00,000/- that may otherwise exist. Under the prevailing litigation policy of the Union Government, such a dispute may not be brought to the High Court. As to the legality of the reasoning offered by the Tribunal, we leave it open to be tested in an appropriate case. In the context of the present dispute, the findings recorded by the Tribunal are well reasoned and based on material on record. - Decided against revenue.
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2024 (2) TMI 52
Validity of TPO order u/s 92CA - Period of limitation - as argued Final Orders of Assessment were not framed by the respondents within the time frame as prescribed u/s 153(3) - time limit for compliances in terms of TOLA - HELD THAT:- When the writ petition was initially heard by us on 12 April 2023, the solitary submission which appears to have been made at the behest of the respondents was of the period of limitation being liable to be computed as commencing from the date when the SLP was dismissed by the Supreme Court and consequently from 29 October 2020. We had on that occasion prima facie observed that the submission appeared to be wholly untenable since no stay operated in respect of the order of the ITAT dated 20 December 2018 and that the appeal preferred before this Court had come to be dismissed on the first date of hearing itself. The Court also observed that in light of the plain language of Section 153(3) of the Act, the period of limitation is liable to be computed from the date when the order is received by the concerned statutory authority. Undisputedly, and as we had noticed on that occasion, the CIT(Judicial) had received the order of the ITAT on 31 January 2019. The respondents have failed to address any submission which may compel us to doubt the prima facie opinion that came to be recorded by us on that date. The period prescribed u/s 153(3) of the Act would thus have to necessarily be computed from the date when the order of the ITAT was received by the respondents. Even if the benefits of TOLA were extended to the respondents, undisputedly, the order of assessment was liable to be framed lastly by 30 September 2021. The respondents have thus abjectly failed to pass an order in terms of the mandatory provisions comprised in Section 153 of the Act. The order of 13 February 2023 is thus liable to be set aside on this score alone. Adjustments of certain refunds against a perceived demand - HELD THAT:- As respondents appear to have adjusted refunds payable against a perceived outstanding demand pertaining to AY 2011-12 on 20 May 2022 and 02 June 2022. The aforesaid adjustments have been made in ignorance of the fact that the demand for AY 2011-12, if any, ceased to exist on 20 December 2018 when the original order of assessment came to be set aside and the matter remanded for fresh adjudication by the ITAT. Thus, on 20 May 2022 and 02 June 2022, no demand for AY 2011-12 existed against which a refund could have been validly adjusted. In any case, and in light of what we have found above, a demand for AY 2011-12 could have been created only on or before 30 September 2021. Undisputedly, no valid demand stood raised against the petitioner prior to that date. We thus find ourselves unable to sustain the action of adjustment which is impugned in this writ petition.
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2024 (2) TMI 51
Validity of order of assessment u/s 144 r.w.s. 143(3A) - inability and omission on the part of the petitioner to file its response/reply to the notices and to appear before the respondents and contest the proceedings was due to bonafide reasons, unavoidable circumstances and sufficient cause - HELD THAT:- A perusal of the material on record will indicate that the respondents have noted that the petitioner has not submitted its reply to the Show Cause Notice nor filed any documents in support of its claim. In our opinion, the grounds, facts and the reasons set out of the Memorandum of Writ Petition for the purpose of contending that the inability and omission on the part of the petitioner to submit its reply and contest the proceedings, are valid and sufficient. Under these circumstances, adopting a justice oriented approach and in order to provide one more opportunity to the petitioner, without expressing any opinion on the merits/demerits of the rival contentions, we deem it just and appropriate to show last indulgence in favour of the petitioner by setting aside the impugned order and remitting the matter back to the respondent No. 2 for reconsideration afresh and proceed further in accordance with law. The impugned order is set aside. The matter is remitted back to the respondent No. 2 the National Faceless Assessment Centre [Now known as National e-Assessment Centre] for reconsideration afresh in accordance with law.
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2024 (2) TMI 50
Validity of reopening of assessment - Re-opening notice u/s 148A(d) - personal hearing refused - whether personal hearing in addition to the show cause notice of hearing, is not mandated? - HELD THAT:- Not a single judgment has been cited before us specifically taking up the issue of interpretation of Section 148(b) with regards to whether a show cause notice of hearing would mean and necessarily include a personal hearing or for interpreting the said provision in a manner different than the view being taken by us. When the specific words and a personal hearing having not been engrafted in Section 148A(b) and since sub-clause c indicates that the reply tendered by the Assessee has to be considered before passing an order u/s 148(d), we conclude that it is not the mandate of Law that a show cause notice u/s 148A (b) would necessarily and mandatorily include a personal hearing. The Income Tax Department, on it s own volition or on a request made by the Assessee, may grant a personal hearing. However, refusal to grant a personal hearing would not mean that the assessee has been deprived of an opportunity of hearing, in the absence of any specific provision or the language in the statute book mandating such a hearing. Enquiry to be conducted before issuance of a notice by the AO u/s 148A(a) - contention of the Petitioner is that the enquiry is mandatory - HELD THAT:- Under clause (b), an opportunity of being heard is to be provided to the Assessee. Clause (c) requires that the reply of the Assessee has to be taken into account and clause (d) requires an order to be passed for forming an opinion that a notice u/s 148 has to be issued, on the basis of the material available on record, which includes the reply of the Assessee. In the absence of any specific judicial pronouncement dealing with the aspect of interpretation on this issue, considering the language of the provision and noticing the law enunciated in the above discussed reports, we are of the view that the words if required have been set out in 148A(a) so as to leave it to the discretion of the Assessing Officer as to whether he desires to conduct an enquiry. If the Legislature had the intent and object of mandating an enquiry before issuing a show cause notice under clause (b), the Legislature would not have specifically used the words if required , following the words conduct an enquiry . In these circumstances, if a harmonious interpretation is to be arrived at without rendering the words if required meaningless, in our view, the word shall would mean may as Section 148A(a) grants discretion to the Assessing Officer to conduct an enquiry. We, however, deem it appropriate to record that since Section 148 permits an assessee to raise all issues at the time of the hearing. in view of the pronouncement of the Hon ble Supreme Court in Anshul Jain [ 2022 (10) TMI 3 - SC ORDER ] the Department shall follow the due procedure laid down in Law and ensure that the Petitioners are extended an adequate and reasonable opportunity to contest the notice u/s 148, as is permissible in Law.
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2024 (2) TMI 49
Validity of orders passed u/s 147 r.w.s.144B and notice u/s 221 (1) - violation of principles of natural justice - as argued mandatory requirement of Section 143(2) has not been complied with - Impugned Assessment Order has been passed in a hurry without giving adequate opportunity to the petitioner to respond to the Show Cause Notices containing the Draft Assessment Orders. HELD THAT:- The impugned orders passed by the first respondent have preceded with the notices issued by the first and the second respondents and show cause notices cum Draft Assessment Orders - It is evident that the assessment orders have been passed in a hurry to avoid lapsing of the assessment proceeding due to limitation u/s 153 of the Income Tax Act, 1961. Although the respondents have given various reasons to justify the impugned order and submit that the petitioner should be relegated to work out the remedy before the Appellate Commissioner against the impugned assessment orders, it is of the view that this is a manifest violation of principles of natural justice and therefore, the impugned orders are liable to be quashed as not enough time was given to the petitioner to respond to the respective show cause notices cum Draft Assessment Orders. Thus impugned orders are liable to be quashed and the cases are to be sent back to the first respondent to pass a fresh order by giving opportunity to the petitioner to file a reply/representation to the respective show cause notices cum Draft Assessment Orders dated 26.03.2022. Also notice issued u/s 221(1) are also liable to be quashed. Decided in favour of assessee.
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2024 (2) TMI 48
Assessment of income of the assessee society - Quantification of claim for deduction of expenses - as per CIT(A) assessee s claim for deduction of expenses could safely be taken @20% of its miscellaneous income - HELD THAT:- As is discernible from the record, the assessee society had neither in the course of the assessment proceedings nor in the proceedings before the CIT(Appeals) placed on record any submission/material to substantiate its claim for deduction of expenditure @ 53.88% of the total miscellaneous income. As nothing has been brought on record which would point out any perversity in the view taken by the lower authorities, therefore, find no infirmity in the view taken by the CIT(Appeals) who had in all fairness restricted the addition/disallowance of the assessee s claim for deduction of expenditure. Assessee appeal dismissed.
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2024 (2) TMI 47
TDS u/s 194J or u/s 194C - payments made towards maintenance of X-Ray machine and CVC machine - assessee in default u/s 201(1) - HELD THAT:- We observe that the contentions and the case laws relied on by the assessee was not considered by the CIT(A) in proper perspective. We also noticed that in the course of appellate proceedings assessee submitted that the assessee furnished return of income filed by the payee to show that the income has been accounted for in their returns and paid the tax dues on income declared by them and assessee is in the process of furnishing of certificate to this effect from an Accountant in Form No. 26A, however, the Ld.CIT(A) has not considered the submissions of the assessee. In the grounds of appeal the assessee also contended that the AO failed to consider the amount already deposited by the assessee even before passing the order u/s 201(1) and 201(1A) of the Act. We observe that as per the mandate of the Hon ble Supreme Court in the case of Hindustan Coca Cola Beverage Pvt. Ltd [ 2007 (8) TMI 12 - SUPREME COURT ] if the payee has taken into consideration the amounts received by payer in their return of income and paid taxes on such amounts the assessee cannot be treated as an assessee in default u/s 201(1) of the Act. CIT(A) appears to have not considered all these submissions of the assessee and the evidences placed before him. In the absence of any evidence furnished before us to show that the payees have already considered these amounts in their returns, in the interest of justice, we restore this matter to the file of AO for fresh adjudication in accordance with law. The assessee is at liberty to file all the evidences to support their contentions before the AO. All the issues in the appeal are left open for fresh adjudication in accordance with law after providing adequate opportunity of being heard to the assessee. Appeals of the assessee are allowed for statistical purpose.
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2024 (2) TMI 46
Addition of advance received considered as accommodation entry - Before CIT(A), the assessee filed details relating to advances and also confirmation obtained from mentioned company but he rejected the same by observing that the same will not serve any purpose - HELD THAT:- CIT(A) has not given proper reasoning for rejecting the documents filed by the assessee. CIT(A) did not call for remand report from the AO in respect of the documents filed by the assessee, which is usually done. Accordingly, we are of the view that the order passed by CIT(A) cannot be sustained and further, this issue requires fresh examination at the end of the AO. Accordingly, we set aside the order passed by Ld CIT(A) on this issue and restore the same to the file of the AO for examining it afresh. We also direct the assessee to fully co-operate with the AO for expeditious completion of assessment proceedings. Deemed dividend u/s 2(22)(e) - According to the AO, the assessee is a director in a closely held company and during the year under consideration, she has taken advance besides salary - HELD THAT:- Admittedly, the shareholding pattern of above said company at the time of taking of advance by the assessee was not examined by the AO, which would have determined the applicability of sec.2(22)(e) - According to the assessee, she has resigned from the Board and also does not hold substantial interest. Assessee has not furnished any supporting documents to substantiate above submissions. Besides the above, the provisions of sec.2(22)(e)exclude advances given to a shareholder during the course of carrying on business for business purposes. It is the contention of the assessee that the above said advance was given to her in the capacity of an employee and hence it was so given during the course of carrying on business for business purposes. We notice that this contention of the assessee also was also not examined - this issue also requires examination at the end of the AO. Addition u/s 56(2)(vii) - Assessee has purchased a flat less than stamp duty value, hence the AO added the difference amount as deemed income u/s 50C - assessee submitted that there are certain deficiencies in the property and hence she could purchase the property at a price lower than the stamp duty value - HELD THAT:- Under the provisions of sec. 50C, the AO is bound to refer the matter of valuation to the DVO, if the assessee is disputing the valuation determined by Stamp duty authorities. Though the assessee has demanded for referring the matter to the DVO before the Ld CIT(A), yet the Ld CIT(A) rejected the same, which, in our view, is in violation of sec. 50C of the Act. We notice that the CIT(A) has relied upon internet information about the valuation of property in the year 2023, for determining the value of property as on 2012. In our view, this approach of the CIT(A) is also not correct and the provisions of sec. 50C do not contemplate such an approach. CIT(A) did not call for remand report from the AO with regard to the sources explained by the assessee. Accordingly, we are of the view that this issue requires fresh examination at the end of the AO. Accordingly, we set aside the order passed by CIT(A) on this issue and restore the same to the file of the AO for both the issues, viz., addition made u/s 50C and u/s sec. 56(2)(vii) afresh. We also direct the assessee to fully co-operate with the AO for expeditious completion of assessment proceedings.
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2024 (2) TMI 45
Exemption u/s 11 - Charitable activity u/s 2(15) - onus of proof - activity of printing, publishing and distribution of journal and magazines is incidental to the attainment of the objects of the trust as decided by CIT(A) - whether the assessee was carrying on business or charitable activity as per the provisions of the Act? - HELD THAT:- As decided in Sai Publication Fund 2002 (3) TMI 45 - SUPREME COURT] the onus of proof lies on the Revenue to prove that the assessee was carrying on business in respect of the impugned receipt. Even in the case of the present assessee, the dominant purpose was to spread the message based on preaching s which the above decision has held to be not a business activity. It is also observed that in the said decision the term business and carrying on business has been widely interpreted. To hold the incidental or ancillary activity to be business, the Revenue is put to strict proof. Further the presumptions in these cases are also in favour of the assessee unless rebutted by the department. It is pertinent to point out that earning of profit per se would not be a criteria to decide whether such activity is a commercial activity or not. By respectfully following the above said decision, we hold that the assessee trust is not into the business of publishing, printing and subscription of the said books as the same is not the main object of the assessee trust. We, therefore, deem it fit to dismiss the grounds raised by the Revenue.
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2024 (2) TMI 44
Estimation of income - Unexplained expenditure u/s 69C - bogus/unverified purchases - HELD THAT:- Admittedly, it is a matter of fact borne from record that the assessee had failed to substantiate the authenticity of his claim of having made genuine purchases from the mentioned tainted parties. At the same time, we find that it is a matter of fact borne from record that the A.O in the course of the assessment proceedings, had observed that the assessee in the garb of bogus bills procured from the aforementioned parties had routed the unaccounted stock available with him through his regular books of account When the A.O was of the view that the assessee had not made any genuine purchases from the aforesaid bogus/hawala parties and had merely procured bogus bill from them to route the unaccounted stock through his regular books of account, then, the sole inference which can be drawn is that the assessee had purchased goods not from the aforementioned tainted parties but had procured the same at a discounted value from open/grey market. We are unable to concur with the A.O who had made addition of the entire value of the impugned purchases in the hands of the assessee. Also, we find that the A.O had at no stage rejected the books of account of the assessee u/s.145(3). Addition in the case of the assessee could only have been made to the extent of the profit element which he would have made by procuring goods at a discounted value from the open/grey market as against the value booked by him in the garb of aforesaid bogus purchase bills in his books of account. In so far the issue of quantification of the profit which the assessee would have made by procuring the goods in question from the open/grey market is concerned, we find that in the case of Pr. Commissioner of Income Tax-17 Vs. M/s. Mohhomad Haji Adam Company, [ 2019 (2) TMI 1632 - BOMBAY HIGH COURT] while upholding the order of the Tribunal, had observed, that the addition in the hands of the assessee as regards the bogus/unproved purchases was to be made to the extent of bringing the G.P rate of such purchases at the same rate as those of other genuine purchases. Profit made by the assessee in the case before us by procuring the goods at a discounted value from the open/grey market can safely be determined by bringing the G.P rate of such bogus purchases at the same rate as that of the other genuine purchases. We, thus, in terms of our aforesaid observations restore the matter to the file of the A.O, with a direction to him to restrict the addition in the hands of the assessee w.r.t the impugned bogus/unverified purchases made by him by bringing the GP rate of such bogus purchases at the same rate as that of the other genuine purchases. Penalty u/s 271(1)(c) - defective notice u/s 274 - non specification of clear charge - HELD THAT:- Failure on the part of the A.O to clearly put the assessee to notice as regards the default for which penalty under Sec. 271(1)(c) was sought to be imposed on him by clearly and explicitly pointing out the specific defaults in the SCN, for which the assessee was called upon to explain that as to why penalty u/s.271(1)(c) of the Act may not be imposed upon him, had, thus, left the assessee guessing of the default for which he was being proceeded against, and had divested him of an opportunity to put forth an explanation before the A.O that no such penalty was called for in his case. We, thus, in the backdrop of our aforesaid observations are of a strong conviction that as the A.O had clearly failed to discharge his statutory obligation of fairly putting the assessee to notice as regards the default for which he was being proceeded against, therefore, the penalty under Sec. 271(1)(c) imposed by him being in clear violation of the mandate of Sec. 274(1) of the Act cannot be sustained - Decided in favour of assessee.
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2024 (2) TMI 43
Approval u/s 80G denied - incurring non-recurring expenses and construction of building - HELD THAT:- On careful perusal of the order of the Ld.CIT(E) and the finding that no evidences were furnished by the assessee for incurring non-recurring expenses and construction of building at Bawani Hansi and also since the assessee has not accounted for any expenditure booked in the income and expenditure account. CIT(E) concluded that there is no any cogent rationale behind claims for approval u/s 80G of the Act. The assessee could not rebut any of the finding of the Ld.CIT(E) before us. Therefore, we sustain the order of the Ld.CIT(E) in denying approval u/s 80G of the Act to the assessee trust - Decided against assessee.
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2024 (2) TMI 42
Validity of Assessment u/s 153A - as argued no incriminating material/document as found during the course of search - HELD THAT:- As perused the materials available on record and considering the submissions made by the parties as the additions were made in the absence of any incriminating materials found during the search, by following the ratio laid down in the case of case of Abhisar Buildwell Pvt. Ltd. [ 2023 (4) TMI 1056 - SUPREME COURT] we delete the additions made by the A.O. which was confirmed by the Ld. CIT(A). Decided in favour of assessee.
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2024 (2) TMI 41
Deduction u/s 80-IA - non-filing of Form 10CCB before due date specified in section 44AB - whether the Form 10CCB is mandatorily to be filed along with the return or the due date specified u/s 139(1) for claiming deduction u/s 80IA? - HELD THAT:- We observe that in the case of CIT Vs. Contimeters Electricals Pvt. Ltd. [ 2008 (12) TMI 4 - HIGH COURT DELHI] held that the requirement of filing the audit report along with the return is not mandatory but directory and that if the audit report is filed at any time before framing of assessment the requirement of section 80IA(7) would be met observing. Similar view has been taken in the case of PCIT vs. Surya Merchands Ltd. [ 2016 (5) TMI 947 - ALLAHABAD HIGH COURT] and in the case of CIT Vs. Sanjay Kumar Bansal [ 2013 (7) TMI 87 - UTTARAKHAND HIGH COURT] and ACE Multi Taxes Systems Pvt. Ltd. [ 2009 (1) TMI 260 - KARNATAKA HIGH COURT] . Thus we hold that filing of audit report in Form 10CCB before the due date for filing of return of income u/s 139(1) is only directory and not mandatory for the year under consideration . Thus, we direct the AO to allow deduction claimed u/s 80IA. Grounds raised by the assessee are allowed.
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2024 (2) TMI 40
Deduction / Exemption u/s 54 - LTCG - expenditure incurred on interiors of new residential house property - HELD THAT:- We note from the bank statement submitted by the assessee that the assessee has paid amount on 25/03/2013 of Rs.54,65,641/- vide cheque No.363832, out of which, Rs.46,00,000/- was given as advance for purchase of the property and the second party with the permission of the vendor, Shri Sanjay Udani has carried out lot of interior decorations in the schedule B property spending substantial amount of Rs.8,65,641/- and it has been brought into the notice of the first party who was convinced about the interior decoration. The payment made by the assessee has not been disputed by any of the lower authorities and payment was made to her husband and both are residing together. Assessee supports the case of the assessee. Accordingly, the expenditure incurred by the assessee for interior decoration is eligible to get the benefit of deduction u/s 54.
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2024 (2) TMI 39
Benefit of deduction u/s 80IC - activities of the assessee constitutes manufacture or not? - activities undertaken by the assessee regarding processing of raw material received from HUL and then feeding the processed raw material to the mother plant of HUL - Whether the commodity which is subjected to the process of manufacture? - HELD THAT:- Activities conducted by the assessee constitute manufacture. DR has also argued that HUL vide confirmation dated 21/12/2011 issued during the assessment proceedings for AY 2009-10 submitted that as per the agreement between the assessee and HUL, activities under taken by the assessee constitute C F Services only. As evident from the record that the said confirmation obtained by the AO from HUL was not confronted with the assessee during the assessment proceedings and the document or the person who has issued the said document was not subject to any cross examination or cross verification. On the contrary, the documents produced by the assessee which are approvals granted by various regulatory authorities go to show that the activities conducted by the assessee are in the nature of manufacture. We are of the opinion that the CIT(A) has committed error in confirming the assessment order, accordingly, the assessment order and the order of the CIT(A) are hereby set aside and the A.O. is directed to allow the benefit of 80IC to the assessee. Appeals filed by the assessee are allowed.
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2024 (2) TMI 38
Condonation of delay in filling appeal before ITAT - delay of 384 days - delay involved in filing of present appeal has occurred on account of non-receipt of notice u/s 250 - HELD THAT:- Assessee has deliberately chosen to adopt a lackadaisical approach and callous conduct during the said appellate proceedings. Even after when the letter u/s 133(6) dated 31.03.2023 was received, and the fact that an ex-parte order has been passed by the Ld. CIT(A) wayback on 12.09.2022, the appellant assessee continuing with the same careless approach took another 9 months time in filing the appeal before the tribunal. Such conduct of the assessee shows that the reasons offered by the assessee towards seeking the condonations in delay in filing of appeal are not reasonable neither the same constitutes any sufficient cause towards the delay. Under such facts and circumstances, there appears to be no reason to adopt a liberal view and condone the inordinate delay therein involved. Also, we may observe at this juncture that the law of limitation has to be construed strictly as it has an effect of vesting on one and taking away the right from the other party. The delay in filing of the appeals cannot be condoned in a mechanical or a routine manner since that would undoubtedly jeopardize the legislative intent behind Section 5 of the Limitation Act. Assessee appellant has squarely failed to substantiate with any plausible and sufficient reasons to justify the condonation of inordinate delay of 384 days involved in filing of the present appeal. We, therefore, in our thoughtful consideration do not find any merit in the explanations and reasons submitted by the assessee towards the request seeking the condonation of delay in filling of the captioned appeal, therefore, we decline the same, and, thus, without adverting to the merits of the case dismiss the captioned appeal of the assessee, as barred by limitation.
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2024 (2) TMI 37
Validity of orders with non-mentioning of DIN - whether a procedural violation? - subsequent generation of the DIN - scope of Circular of the Board - as per revenue principles of purposeful or functional interpretation should be applied - HELD THAT:- As decided in Abhinav Chaturvedi and others[ 2023 (8) TMI 378 - ITAT DELHI] forwarding of the intimation of generation of the DIN in ITBA is only a subsequent action and that is not part of assessment order. The manner in which the word 'communication' is defined shows every notice, order, summons, letter and any correspondence from Tax authorities should have a DIN quoted and it is for this reason that the Intimation issued about the DIN of assessment order itself has a DIN quoted on it Board s circular application - Argument raised is against now crystallized proposition of law that as far as the Circulars of the Board are concerned, they are binding upon the officers of the Revenue Department without any exceptions whatsoever - Once it is concluded that the Circular of the Board is binding upon the Revenue Authorities, then, its non-compliance brings the consequences which the Board Circular itself manifests and it is that the communication , which in the present case is assessment order will be deemed to have been never issued. Thus, when Board lays down what shall be the format of any such communication and also provides that if the communication is not in that format the same will be considered as not issued at all, then it is not a mere technical flaw liable to be corrected but it vitiates the communication, i.e the assessment order in the present form. Once assessee has a statuary right to be conveyed such communication , as far as the immediate consequences of the communication not bearing DIN is concerned, as the same is presumed to have never been issued, such communication has no legal foundation left and becomes a voidable communication at the instance of the assessee, irrespective of assessee establishing the plea of prejudice. The difference pointed out in the passing of an order and issuing communication of order is very much clarified by the Circular as the word communication has been primarily used in the sense of a Noun , specifying what all sorts of orders, notices etc. will require DIN on the body. It is not used in the form of a verb indicating the mode of transmission of information or delivery or transmitting a copy thereof as service of the notice referred u/s 282 of the Act. Thus to say that there is merely an improper manner of service and such rigour is mitigated by Section 292BB is quite misconceived. See BRANDIX MAURITIUS HOLDINGS LTD. [ 2023 (4) TMI 579 - DELHI HIGH COURT] This ground is allowed as the assessment order in question is invalid and is deemed to have never been issued as per the CBDT Circular dated 14/08/2019 for non-mentioning of DIN on the body of the order. Decided against revenue.
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2024 (2) TMI 36
Validity of assessment orders without quoting DIN - validity of subsequent generation of the DIN - HELD THAT:- As findings of the Ld. CIT(A) are of no consequence as the mandate of the said CBDT Circular is that DIN should be mentioned in the body of the assessment order and the reason for non-issuance of DIN thereof if the order is passed manually. It must also mention the date and number of the written approval of the Chief Commissioner / Director General of Income Tax. The fact remains that the assessment order does not contain the DIN and any reason for non-issuance of DIN. The DIN has to be generated prior to the assessment order being uploaded on the ITBA Systems as per the Instructions from Directorate of Income Tax (System) dated 25.10.2019. Subsequent generation of DIN and uploading of the same on ITBA will not, in our view, validate this deficiency. See Brandix Mauritious Holdings Ltd [ 2023 (4) TMI 579 - DELHI HIGH COURT] The case of the assessee also finds support by the subsequent decisions of the Hon ble Calcutta High Court in the case of M/s. Tata Medical Centre Trust [ 2023 (9) TMI 1324 - CALCUTTA HIGH COURT] and Hon ble Bombay High Court in the case of Ashok Commercial Enterprises [ 2023 (9) TMI 335 - BOMBAY HIGH COURT] wherein the Hon ble Bombay High Court, inter-alia held that subsequent generation of the DIN will not be sufficient as the requirement of the CBDT Circular, is quoting of the DIN, in the body of such communication and / or order. Thus we are inclined to quash the assessment order passed by the AO under section 143(3) of the Act.
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2024 (2) TMI 35
Assessment u/s 153A - validity of approval u/s 153D - scope of approving authority orders/powers - addition of Undisclosed income on the basis of documents obtained from bank - HELD THAT:- The approving authority is necessarily required to objectively evaluate such draft assessment order with due application of mind on various issues contained in such order so as to derive his/her conclusive satisfaction that the proposed action of AO is in conformity with subsisting law. AO is obligated to pass the assessment order exactly, as per approval/directions of the designated authority. Inevitably, this evaluation is to be made on the basis of material gathered at time of search as well as obtained in the course of the assessment proceeding. The requirement of law is to grant approval not merely as a formality or a symbolic act but a mandatory requirement. Section 153D of the Act bestows a supervisory jurisdiction on the designated authority in respect of search related assessment and thus enjoins a salutary duty of statutory nature. The designated superior authority is thus expected to confirm to the statutory requirement in letter and spirit. A bare glance at the approval so accorded makes it evident that such approval is generic and listless and accorded in a blanket manner without any reference to any issue in respect of any of the 5 assessment years. Apparently, the approval has been granted on a dotted line without any availability of reasonable time which firms up the belief towards non application of mind. Besides, the approval has been granted in a consolidated manner for all assessment years for which voluminous assessment orders were prepared. The whole sequence of action apparently appears to be illusory to merely meet the requirement of law as an empty formality. It is also alleged on behalf of assessee that the draft assessment orders are not available on record which allegation has not been rebutted. The draft assessment orders showing some marking / initials etc. could have given a valuable input on the applicability of mind and could throw some light on objectivity applied owing to total silence on any delineation on these aspects in the approval memo. obligation of granting Approval acts as an inbuilt protection to the taxpayer against arbitrary or unjust exercise of discretion by the AO. The approval granted under section 153D of the Act should necessarily reflect due application of mind and if the same is subjected to judicial scrutiny, it should stand for itself and should be self-defending. There are long line of judicial precedents which provides guidance in applying the law in this regard. Approving authority did not mention anything in the approval memo towards his/ her process of deriving satisfaction so as to exhibit his/her due application of mind. We may observe that the above approval letter issued by the Addl. Commissioner merely says that the approval has been granted in view of the letter of the A.O. Approval granted by the superior authority in mechanical manner defeats the very purpose of obtaining approval u/s 153D. Thus Draft Assessment Orders were approved, solely relying upon the implied undertaking obtained from the Assessing Officers in the form of draft assessment orders that AO has taken due care while framing respective draft assessment orders and that all the observations made in the appraisal report relating to examination/investigation of seized material and issues unearthed during search have been stately considered by the AO seeking approval. Thus, the sanctioning authority had in effect abdicated its statutory functions and delightfully relegated its statutory duty to the subordinate AO, whose action the Additional CIT, was supposed to supervise. The addl. CIT in short appears to have adopted a short cut in the matter and an undertaking from AO was considered adequate by him to accord approval in all assessments involved. Manifestly, the Additional CIT, without any consideration of merits in proposed additions with reference to appraisal report, incriminating material collected in search etc. has proceeded to grant a simplicitor approval. This approach of the Additional CIT, Central has rendered the Approval to be a mere formality and cannot be countenanced in law .Decided in favour of assessee.
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Customs
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2024 (2) TMI 66
Validity of SCN issued by the respondent no.3, the Directorate of Revenue Intelligence, Mumbai Zonal Unit under Section 124 read with Section 28 of the Customs Act, 1962 - Penalty u/s 112(a) of the Customs Act - HELD THAT:- Reliance placed in the recent order passed by this Court in the case of PARVEZ SHAIKH VERSUS THE UNION OF INDIA ORS [ 2024 (1) TMI 1085 - BOMBAY HIGH COURT] wherein similar issues not only in regard to the adjudicating officer having jurisdiction to adjudicate the show cause notice in view of the decision of the Supreme Court in case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [ 2021 (3) TMI 384 - SUPREME COURT] but also on the delayed adjudication of show cause notice fell for consideration of this Court. This Court, in similar circumstances, had admitted the petition and had granted interim relief by way of stay to the show cause notice. It is opined that orders similar to the orders passed in the case of Parvez Shaikh need to be passed on the present petition - This petition be listed along with Writ Petition No.14770 of 2023 in case of Parvez Shaikh Vs. The Union of India Ors.
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2024 (2) TMI 34
Seeking provisional release of goods - Ethanol Absolute - requirement of furnishing Bank Guarantee - HELD THAT:- There is no dispute whatsoever in regard to the classification as accepted by this Court in the adjudication of the earlier Petition while granting provisional release of the goods in question. In fact it is surprising, when a stand is now being taken on behalf of the department, that all circumstances which were relevant in respect of the earlier adjudication although are present in regard to the import in question, however, the department is now taking a different approach by putting the Petitioner to different terms, namely that such provisional release would be permitted on the Petitioner s furnishing a bank guarantee. In this view of the matter, on similar imports a different yardstick cannot be applied by the department. Moreover, in our opinion, applying different parameters for the same goods would amount to an arbitrary action on the part of the Designated Officer. Apart from this, the approach is patently contrary to the orders passed by this Court in the earlier proceedings filed by the Petitioner. The Respondents are directed to forthwith permit clearance of Ethanol Absolute covered under two Bills of Entry for Ex- Bond bearing Nos. 9165548 and 9165550 both dated 11.12.2023 filed by Petitioner for home consumption as the Petitioner has already furnished a bond - petition allowed.
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2024 (2) TMI 33
Prayer for a Mandamus to release the consignment of Betel nut imported - prohibited goods or not - Section 110A of the Customs Act, 1962 - Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 read with Regulation 10(1)(l) of the Sea Cargo Manifest and Transshipment Regulation 2018 - Customs department challenging the order of Customs Authority for Advance Ruling HELD THAT:- When Ruling No.AAR/44/Cus/02/2017 dated 31.3.2017 was passed by the AAR, appeal was to be filed under Section 28-KA of the Customs Act, 1962 before the Appellate Authority as defined in Section 28E((ba) of the Customs Act, 1962 namely the Authority for Advance Rulings constituted under Section 245-O of the Income Tax Act, 1961. - Whether indeed the petitioner had resorted to falsehood or obtained Ruling dated 31.03.2022 from AAR by giving incorrect and false particulars or not cannot be decided under the supervisory jurisdiction under Article 226 of the Constitution of India. The jurisdiction of this Court under Article 226 of the Constitution of India cannot be transformed in an appellate jurisdiction especially when the an appellate remedy exist under the Statute under amended Section 28KA of the Customs Act, 1962 - Notification No.20/2015-2020 dated 25.07.2018 issued under the provisions of the Foreign Trade (Development and Regulation) Act, 1992 read with Foreign Trade Policy 2015-2020 was intended only to protect the domestic farmers so that there is parity in price and level playing. As long as custom duty is paid by the importers on the tariff value under Notification No.68/2022-Customs(NT) dated 12.08.2022 based on provisional assessment, there are no impediment in allowing provisional release of the imported consignment of betel nut . Therefore, even if, the imported consignment of betel nut is classified under residuary Chapter Sub Heading 0802 80 90 of the First Schedule to the Customs Tariff Act, 1975, it can be allowed to be cleared provisionally on payment of customs duty on the value in terms of Notification No.68/2022-Customs(NT) dated 12.08.2022 - the rights of the petitioner to clear the import consignments covered by W.P.No.11888 of 2023 provisionally under Section 110 of the Customs Act, 1962 shall be subject to payment of customs duty on the tariff value Notification No.68/2022-Customs(NT) dated 12.08.2022. Since there is a direction to the petitioner to pay customs duty by adopting transaction value in terms of Notification No.68/2022-Customs (NT) dated 12.08.2022, absolute confiscation of the imported consignment need not be ordered. They can be ordered to be released subject to payment of necessary customs duty on the Tariff Value in terms of Notification No.68/2022-Customs(NT) dated 12.08.2022. The Writ Petitions in W.P.Nos.7905, 7907, 7909, 7911, 7915, 7918 of 2023 27828 of 2022 challenging the Show Cause Notices which have been issued to the petitioners are directed to be disposed in accordance with the observations contained herein - petition allowed by remitting the case back to the respondent to re adjudicate Show Cause Notice No.17/2022 dated 28.08.2022 along with the other cases.
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2024 (2) TMI 32
Seizure of goods - Jurisdiction - Ethanol - goods fell under the provisions of the Bombay Prohibition Act or not, so that the State Excise Authorities could exercise any jurisdiction? - HELD THAT:- The concerned Excise officials involved in the seizure in question, appears to have not acted bonafide and as the law would mandate them to act. Prima facie they appear to have abused the powers vested in them under the Bombay Prohibition Act, in taking such brazen illegal action against the petitioners, contrary to the orders passed by this Court in permitting clearance and trading in the goods by declaring that the goods in question do not fall under the purview of the Bombay Prohibition Act. The petitioners stand maligned in the eyes of the public, apart from damaging of the petitioners business interest and the public image the petitioner would wield. Such a situation as brought about by the illegal seizure at the hands of the Excise officers would amount to not only a gross illegality but bring about a situation of absolute lawlessness in exercise of solemn public duties by such officials. Once there were orders passed by this Court and the same were binding, it was not permissible for the State Excise officers that without verification of all materials, they could resort to such drastic actions as assailed by the petitioners, merely for the reason that they have been conferred powers under the Bombay Prohibition Act. When law confers such drastic powers on the officers, it would also cast an onerous duty, for such powers to be exercised with great caution and responsibility, and only in public interest - in the facts of the case there can be no reason for the Excise officials to resort to the impugned actions, except to cater to the private interest of third parties. Any public servant vested with such serious powers as conferred on them in law, cannot be expected to abuse such powers. Thus, when it was a clear case that the goods in question were not prohibited goods and which were being dealt by the petitioners lawfully, the Excise Officials disregarding all canons of law, could not have painted the petitioners as some criminals. The goods shall be released without the department waiting for a copy of this order, as the officer concerned is present before the Court - The substantive prayers in the petition would not require any further adjudication in view of the statement as made on behalf of the respondents in regard to release of the petitioners goods. Petition disposed off.
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2024 (2) TMI 31
Smuggling - Sandalwood - Acquittal of accused - double presumption in favour of the accused - HELD THAT:- The Trial Court acquitted the respondent on the ground that no evidence was shown to prove that the respondent is Customs House Agents and they packed and kept the boxes and had an intention to attempt to export Sandal Wood, illegally, to Singapore. Admittedly, the sandalwood had arrived at Tuticorin two months before, and arrangements were made to cancel the shipping bill. Accordingly, it cannot be said that the accused had an intention to evade to pay the customs duty levied by the customs department by crossing the green gate and having escaped by wrong declaration contravening under Section 135 of the Customs Act. There are no documents on record to show that the accused forged the documents and produced the same before anybody. There is absolutely no evidence to show that the respondent is the owner of the sandalwood. Therefore, the prosecution failed to prove its case beyond any doubt and the Trial Court rightly acquitted the respondent. Thus, it is clear that since because the Trial Court acquitted the accused, the Appellate Court cannot interfere with the order of acquittal without any substantial and compelling reasons. There cannot be any dispute in regard to the legal proposition that an Appellate Court while entertaining an appeal from a Judgment of acquittal would not ordinarily interfere therewith, if two views are possible. In the case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the Trial Court. The prosecution failed to prove its case beyond any doubt. Therefore, there is absolutely no ground to interfere with the order of acquittal passed by the Trial Court as against the respondent and the Criminal Appeal is liable to be dismissed.
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2024 (2) TMI 30
Smuggling - Sandalwood - Acquittal of accused - double presumption in favour of the accused - HELD THAT:- The Trial Court acquitted the respondent on the ground that no evidence was shown to prove that the respondent is Customs House Agents and they packed and kept the boxes and had an intention to attempt to export Sandal Wood, illegally, to Singapore. Admittedly, the sandalwood had arrived at Tuticorin two months before, and arrangements were made to cancel the shipping bill. Accordingly, it cannot be said that the accused had an intention to evade to pay the customs duty levied by the customs department by crossing the green gate and having escaped by wrong declaration contravening under Section 135 of the Customs Act. There are no documents on record to show that the accused forged the documents and produced the same before anybody. There is absolutely no evidence to show that the respondent is the owner of the sandalwood. Therefore, the prosecution failed to prove its case beyond any doubt and the Trial Court rightly acquitted the respondent. Thus, it is clear that since because the Trial Court acquitted the accused, the Appellate Court cannot interfere with the order of acquittal without any substantial and compelling reasons. There cannot be any dispute in regard to the legal proposition that an Appellate Court while entertaining an appeal from a Judgment of acquittal would not ordinarily interfere therewith, if two views are possible. In the case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the Trial Court. The prosecution failed to prove its case beyond any doubt. Therefore, there is absolutely no ground to interfere with the order of acquittal passed by the Trial Court as against the respondent and the Criminal Appeal is liable to be dismissed.
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2024 (2) TMI 29
Time limitation for issuance of SCN - demand involved is for the imports of Crane and Grab vide Bills of Entry No.147807 dated 04.02.2010 and No. 149946 dated 18.03.2010, whereas the demand SCN No. S/43-03/SIIB/2012-13 was issued on 29.01.2014 - HELD THAT:- The SCN dated 29-01-2014 and orders thereon have relied upon the Explanatory Notes which are only for official use by Officers for general guidance, but they are not accessible to the general public and they are also not in chapter notes under chapter 89 for 8905. As per the provisions of Customs Act, 1962 read with CBEC s Customs Manual, determination of correct rate of duty based on correct classification was fasten on the proper officer of the Customs prior to self assessment era before 08-04-2011. Therefore, when such explanatory Notes were not taken into consideration or followed inadvertently or otherwise for the said imports of Crane and Grab vide Bills of Entry No.147807 dated 04.02.2010 and No. 149946 dated 18.03.2010, Appellant alone cannot be held responsible for suppression of the facts or Appellant has deliberately mis-classified goods in order to evade payment of the customs duty, when all relevant information and documents are submitted by the Appellant while filling the said Bill of Entry, in question. It is settled position in law that unless allegation of suppression of facts or mis-statement with intention to evade payment of duty is supported by credible or clinching independent evidence, the same cannot be sustained merely on unsustainable allegations. This being a case of interpretation regarding classification of imported crane and Grab, in absence of any clinching evidence to evade payment of duty, charge of suppression of facts, willful misstatement, fraud, etc., cannot be levelled, for initiation of SCN beyond the normal time limitation. Extended period cannot be invoked in every case of short payment of duty, but only in cases of wilful and deliberate suppression of fact having element of deception or malpractice is required to prove wilful and deliberate suppression of fact with intent to evade duty and this is not the case of wilful/deliberate suppression. It is settled law that there must be deliberate attempt by Appellant to suppress facts from Department with intention to evade payment of customs duty, which is not existing in facts of this case. Merely change in view by another authority after clearance of goods regarding classification, cannot be held against the appellant as view of assessee was also based on documents and it was approved by the authorities, when the Bill of Entry was assessed and the said goods were allowed clearance for home consumption. It is found that the various decisions of the tribunal hold such view. Consequently, extended period under Section 28(4) of the Customs Act, 1962 cannot be legally invoked in the SCN or upheld subsequently. Accordingly, since duty demand is not sustainable, consequential imposition of interest, fine and penalties on appellant under provisions of Customs Act 1962 shall also not be sustainable. The duty demand is clearly hit by Time limitation. Since the entire demand is under extended period, the impugned order is set aside by setting aside the entire duty demand and consequential imposition of interest, fine and penalties. The appeal is allowed only on the ground of time bar.
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2024 (2) TMI 28
Rejection of the request for amendment of the shipping bills on the ground of limitation - HELD THAT:- As the request for amendment is made after three Months time as prescribed in Board Circular No. 36/2010 dated 23.09.2010, the request cannot be granted. The very same issue was considered by the Tribunal in the case M/S. AUTOTECH INDUSTRIES (INDIA) PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS CHENNAI IV COMMISSIONERATE [ 2021 (11) TMI 518 - CESTAT CHENNAI] . The Board Circular was also considered by the Tribunal to hold that during the relevant period, there is no specific time limit prescribed in Section 149 to request for amendment of shipping bill. The Hon ble High Court of Bombay in the case of COLOSSUSTEX PRIVATE LIMITED AND TODI RAYONS PRIVATE LIMITED VERSUS UNION OF INDIA, THE CENTRAL BOARD OF EXCISE AND CUSTOM, THE DEPUTY COMMISSIONER OF CUSTOM, MAHARASHTRA, THE COMMISSIONER OF CUSTOM NS-II, THE ASSISTANT COMMISSIONER OF CUSTOMS NS-II, RAIGAD, [ 2023 (9) TMI 313 - BOMBAY HIGH COURT] had occasion to consider the Board Circular prescribing a period of three Months to request for amendment of shipping bill. The Hon ble Court held that as Section 149 prior to its amendment, does not prescribe any time limit, the Board vide Circular cannot impose a time limit so as to decline the request for amendment of shipping bill. The rejection of request for amendment of shipping bill is not justified. The impugned order is set aside - Appeal allowed.
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2024 (2) TMI 27
Revocation of Customs Broker license - forfeiture of security deposit - penalty - fraudulent exports - exporting goods described as Floor Covering (Braided) of Man Made Fiber under claim of Duty Drawback provisions and Focus Product Scheme - mis-declaration of description and value - existence of mens rea or not - HELD THAT:- The impugned order has clearly elucidated the manner in which the appellant had contravened the provisions of the CBLR, 2018. The fact is noted that investigations have revealed that the appellant was in touch with Shri Kultar Singh and relied on him for the IEC codes. It is also found that the appellant did not independently verify the actual IECs holder of the said six firms i.e. M/s Dwarka Trading Company, M/s Aadarsh Enterprises, M/s Shree Balaji Trading, M/s Shree Durga Fashion, M/s Apex Trading and M/s Kanak Fashion. It is also established that the appellant was well aware that Shri Kultar Singh was exporting the goods through dummy firms. It is thus evident that the appellant had not verified the correctness of Importer Exporter Code (IEC) number, Goods and Services Tax Identification Number (GSTIN), identity of his client and functioning of his client at the declared address as required under the CBLR, 2018. The arguments of the learned counsel that the appellant was unaware of the nature of the goods, nor was he aware of the misdeclaration or undervaluation of the export goods, cannot be accepted. The serious contraventions of the CBLR, 2018 stand established. Existence of mens rea - HELD THAT:- In the instant case, it has been noted above that the appellant had actively connived with the main player Shri Kultar Singh. It is also on record that it was the appellant who had suggested the description of the goods in the export documents. It is also on record that the appellant charged extra for clearance of the cargo, which was paid in cash without any bill. It is also on record that samples of the goods sought to be exported were shown to the appellant. However, the appellant neither advised his client correctly nor did he inform the appropriate authorities. The facts and circumstances of the case as discussed above are sufficient to establish the mensrea of the appellant. The adjudicating authority has not committed any error in holding that the Custom Broker Firm/appellant have failed in the compliance of the responsibilities cast upon them as per Regulation 10(a), (d), (e) and (n) of the Customs Broker Licensing Regulation, 2018, and the consequent action for revoking the CB license, forfeiting the security deposit and imposing penalty. Consequently, the appeal stands dismissed.
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2024 (2) TMI 26
Revocation of CB license - forfeiture of the security deposit - imposition of penalty under Regulation 18 of CBLR 2018 - time limits prescribed in the Customs Brokers Licensing Regulation, 2018 have not been followed - HELD THAT:- After examining the decisions in Krishna Shipping and Allied Services [ 2023 (10) TMI 249 - CESTAT AHMEDABAD] , Tribunal comes to conclusion that time limits prescribes are mandatory. Thus, the time limits prescribed in the CBLR, 2018 have not been followed in this case as an apparent. In these circumstances it cannot be continued as the actions of revenue under CBLR are barred by limitation prescribed by CBLR, 2018. Appeal allowed.
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2024 (2) TMI 25
Confiscation of goods and redemption fine - Exemption under Advance Authorization Scheme in terms of N/N. 18/2015-Cus - import of copper concentrate - demand of IGST in terms of Section 28(4) of the Customs Act, 1962 - HELD THAT:- The appellant had filed prior bill of entry on 23.06.2017 for import of copper concentrate under Advance Authorization Scheme. The cargo was scheduled to arrive on 30.06.2017. The appellant had claimed benefit of Notification No. 18/2015-Cus, which granted exemption from duty of customs including CVD or SAD. For some reasons, the ship got delayed and arrived on 01.07.2017, by when the new GST regime was introduced. With effect from 01.07.2017, IGST became payable on imports. It seems both the importer as well as revenue were un-aware of these changes. The discharge of cargo commenced on 06.07.2017, after obtaining permission of the Customs Officer and was completed on 08.07.2017. As there is no space in the customs area, the goods were directly transferred to appellant s premises as was the regular practice. The assessment of bill of entry was make on provisional basis on account of the valuation issued which was to be finalized after testing of goods. There was no mala fide involved in the instant case from the appellants. The entire procedure happened in supervision of the Customs Authorities. As soon as the appellant got to know about the changes in legislation they paid the duty and subsequently also paid the interest. The discharge of cargo commenced on 06.07.2017 with the permission of customs officer. From the facts of the case it is apparent that what happened in the instant case was a matter of regular practice. It was not as if the revenue was not aware that goods cannot be stored in jetty and have to be directly transferred to the factory premises. It all happened with the concurrence of the revenue and under close supervision. The entire IGST and interest thereon stands paid by appellant. The process of payment of IGST and interest was initiated by appellants themselves. In these circumstances initiating penal proceeding and invocation of extended period against the appellant is totally un-warranted. In the instant case also there is no seizure or provisional release of goods. In these circumstances, confiscation and imposition of redemption fine cannot be sustained. Consequently, the order against co-noticee also cannot succeed. There are no merit in the impugned order - The same is set aside, and appeals are allowed.
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2024 (2) TMI 24
Effective date of notification - whether the Notification No. 46/2015-Cus dated 17.09.2015 is effective from the date of notification i.e. 17.09.2015 or the date when it was offered for sale i.e. 21.09.2015? - liability to increased rate of duty - HELD THAT:- This Tribunal has taken a view that the notification shall come into effect only when the notification is offered for sale. Therefore, considering the decision in RUCHI SOYA INDUSTRIES LTD VERSUS C.C. -KANDLA [ 2020 (2) TMI 400 - CESTAT AHMEDABAD] , in the present case since notification was offered for sale on 21.09.2015 i.e. a date when the Notification No. 46/2015-Cus came into force. The decision in the appellant s own case cited above is directly applicable in the facts of the present case. In the present case the notification is effective from 21.09.2015 therefore, the appellant are not required to pay 5% increase in duty. Accordingly, the appellant are eligible for re-assessment of bills of entry on the basis of un-amendment Notification No. 46/2015-CUS at the rate of 7.5% duty. The impugned order is set aside and appeals are allowed.
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Insolvency & Bankruptcy
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2024 (2) TMI 23
CIRP - Moratorium against the company has been ordered - Home Buyers sought direction to Developer to complete the project in all respects and handover the possession of the allotted flats/apartments to the members of the Association of the homebuyers within the time specified - submission of appellants is that under the provisions of the IBC, there is no prohibition on proceeding against the directors/officers of the company, which is the subject-matter of moratorium under Section 14 of the IBC - HELD THAT:- The National Commission has not made any adjudication on the question whether the opposite party Nos. 2 to 9(the respondent Nos. 2 to 9) in the execution application were under an obligation to abide by the directions issued against the company. This issue has not been considered at all by the National Commission. There is no finding recorded by the National Commission that in view of any particular provision of the IBC, moratorium will apply to the directors/officers of the company. Only because there is a moratorium under Section 14 of the IBC against the company, it cannot be said that no proceedings can be initiated against the opposite party Nos. 2 to 9(the respondent Nos. 2 to 9) for execution, provided that they are otherwise liable to abide by and comply with the order, which is passed against the company. The protection of the moratorium will not be available to the directors/officers of the company. The impugned judgments and orders set aside - the execution application remitted to the National Commission - appeal allowed in part.
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2024 (2) TMI 22
Validity of order of liquidation of the Corporate Debtor based on the unanimous decision of the Committee of Creditors with 100% voting rights - Locus-Standi of the appellants - HELD THAT:- It is to be remembered that the Representatives of the Corporate Debtor were also present in the 7th CoC meeting and it cannot be brushed aside that the only Asset, which was on Lease for a period of 30 years, provided by Bekal Resorts Development Corporation Ltd. (BRDCL) was cancelled on 30.03.2022. In fact, the Corporate Debtor s Representatives, who were present during the meeting had mentioned that they had not assailed the termination of Lease Agreement till the start of the CIRP date. Also, that the Resolution Professional was unable to take any action in as much as the Termination of the Lease Agreement was more than 10 months before the CIRP and BRDCL had informed of not changing its decision through its letter dated 15.03.2023. Merely because there were No Assets and no option for revival of the Corporate Debtor an unanimous 100% decision was taken by the Committee of Creditors in its commercial wisdom to liquidate the Corporate Debtor. The commercial wisdom of the Committee of Creditors is to be respected subject to the limited judicial review, that was available to the Adjudicating Authority / Tribunal. Also that the commercial wisdom of Committee of Creditors is beyond the ambit of challenge, pertaining to the decision taken for liquidation of the Corporate Debtor being essentially a business decision based upon the commercial wisdom and keeping in view the ingredients of Section 33(2) of the I B Code, 2016 and the explanation thereto. In law, when the Resolution Plan is in accordance with Section 30 and 31 of the Code, the Resolution Plan was to be approved. Whether the Adjudicating Authority/Appellate Tribunal, it cannot enter into any analysis to judge, as to whether the prescription of the Resolution Plan results in maximization of the value of assets are not as per decision of Hon ble Supreme Court in Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd. [ 2021 (3) TMI 1143 - SUPREME COURT ]. As far as the present case is concerned, commercial decision taken by the Committee of Creditors was in fulfilment of the relevant provisions of the I B Code, 2016 and Regulations, especially in the teeth of Regulation 40D of the IBBI Corporate Persons Regulations, 2016 - The I B Code, 2016 does not any way spell out any such opportunity being provided to the Appellants (Promoters/Shareholders), at the time of passing of the Liquidation order and they don t have any semblance of any legal right or vested right to oppose the Liquidation order before the Adjudicating Authority/Tribunal in the considered opinion of this Tribunal. Viewed in that perspective the Appellants in the instant Appeal are not to be characterised as Aggrieved Persons within the parameters of Section 61 of the I B Code, 2016. This Tribunal taking note of the rival contentions advanced on either side is of the earnest opinion that in the present case the only Asset to Corporate Debtor, which was on Lease for 30 years was cancelled on 30.03.2022 there were no Assets and no option for the resurrection /revival of the Corporate Debtor, the 100% unanimous decision taken by the Committee of Creditors, in its commercial wisdom to Liquidate the Corporate Debtor is not to be interfered with by this Tribunal because of the limited power of judicial review . Appeal dismissed.
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Service Tax
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2024 (2) TMI 21
Rejection of Refund claim - appellant acted as intermediary or not - providing sales promotion and other sales support services to its associated company, located outside India - HELD THAT:- There are no reason to entertain the present Civil Appeal, the same is accordingly dismissed.
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2024 (2) TMI 20
Seeking permission to withdraw writ petition - Maintainability of petition - SCN issued beyond the period of limitation prescribed under Section 73 of the Finance Act, 1994 - HELD THAT:- The petition is dismissed as withdrawn reserving the right of the petitioner to take all permissible pleas in law in response to the show cause notice. Petitioner shall file a reply to the show cause notice within a period of 30 days from today. Thereafter, it would be open to the adjudicating authority to adjudicate the show cause notice including the question of invocation of extended period of limitation in accordance with law, after giving an opportunity of personal hearing to the petitioner, without being influenced by anything stated in this order. Petition disposed off.
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2024 (2) TMI 19
Maintainability of petition - availability of alternative and efficacious remedy - validity of the demand-cum-show cause notice dated 23-4-2021 as well as the order-in-original - HELD THAT:- in the light of the observations made by the Supreme Court of India in the herein before referred case of THE STATE OF MAHARASHTRA AND OTHERS VERSUS GREATSHIP (INDIA) LIMITED [ 2022 (9) TMI 896 - SUPREME COURT] , the existence of an alternative relief would dissuade the Court from entertaining the writ petition. Therefore, the cases cited by the Learned Counsel for the petitioner is not found to help the petitioner. Hence, the Court finds no reason to burden this order with the discussion on the same because reliance has been placed on the case of Greatship (India) Ltd. The Court is of the considered opinion that as the writ petition does not disclose any documents by which prima facie satisfaction can be recorded that all receipts for which TDS was deducted which is reflected in Form 26AS are entitled for exemption, hence, the decisions cited by the petitioner cannot be applied under the facts unique to this case. The direction to relegate a taxpayer to avail statutory remedy, which is more efficacious is the principle of self-restrain adopted by the constitutional Courts. Therefore, as alternative and efficacious remedy is available to the petitioner, this Court is not inclined to entertain this writ petition and therefore, this writ petition challenging the legality of the impugned order-in-original No. 30/Pr.Commr./ST/GHY/2021-22, dated 14-3-2022 stands dismissed at the motion stage without issuance of notice upon the respondents. Petition dismissed.
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2024 (2) TMI 18
Recovery of service tax - GTA Service or not - amount of freight paid for the inward of the goods - suppression of facts or not - Time limitation - HELD THAT:- A plain reading of Notification 31/2012 dated 20.06.2012 makes it clear that exemption from service tax is provided under reverse charge to an exporter for the transport of goods from any Inland Container Depot to a port or Place of removal to ICD. It is noted that the said notification does not provide any exemption for the receipt of goods into the factory. Consequently, any availment of exemption of service tax on such inward receipt of goods is incorrect. Time Limitation - HELD THAT:- From the facts as recorded in the impugned order, it is apparent that the appellant was filing his ST-3 returns and the returns in the form EXP-2 regularly. It has been alleged in the impugned order that the appellant had submitted the EXP-2 and ST-3 returns to the Commissioner(Appeals) who has rejected the same by holding that the appellant had failed to file invoices along with the returns - once the EXP-2 was filed, the responsibility lies with the Department to examine/ scrutinise the returns in a timely manner, and point out any shortfall/discrepancies to the exporter/appellant. The Department never raised any the objection regarding any irregularity or highlight that invoices were not filed. Further, the Department has not brought any evidence on record to show that the appellant had suppressed any material fact in order to evade the payment of service tax. This was not done and thereafter to allege suppression with an intent to evade payment of tax to justify the demand cannot be upheld. The demand is barred by limitation. Accordingly, the impugned order is set aside - Appeal allowed.
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2024 (2) TMI 17
Classification of the services rendered - to be classified under Construction of Complex Service for the period April 2006 to March 2011 or not - HELD THAT:- The appellant submits that during the period they have executed composite contracts involving material which are rightly classifiable as works contract service. In view of the decision of the Hon'ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS [ 2015 (8) TMI 749 - SUPREME COURT] , the appellant s contention needs to be examined afresh. The appellant also submits that the adjudicating authority has not extended the abatement for the demands confirmed under works contract service . It is their contention that these contracts were also executed with materials and hence they are eligible for abatement. Their submission that some of the contracts executed by them are not liable to service tax also need to be examined along with relevant documents. The demand confirmed in the impugned order under construction of complex service and works contract service needs to be examined afresh. Accordingly, the demands confirmed in the impugned order is set aside and matter remanded back to the adjudicating authority for deciding all the issues afresh. The appeal filed by the appellant is disposed of by way of remand to the adjudicating authority.
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2024 (2) TMI 16
Levy of Service Tax - TDS portion of the foreign currency remittance made by the Appellant for the services received - HELD THAT:- The appellant has imported services from the foreign service provider and paid the consideration as indicated in the invoice. No TDS has been deducted by them from the invoice value. The TDS paid by them was to comply with the provisions of the Income Tax Act - the contention of the Appellant is agreed upon that the amount would not be part of the consideration for the taxable services received by them as per Section 67(1)(a) of the Finance Act, 1994. Accordingly, service tax is not payable on the TDS paid by the appellant on behalf of the foreign service provider. The issue is no longer res integra as the same issue has already been decided by the Tribunal in the case of ADANI BUNKERING PVT. LTD VERSUS COMMISSIONER OF C.E., AHMEDABAD-II [ 2024 (1) TMI 984 - CESTAT AHMEDABAD] wherein the Tribunal has held that TDS deposited to the Income Tax Department in relation to the payment made to the foreign service provider over and above the invoice value of the services, is not liable to service tax. The appellant is not liable to pay service tax on the TDS paid by them on behalf of the foreign service provider - the demand confirmed in the impugned order is not sustainable and the same is set aside - appeal allowed.
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2024 (2) TMI 15
Valuation of service tax - inclusion of TDS paid by the appellants to the Income Tax Department, in terms of Section 195A of the Income Tax Act, should in the gross amount for the purpose of calculation of service tax payable by the appellants in terms of Rule 2 (1)(d)(iv) of Service Tax Rules, 1994 read with Section 66A of Finance Act, 1994 - time limitation - HELD THAT:- The Tribunal has referred to the judgments of the Tribunal in the case of Indian Additives Ltd. [ 2018 (6) TMI 523 - CESTAT CHENNAI] and Centre for High Technology [ 2018 (8) TMI 243 - CESTAT NEW DELHI] and concludes that the amount of TDS paid is not includable in the gross value for the purpose of payment of service tax - It is further found Commissioner (Appeals) in the Order dated 20.09.2019, for the further period, holds that the agreement provides for payment of TDS by the appellant in addition to the consideration paid to the overseas service providers and they have not deducted the same from the payment made to the overseas service providers. There are no reason to come to a conclusion that the facts of the case are different as submitted by the learned Authorized Representative for the Department. Moreover, we find that the impugned show-cause notice and the Order do not base their arguments on the conditions of the contract; they hold that TDS per se is includable in the gross value for calculation of service tax - the impugned show-cause notice and the Order do not base their arguments on the conditions of the contract; they hold that TDS per se is includable in the gross value for calculation of service tax. In view of the judgments discussed or cited above, principally, the same is not tenable. Extended period of limitation - HELD THAT:- There is nothing in the show-cause notice and the impugned order to prove any of the ingredients like suppression, mis-statement etc. with intent to evade payment of service tax; therefore, no case is made for invocation of extended period. The appeal is allowed both on merits and limitation.
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2024 (2) TMI 14
Demand of service tax based on difference between the Balance Sheet and ST-3 return - Appellant was aware that service tax was short paid but still chose not to pay - suppression of facts for invoking extended period - HELD THAT:- The Revised Balance Sheet for F.Y 2009-10 has been duly audited. Thus, there was no reason for the Adjudicating Authority and the Department to not take its figures into consideration. On taking the Revised balance Sheet into consideration, it can be seen that the receipts decrease by Rs.81,15,826/-, which even otherwise leads to reduction in Tax demand of Rs.8,35,930/- at the rate of 10.30%, thereby wiping out any alleged service tax difference of Rs.7,72,960/- for F.Y 2009-10. It has been held in a catena of decisions that without any evidence, only the amount received by the Appellant was liable to Service Tax, amounts reflected in Balance Sheet cannot be used to determine the Service Tax liability. The Hon ble Madras High Court in FIRM FOUNDATIONS HOUSING PVT. LTD. VERSUS PRINCIPAL COMMISSIONER, OFFICE OF THE PRINCIPAL COMMISSIONER OF SERVICE TAX [ 2018 (4) TMI 613 - MADRAS HIGH COURT] held that the reporting of income in the P and L is irrelevant for the purposes of determination of service tax payable and thus the basis of the impugned assessment is erroneous. Moreover, income reflected in the Balance Sheet is for Income Tax purposes, which cannot be used for the purpose of service tax without any corroboratory evidence. The Hon ble Punjab Haryana High Court in COMMISSIONER OF CENTRAL EXCISE COMMISSIONERATE, LUDHIANA VERSUS M/S MAYFAIR RESORTS, NHI, JALANDHAR [ 2011 (3) TMI 175 - PUNJAB AND HARYANA HIGH COURT] held that the Department had to show evasion of Service Tax and that the money found with the assessee represented proceeds of services provided by it, which has admittedly not been done in the present case by the Department. Extended period of limitation - HELD THAT:- Mere non-payment of tax will not sustain the allegation of suppression of facts for invoking extended period as nothing has been shown which points towards any omission or commission by the Appellant which shows the intention to evade tax as held by M/S. MP. LAGHU UDHYOG NIGAM LTD. VERSUS CCE, BHOPAL [ 2014 (8) TMI 707 - CESTAT NEW DELHI] . It is found that the Department has not adduced any positive evidence to show malafide intention for evasion of service tax and therefore extended period is erroneously invoked as held in PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [ 1995 (3) TMI 100 - SUPREME COURT] and M/S CONTINENTAL FOUNDATION JOINT VENTURE SHOLDING, NATHPA HP VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH-I [ 2007 (8) TMI 11 - SUPREME COURT] . There can be no demand of Service tax of Rs.56,39,991/- and interest under Section 75 and penalty imposed under Section 78 of the Act is set aside - As far as interest demanded to the tune of Rs.30,585/- for the period F.Y 2009-2013 on late payment of the Appellants declared service tax liability, it is upheld only for normal period of limitation, i.e. for the period from October, 2012 to March, 2013 and rest is set aside - The demand of Rs.1,100/- for late filing of ST-3 Returns pertains to the period April, 2012-June, 2012, which falls in the extended period and is therefore set aside. The appeal is partly allowed.
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Central Excise
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2024 (2) TMI 13
Clandestine removal - manufacture and sale of brass/copper patti and sheets - entire case is booked solely based upon private records and statements of alleged purchasers/buyers of said goods - HELD THAT:- During investigation no evidence of any unaccounted money having been received by the appellant from any of the buyers was found. In fact investigation was not conducted at factory premises of buyers. Neither there was any entry in their private records showing any unaccounted payment made by them to the appellant. No evidence at all from the buyers located outside Gujarat to whom the goods was sold by the appellant has been produced. The record and the statement of the buyers are also inconclusive and not admissible as evidence and these persons were also in the nature of co-accused. No instance of any money having been received through any agencies have been cited in the show cause notice. Admittedly no evidence of the appellant having received the huge amount in unaccounted manner from buyers to whom goods was sold was found. Not a single instance of cash receipt at appellant s end is on record. In such case when the allegation is based upon the statements of buyers which is not supported by even a single evidence, we are of the view that the demand does not sustain. It is evident from the fact that cogent evidence of disproportionate power consumption, capacity utilization and labour employed, or any cogent evidence of clandestine manufacture of unaccounted quantity alleged as clandestinely removed were not produced by the department. It is evident that unaccounted production in the factory of the Appellant has not been established and therefore the case of clandestine clearance of goods by the Appellant does not stand. The allegation of minor shortage of 1934 Kgs of copper sheet and 617 kgs. brass sheets is also not supported by any evidence as Panchnama dated 05.01.2015 does not record any mode of stock taking or weighment of the finished goods during panchnama proceedings - such allegation of clandestine clearance of goods based merely on above shortage of stock is not sustainable. The demands and penalties made against the appellants is not sustainable and accordingly the impugned order is set aside - appeal allowed.
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2024 (2) TMI 12
Refund of wrongly paid Central Excise Duty on Retail Sale Price (Maximum Retail Price- MRP) - period of January and February, 2007 - Section 11B of the Central Excise Act, 1962 - whether the refund of duty, if eligible, is payable to the appellants instead of being credited to the Consumer Welfare Fund in terms of Section 11B ibid? HELD THAT:- In order to determine whether the claim for refund is eligible to be refunded to him, a person has to submit to the jurisdictional authority within the prescribed period, an application for refund in the form and manner prescribed thereof, providing the documents to establish that the refund amount which is claimed was collected from him or paid by him, and the incidence of such duty had not been passed on by him to any other person. The amendments made in the said legal provisions, one given only for completeness, as these came into effect subsequent to the disputed period and thus do not have any impact and are not relevant to the present case in hand. Notification No. 2/2006-C.E. (N.T.), dated 1-3-2006, as amended, issued in exercise of the powers conferred by sub-section (1) and sub-section (2) of section 4A of the Central Excise Act, 1944 (1 of 1944) provide for the list of goods on which the payment of central excise duty has been prescribed on the basis of Retail Sale Price (MRP) along with allowable deduction towards abatement provided as the percentage of retail sale price in a Table annexed to the said notification. On perusal of the list of goods covered under the Retail Sale Price (MRP) based levy of Central Excise duty, as listed in the Table annexed to the said Notification, it is found that the goods classifiable under tariff item 3005 1000, 9018 3100, 5602 1000 being manufactured and cleared by the appellants are not at all covered therein. The payment of duty on the basis of MRP/Retail Sale Price less abatement for two months by the appellants, is not required and the same being higher, in the present case, than the duty payable as per law, the differential higher amount paid in excess is refundable. Whether the amount of refund is payable to the appellants or is it payable to the Consumer Welfare Fund? - HELD THAT:- There is no case made out by the appellants in their appeal to claim for refund of higher excise duty and that it is liable to be refunded to them. It is also found that on the contrary the impugned order has clearly laid down with evidence as to why the refundable amount is payable to the Consumer Welfare Fund. Further, it is also found that despite a number of opportunities being given to the appellants for producing relevant documents for proving the element of unjust enrichment angle, particularly that the incidence of higher amount of excise duty having not been passed on by evidencing relevant credit notes for having credited respective amounts in the buyer s account, the same was not produced before the authorities below even at the time of de novo proceedings. Any refund of excise duty is required to be examined for all aspects of Section 11B ibid and in case of such refund being eligible to be paid, then in the absence of the proof of the burden of duty being not passed on to any other person, such refund is required to be credited to the Consumer Welfare Fund. The appeal filed by the appellants claiming for refund of higher excise duty paid by them instead of being credited to the Consumer Welfare Fund does not have any merits and is thus liable to be dismissed.
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2024 (2) TMI 11
Recovery of CENVAT Credit with penalty - denial on the ground that endorsed Bill of Entry is not a proper document for availment of CENVAT credit and Notifications issued for FMC and DFCE Scrips do not provide for transfer of credit - extended period of limitation - penalty u/r 26 of CER - HELD THAT:- Mere non-mention of the appellant as the supporting manufacturer, cannot take away the substantial benefit of CENVAT credit, looking into the fact that the appellant s name is mentioned in the Bills of Entry as a supporting manufacturer. Moreover, as submitted by the learned Counsel for the appellants, there is no bar on the importer to send the goods for job-work. It is not mentioned in the notifications under discussion that the job-worker should be a job-worker who is working under the provisions of Notification No.214/86. The fact that the ownership of the goods always remained with the importer i.e. M/s Hero Exports Ltd, the activity undertaken by the appellants is that of a mere job-worker. Further, if it was the case of the Department that the conditions of Customs Notification have been violated by the importer i.e. M/s Hero Exports Ltd, the importer should have been proceeded against for any such violation and not the appellant - the appellants having received the goods in the factory; having used the same in the manufacture and clearance of excisable goods cleared on payment of duty cannot be dis-entitled to the benefit of CENVAT credit. Extended period of limitation - HELD THAT:- The Department is not free to change the stand detrimental to the appellant/ assessee. Moreover, having issued the show-cause notice, it is not free for the Department to invoke extended period in the impugned show-cause notices which are subsequent to the show-cause notice dated 08.05.2009. Further, no element of suppression, mis-statement, fraud, collusion etc. with intent to evade payment of duty has been established against the appellants. Therefore, the Department has not made out any case for invocation of extended period - the impugned show-cause notices are barred by limitation. Penalties u/r 26 of CER - HELD THAT:- When the demand itself cannot be sustained, the question of imposition of penalties does not arise - the submissions of the learned Counsel for the appellants is agreed that penalty, under Rule 26, cannot be imposed on companies. Appeal allowed.
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CST, VAT & Sales Tax
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2024 (2) TMI 10
Refund claim - It is the case of the petitioner that bearing in mind the provisions of Section 38(3)(a)(ii) of the DVAT Act, the refund application was liable to be granted within two months from the submission of the revised return and thus latest by 31 May 2015 - it was held by High Court that The respondents are consequently directed to refund the amount of Rs. 6,62,74,405/- along with interest from the date it fell due - HELD THAT:- There are no. reason to interfere with the judgment and order(s) impugned passed by the High Court. Hence, the Special Leave Petition is dismissed.
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2024 (2) TMI 9
Proper forum - whether the direction issued by this Court to the petitioner herein to submit the necessary documents before the authority concerned was intended to mean the 'Tribunal' or the 'Assessing Authority'? - HELD THAT:- The expression authority concerned mentioned in the order dated 22.04.2022, was only meant the 'Tribunal' and not the 'Assessing Authority'. Resultantly, the orders of the second respondent dated 31.05.2022 were made erroneously assuming jurisdiction and thus, a nullity. As a sequitur , the orders dated 03.06.2023 passed by the 1st Respondent, which were made, on the premise that the orders dated 31.05.2022 of the 2nd Respondent are prejudicial to the interest of the Revenue, would no longer survive rather also become non est . Since it is found that the direction issued by this Court vide order dated 22.04.2022 made in W.P.Nos.34578 and 36676 to 36691 of 2015 has been misconceived by both the petitioner and the Revenue, in the peculiar circumstances, we are inclined to permit the assessee / petitioner herein to submit the documents in support of his claim before the Tribunal within a period of four weeks from the date of receipt of a copy of this judgment. Petition disposed off.
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2024 (2) TMI 8
Reversal of input tax credit - registration of the selling dealer was already cancelled - HELD THAT:- A combined reading of Section 19(15) and Section 40 of the Act will clearly indicate that in order to avail Input Tax Credit, a registered dealer has to furnish the original tax invoice of the sale evidencing amount of Input Tax and in case where registration certificate of the selling dealer is cancelled by the appropriate authorities, the purchasing dealer who had availed by way of Input Tax Credit shall pay the amount availed on the date from which the order of cancellation of registration certificate tax effected. Apart from that, the purchasing dealer shall by liable to pay interest also. Section 40 prohibits an unregistered dealer from collection any amount by way of tax. In the present case, admittedly, the petitioner has not produced the original tax invoice from a registered dealer and therefore, he cannot complaining that the authorities are attempting to reverse the Input Tax Credit in his favour. In fact, the petitioner has effected purchase five months after cancellation of the registration of the selling dealer. Since the registration of the selling dealer had already been cancelled in April 2008, he would not have paid the tax. Therefore, the allegation of the petitioner that the notice issued by the respondent authorities for reversing the Input Tax Credit would amount to double taxation is not legally sustainable. Though the petitioner has challenged the constitutional validity of a fiscal legislation, neither the grounds nor the submissions made on the side of the writ petitioner point out violation of any constitutional provisions. The present writ petition has been filed only to drag on the proceedings initiated by the respondent authorities for reversal of the Input Tax Credit. There are no merit in the writ petition. The writ petition stands dismissed.
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2024 (2) TMI 7
Classification of goods - granite stone block and pieces sold by the dealer - taxable under entry no.109 of the Schedule II Part A as per notification No.KANI-2-421/XI-9(1) dated 31.03.2011 or not - HELD THAT:- On an interpretation of the intention of the Legislature, the glazed stone, marble and marble chips have been specifically excluded from the definition of stone in Entry No.109. If the Legislature wanted to exclude granite stone, the same could have very well been done by the amendment carried out on March 31, 2011. If one were to agree with the submission made by the revenue, one would have to exclude several items that would ordinarily be termed as stone , which is not permissible in law. Upon perusal of the order passed by the Tribunal, one finds that the Tribunal has held that stones that have not been processed in any manner, would be included in Entry No.109 whereas processed stones that have gone through some kind of procedure would be excluded. The above finding is in consonance with the fact that glazed stone has been specifically excluded from Entry No.109. There is no scope of interference in the well reasoned order passed by the Tribunal, and accordingly, this revision petition is dismissed.
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2024 (2) TMI 6
Revision petition filed under Section 72 of the TVAT Act, 2004 - invoking Article 227 of the Constitution of India - HELD THAT:- Let CRP No. 45 of 2023, CRP No.46 of 2023 and CRP No.47 of 2023 be tagged along with the instant revision petition - List the matters on 05.12.2023. Prayer for dispensing the requirement of filing of certified copy of the impugned order as it has already been filed in the main matter, i.e. CRP No.44 of 2023 - HELD THAT:- Since photocopy of the common impugned order has been filed in the other connected revision petitions, the prayer for dispensing the requirement of filing of certified copy is allowed.
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2024 (2) TMI 5
Impleadment of additional respondent - refund claim - it is submitted that officer now designated to consider the refund application is the Additional Commissioner State Taxes (Administration), Darbhanga, who is not a party here - HELD THAT:- The Additional Commissioner State Taxes (Administration), Darbhanga is impleaded as the additional respondent herein suo motu - the Deputy Commissioner Commercial Taxes is directed to return the application filed, within a period of one week from today. The application shall be produced before the additional respondent i.e. Additional Commissioner State Taxes (Administration), Darbhanga. The application shall be considered, as having been filed in the year 2015 itself, in accordance with law, after hearing the petitioner, within a period of one month from the date of production of the certified copy of this judgment. Writ petition stands disposed of.
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Indian Laws
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2024 (2) TMI 4
Dishonour of Cheque - insufficient funds and account dormant - rebuttable presumption - seeking a direction to obtain the opinion of the handwriting expert after comparing the admitted signature of the accused appellant and the signature as appearing on the disputed cheque - HELD THAT:- The law is well-settled by a catena of judgments rendered by this Court that power to record additional evidence under Section 391 CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that nonrecording of such evidence may lead to failure of justice. Certified copy of a document issued by a Bank is itself admissible under the Bankers Books Evidence Act, 1891 without any formal proof thereof. Hence, in an appropriate case, the certified copy of the specimen signature maintained by the Bank can be procured with a request to the Court to compare the same with the signature appearing on the cheque by exercising powers under Section 73 of the Indian Evidence Act, 1872 - if at all, the appellant was desirous of proving that the signatures as appearing on the cheque issued from his account were not genuine, then he could have procured a certified copy of his specimen signatures from the Bank and a request could have been made to summon the concerned Bank official in defence for giving evidence regarding the genuineness or otherwise of the signature on the cheque. The presumptions under the NI Act albeit rebuttable operate in favour of the complainant. Hence, it is for the accused to rebut such presumptions by leading appropriate defence evidence and the Court cannot be expected to assist the accused to collect evidence on his behalf. So far as the allegation of the accused appellant that he did not receive the notice under Section 138 of the NI Act is concerned, it would be for the appellate Court while deciding the appeal to examine such issue based on the evidence available on record and thus, there was no requirement for the appellate Court to have exercised power under Section 391 CrPC for summoning the official from the Post Office and had rightly rejected the application under Section 391 CrPC. There are no infirmity in the impugned orders warranting interference - appeal dismissed.
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2024 (2) TMI 3
Maintainability of Revision Petition before the High Court when the petitioner has alternate remedies as per the - an ex-parte decree was passed against the respondent - Trial court refused to condone the delay - High Court, in a revision petition, contending that Trial Court was not right in dismissing the application seeking condonation of delay of 5767 days in filing the petition to set aside the ex-parte decree dated 15.02.1999. HELD THAT:- As against the ex-parte decree, a defendant has three remedies available to him. First, is by way of filing an application under Order IX Rule 13 CPC seeking for setting aside ex-parte decree; the second, is by way of filing an appeal against the ex-parte decree under Section 96(2) of the CPC and the third, is by way of review before the same court against the ex-parte decree. The filing of an application under Order IX Rule 13 CPC as well as the filing of appeal under Section 96(2) of the CPC against the ex-parte decree are concurrent remedies available to a defendant. However, once the appeal preferred by the defendant against the ex-parte decree is dismissed, except when it is withdrawn, the remedy under Order IX Rule 13 CPC cannot be pursued. Conversely, if an application filed under Order IX Rule 13 CPC is rejected, an appeal as against the ex-parte decree can be preferred and continued under Section 96(2) of the CPC. Thus, an appeal against an ex-parte decree even after the dismissal of an application under Order IX Rule 13 CPC is maintainable. When an application or petition filed under Order IX Rule 13 CPC is dismissed, the defendant can avail a remedy by preferring an appeal in terms of Order XLIII Rule 1 CPC. Thus, Civil Revision Petition under Section 115 of the CPC would not arise when an application/petition under Order IX Rule 13 CPC is dismissed. Thus, when an alternative and effective appellate remedy is available to a defendant, against an ex-parte decree, it would not be appropriate for the defendant to resort to filing of revision under Section 115 of the CPC challenging the order refusing to set aside the order of setting the defendant ex-parte. In view of the appellate remedy under Order XLIII Rule 1(d) CPC being available, revision under Section 115 of the CPC filed in the instant case was not maintainable. When there is an express provision available under the CPC or any statute under which an appeal is maintainable, by-passing the same, a Revision Petition cannot be filed. It is needless to observe that in the absence of an appellate remedy, a revision may be maintainable. The impugned order set aside on the ground that the said order was passed in a Civil Revision Petition which was not at all maintainable under Section 115 of the CPC. However, liberty is reserved to the first respondent herein to file an appeal under Order XLIII Rule 1(d) CPC, if so advised, on or before 31.12.2023 - appeal allowed.
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2024 (2) TMI 2
Dishonour of Cheque - Section 138 of NI Act - HELD THAT:- Since, the offence under Section 138 of the Act can only be initiated against the person who has issued the cheque, obviously, the proceedings against the petitioner who had not issued the cheque would be unsustainable especially when the only allegation alleged against the petitioner and her husband is of commission of an offence as contemplated under Section 138 of the Act. Consequently, the proceedings as against the petitioner shall stand quashed.
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2024 (2) TMI 1
Seizure of contraband item - 180 kgs. of Khat Leaves - offenses under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) - HELD THAT:- The Learned Sessions Judge was well justified in dismissing the petition for discharge. It cannot at this stage be said that the accusation is groundless. Having considered the facts and circumstances and having gone through the order passed by the Learned Sessions Judge, there are no reason to interfere. This petition is dismissed.
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