TMI Tax Updates - e-Newsletter
March 28, 2018
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
TMI SMS
Highlights / Catch Notes
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GST:
GST revenue collections for February 2018 (received in February/March upto 26th March) stand at ₹ 85,174 crore; ₹ 14,945 crore collected as CGST, ₹ 20,456 crore collected as SGST; ₹ 42,456 crores collected as IGST and ₹ 7,317 crores collected as Compensation Cess
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GST:
Job Work under GST - Requirement of registration for the principal/ job worker - Place of supply - Documents for movement of goods / intimation - Liability to issue invoice - Payment of tax - Availability of input tax credit to the principal and job worker.
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Income Tax:
TDS u/s 194I - the assessee was not liable to deduct any tax on payment of lease premium to MMRDA because it was capital expenditure to acquire land on lease with substantial right to construct a commercial building complex - AT
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Income Tax:
Penalty u/s 271(1)(c) - provision for leave encashment - dispute was only relating to the year in which the said expenses are allowable and not about the very deductibility of the said expenses as the genuineness of the same was neither disputed nor doubted - no penalty - AT
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Income Tax:
Disallowance towards mobilization of advances claimed by the assessee as sub-contract expenditure - no corresponding bills were raised against the assessee. In such circumstances, it is not possible to hold that the assessee actually incurred expenditure wholly and exclusively for the purpose of business - AT
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Income Tax:
Merely observing that there was no agricultural product sold in the particular Financial Year under consideration and the certificate given by the Tehsildar is not that of relevant Assessment Year, cannot prove that the assessee has not proved his proper purchase and sold of the agricultural land. - AT
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Income Tax:
Addition u/s 14A - expenses towards exempted income - Disallowance had to be made only on an estimated basis with regard to the expenditure incurred for the purpose of earning tax free income. - AO directed to disallow 1% of exempt income - AT
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Income Tax:
Penalty u/s 271(1)(c) - The satisfaction of the Assessing Officer at the time of initiation of penalty proceedings, must indicate which of the two i.e. concealment of particulars of income or furnishing inaccurate particulars of income applies to the facts of this case or in the alternative, it must indicate that both apply to the facts of the case - HC
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Income Tax:
Reassessment u/s 147 - the reasons for initiation of the proceedings as assigned by the Respondent-Assessing Authority, prima facie, indicates that the Assessing Authority had sufficient and reasonable reasons to initiate such proceedings - petition dismissed as premature - HC
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Income Tax:
Additions u/s 41(1) - credit balance of creditors - the amount still remained unrecoverable as the creditors were untraceable - In any event, it could not be said that the liability had ceased or that any advantage had been taken by the assessee on account of this - No additions - HC
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Income Tax:
Reassessment u/s 147 - Even though there is merits of the reassessment proceedings, the Respondents will have to first show whether the Respondent is entitled to invoke jurisdiction u/s 147, 148 - HC
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Income Tax:
Valuation of land acquired from the partners in the partnership firm - provisions of sec. 45(3) are applicable in the hands of partners - but the same does not bar application of sec. 40A(2)(a) of the Act. - AT
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Income Tax:
Additions u/s 68 - genuineness of creditors - advance against sale of land - AO noted that stamp paper was issued by the Delhi Treasury on 22nd March, 2012 i.e., 02 years after the date of execution - According to Section 68 of the I.T. Act, assessee has to prove only the source of the credit. - AT
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Income Tax:
Additions u/s 68 - deposit of cash out of cash withdrawn by appellant from the same bank account for purchase of immoveable property - Due regard and latitude to human conduct and behaviour has to be given and accepted - no additions - HC
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Customs:
Seeks to impose anti-dumping duty on Veneered Engineered Wooden Flooring, originating in or exported from China PR, Malaysia, Indonesia and the European Union - Notification
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DGFT:
Amendment in import policy conditions of apples under Exim code 0808 10 00 of Chapter 08 of ITC (HS), 2017 - Schedule - 1 (Import Policy) - Notification
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Corporate Law:
Disqualifying the petitioner as Director in the company - all these companies are active companies even on date. In view of this position, the respondents shall forthwith take steps for removal of the petitioner’s name from the list of disqualified directors. - HC
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State GST:
Issues in respect of maintenance of books of accounts relating to additional place of business by a principal or an auctioneer for the purpose of auction of tea, coffee, rubber etc regarding. - SGST
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Indian Laws:
Order u/s 119 of the Income-tax Act, 1961 - For further extension of date for linking of Aadhaar with PAN while filing Income-tax returns
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Service Tax:
Refund of unutilized CENVAT credit - export of services - advisory services in respect of investments identified by overseas client and advise it with respect of investment opportunities in the companies - The activities rendered by the appellant would come within the purview of “MBCS” and the appellant is entitled for the refund benefit - AT
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VAT:
Rate of value added tax (VAT) - samosa - whether the rate of tax on Samosa should be 8% or 5%? - samosas are to be taxed at the rate of 8% for the first six months and, for the next six months, at the rate of 4%, on the basis that cooked food under the VAT Act attracted 4% - HC
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VAT:
Levy of tax on brand franchisee fees - no sales tax would be leviable on the assesseeon the amount received by the assessee as "brand franchisee fees" from the CBU in case of manufacture of beer - HC
Articles
Notifications
Customs-
17/0218 - dated
27-3-2018
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ADD
Seeks to impose anti-dumping duty on Veneered Engineered Wooden Flooring, originating in or exported from China PR, Malaysia, Indonesia and the European Union
DGFT-
56/2015-2020 - dated
27-3-2018
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FTP
Amendment in import policy conditions of apples under Exim code 0808 10 00 of Chapter 08 of ITC (HS), 2017 - Schedule - 1 (Import Policy)
GST - States-
10/2018-State Tax - dated
2-2-2018
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Arunachal Pradesh SGST
Rescission, the notification of the Government of Arunachal Pradesh, Department of Tax & Excise No. 66/2017 – State Tax dated the 29th December, 2017,
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GST/24/2017 - dated
1-2-2018
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Arunachal Pradesh SGST
Corrigendum - Notification No. 6/2018- State Tax (Rate), dated the 25th January, 2018.
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68/2017-State Tax - dated
1-2-2018
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Arunachal Pradesh SGST
The Arunachal Pradesh Goods and Services Tax (Thirteen Amendment) Rules, 2017.
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09/2017-State Tax (Rate) - dated
25-1-2018
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Arunachal Pradesh SGST
Amendments in the Notification of the Government of Arunachal Pradesh, Department of Tax and Excise, No. 45/2017- State Tax (Rate), dated the 14th November, 2017.
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08/2018-State Tax (Rate) - dated
25-1-2018
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Arunachal Pradesh SGST
Amendment in the Notification No. 1/2017 -State Tax (Rate), - Exempts the central tax on intra-state supplies of goods Old and used, petrol Liquefied petroleum gases (LPG) or compressed natural gas (CNG) driven motor vehicles.
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07/2018-State Tax (Rate) - dated
25-1-2018
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Arunachal Pradesh SGST
Amendments in the Notification of the Government of Arunachal Pradesh, Department of Tax & Excise, No.2/2017-State Tax (Rate), dated the 28th June, 2017.
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06/2018-State Tax (Rate) - dated
25-1-2018
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Arunachal Pradesh SGST
Amendments in the Notification of the Government of Arunachal Pradesh, Department of Tax & Excise, No.1/2017- State Tax (Rate), dated the 28th June, 2017.
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05/2018-State Tax (Rate) - dated
25-1-2018
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Arunachal Pradesh SGST
Seeks to exempt State Government’s share of Profit Petroleum from State tax.
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04/2018-State Tax (Rate) - dated
25-1-2018
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Arunachal Pradesh SGST
Notifies the following classes of registered persons who supply development rights to a developer, builder, construction company or any other registered person against consideration, wholly or partly, in the form of construction service of complex, building or civil structure.
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03/2018-State Tax (Rate) - dated
25-1-2018
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Arunachal Pradesh SGST
Amendments in the Notification of the Government of Arunachal Pradesh, Department of Tax & Excise, No.13/2017- State Tax (Rate), dated the 28th June, 2017
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01/2018-State Tax (Rate) - dated
25-1-2018
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Arunachal Pradesh SGST
Amendments in the Notification of the Government of Arunachal Pradesh, department of Tax & Excise No.11/2017- State Tax (Rate), dated the 28th June, 2017.
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09/2018-State Tax - dated
23-1-2018
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Arunachal Pradesh SGST
Notifies www.gst.gov.in as the Common Goods and Services Tax Electronic Portal.
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08/2018-State Tax - dated
23-1-2018
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Arunachal Pradesh SGST
Extends the time limit for furnishing the return by an Input Service Distributor in FORM GSTR-6.
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07/2018-State Tax - dated
23-1-2018
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Arunachal Pradesh SGST
Waives the amount of late fee payable return in FORM GSTR-6.
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06/2018-State Tax - dated
23-1-2018
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Arunachal Pradesh SGST
Extend the time limit furnishing the return FORM GSTR-5A.
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05/2018-State Tax - dated
23-1-2018
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Arunachal Pradesh SGST
Waiver the amount of late fee payable by any registered person for failure to furnish the return in FORM GSTR-5
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04/2018-State Tax - dated
23-1-2018
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Arunachal Pradesh SGST
Waives the amount of late fee payable furnish the details of outward supplies for any month/quarter in FORM GSTR-1.
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03/2018-State Tax - dated
23-1-2018
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Arunachal Pradesh SGST
The Arunachal Pradesh Goods and Services Tax (Twelfth Amendment) Rules, 2018.
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02/2018-State Tax - dated
23-1-2018
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Arunachal Pradesh SGST
Amendment in the Notification of the Government of Arunachal Pradesh, Department of Tax and Excise, No. 32/2017- State Tax, dated the 20th September, 2017
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01/2018-State Tax - dated
23-1-2018
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Arunachal Pradesh SGST
Amendments in the Notification of the Government of Arunachal Pradesh, Department of Tax and Excise, No. 8/2017-State Tax, dated the 31st August, 2017.
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67/2017-State Tax - dated
29-12-2017
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Arunachal Pradesh SGST
The Arunachal Pradesh Goods and Services Tax (Eleventh Amendment) Rules, 2017.
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66/2017-State Tax - dated
29-12-2017
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Arunachal Pradesh SGST
Appoints the 1st day of February, 2018, as the date from which the provisions of serial numbers 2 (i) and 2 (ii) of notification No. 24/2017 – State Tax dated the 7th September, 2017,
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65/2017-State Tax - dated
29-12-2017
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Arunachal Pradesh SGST
Waives the amount of late fee payable to furnish the return in FORM GSTR - 4
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64/2017-State Tax - dated
29-12-2017
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Arunachal Pradesh SGST
Notifies the registered persons having aggregate turnover of upto 1.5 crore rupees in the preceding financial year or the current financial year, furnish the details of outward supply of goods or services or both in FORM GSTR-1
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S.O. 159 - dated
26-3-2018
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Bihar SGST
Governor of Bihar clarifies that 100% tax exemption such hotels from the costumers shall have to be deposited in Government Treasury.
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S.O. 154-10/2018-State Tax (Rate) - dated
23-3-2018
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Bihar SGST
Amendment in the Notification of the Commercial Taxes Department, No.8/2017 – State Tax (Rate), dated the 29th June, 2017, and Notification No.38/2017- State Tax (Rate), dated the 13th October, 2017.
Circulars / Instructions / Orders
News
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GST revenue collections for February 2018 (received in February/March upto 26th March) stand at ₹ 85,174 crore; ₹ 14,945 crore collected as CGST, ₹ 20,456 crore collected as SGST; ₹ 42,456 crores collected as IGST and ₹ 7,317 crores collected as Compensation Cess
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India and China Agree to A Roadmap for Addressing Trade Imbalance
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Repayment of 8.24% GS 2018
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Order u/s 119 of the Income-tax Act, 1961 - For further extension of date for linking of Aadhaar with PAN while filing Income-tax returns
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NITI Aayog’s Atal Innovation Mission, AIM signs Statement of Intent with SAP
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SIDBI to celebrate its Foundation Day on 2nd April, 2018 in a unique way by understanding the work and lifestyle of its biggest stakeholder, i.e., Micro and Small Enterprises (MSEs); Under the initiative, around 175 SIDBI officials will be visiting their MSE customers pan India covering 23 States and around 80 Districts in different clusters
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Income Tax Offices to Remain Open on 29th, 30th and 31st March, 2018
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RBI Reference Rate for US $
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Calendar for Auction of Government of India Treasury Bills (For the Quarter ending June 2018)
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Government’s Borrowing Plan for First Half of Financial Year 2018-19
Case Laws:
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Income Tax
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2018 (3) TMI 1363
Penalty u/s 271(1)(c) - non strike off the two necessary ingredients for imposition of penalty namely; concealment of particulars of income or furnishing inaccurate particulars of income - non application of mind by AO - Held that:- Concealment of particulars of income or furnishing inaccurate particulars of income in Section 271 (1)(c) of the Act carries different meaning.
The satisfaction of the Assessing Officer at the time of initiation of penalty proceedings, must indicate which of the two i.e. concealment of particulars of income or furnishing inaccurate particulars of income applies to the facts of this case or in the alternative, it must indicate that both apply to the facts of the case. This is not having been done, prima facie, the impugned order dated 30th June, 2011 is not sustainable. This also would require consideration at the final hearing. - Decided in favour of assessee
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2018 (3) TMI 1362
Compounding of offence under Section 279(2) - application rejected for non-payment of compounding fees within the stipulated time - Held that:- As admittedly the instructions of CBDT dated 16th may, 2008 has not been followed, it would meet the ends of justice to quash and set aside the impugned order dated 26th February, 2015 of the Commissioner of Income Tax. The petitioners' application for compounding is restored to the stage when the order sheet noting on 21st February, 2014 was made by the Commissioner of Income Tax. The Revenue to now take further steps in accordance with law and as per procedure laid down by the CBDT in its above Circular dated 16th May, 2008 i.e. call upon the petitioners to explain the nonpayment of compounding fees within the stipulated time.
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2018 (3) TMI 1361
Stay of a demand u/s 220(6) - recovery of dues - non payment of pre deposit i.e. 20% - Held that:- The petitioner seeks extension of time to fulfill its above undertaking to the Principal Commissioner of Income Tax. In support, the affidavit of Mr. P.A. Gaikwad, the Chief Administrative Officer, dated 23rd March, 2018 has been tendered in Court on behalf of the petitioner. The same is taken on record. In the affidavit it is stated that out of ₹ 1,16,05,939/( being 20% of penalty of ₹ 5,80,29,698/), the petitioner has already paid a sum of ₹ 10 lakhs.
The affidavit undertakes to pay sum of ₹ 25 lakhs on or before 26th March, 2018 and the balance amount of ₹ 81,05,939/would be paid on or before 15th April, 2018. Mr. P.A. Gaikwad, the deponent of the affidavit is in Court and the statement made by him in the affidavit is accepted. The respondents are directed not to adopt any coercive action till 16th April, 2016 for recovery of its dues. It is made clear to the petitioner that no further extension of time to honour its commitment to the Revenue will be granted.
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2018 (3) TMI 1354
Reassessment u/s 148 -reasons to believe - Held that:- There was nothing concrete before the Revenue Authorities to reopen the case afresh the matter was contested till the level of Tribunal wherein the CIT(A) allowing assessee’s appeal was upheld by the Tribunal. Thus, the initiation of reassessment under 148 is bad in law. - Decided in favour of assessee
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2018 (3) TMI 1353
Short deduction and payment of TDS shown only due to some technical mistake in the TDS Return filed by the assessee - revised TDS Return for making the correction in the TDS amount - Held that:- We note that as per assessment order made by Income Tax officer(TDS), the total amount of TDS payable by assessee comes to the tune of ₹ 28,22,780/- and since the assessee has rectified the mistake, by filing revised TDS return and correction statements, as discussed above, therefore total TDS payable by the assessee comes to the tune of ₹ 12,860/-. We are of the view that these documents and correction statement should be examined by the assessing officer, therefore, we direct the assessing officer to examine the correction statement, TRACES and revised return of TDS filed by the assessee and adjudicate the issue in accordance with law.
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2018 (3) TMI 1352
Addition u/s 14A - expenses towards exempted income - borrowed funds had been utilized for making investments - Addition u/s 94(7) - short term capital loss - Held that:- The relevant assessment year under appeal is 2006-07 at which point of time, the provisions of Rule 8D was not in force and the same was made applicable only from Asst Year 2008-09 as decided in the decision of Godrej & Boyce Manufacturing [2010 (8) TMI 77 - BOMBAY HIGH COURT]. However, it is not in dispute that the assessee had derived taxable income as well as tax free income and incurred expenditure for deriving both the incomes and hence disallowance is definitely warranted in terms of section 14A which is brought in the statute book with retrospective effect from 1.4.1962. Disallowance had to be made only on an estimated basis with regard to the expenditure incurred for the purpose of earning tax free income. We direct the ld AO to disallow 1% of exempt income under this issue and accordingly, the Ground No. 1 raised by the assessee is partly allowed.
Addition made u/s 94(7) - AO observed that the assessee had reported short term capital loss in respect of sale of shares of SAIL among other scrips - Held that:- We find that the assessee had neither purchased before three months from the record date the shares of SAIL nor sold the same within three months after the record date. Hence we hold that the transactions carried out by the assessee would be outside the ambit of provisions of section 94(7) of the Act. Hence we hold that the short term capital loss claimed by the assessee need not be reduced by the sum of ₹ 9,44,243/- . Accordingly, the Ground No. 2 raised by the assessee is allowed.
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2018 (3) TMI 1351
Provisions for doubtful debt under the head ‘administrative and other expenses to its P & L account' disallowed - assessee netted off the said provision for doubtful debt against sundry debtors and claimed deduction - Held that:- CIT-A was justified in entertaining and deciding the issue regarding allowability of provisions for doubtful debts as business expenditure and deduction on bad debt therein is liable to be allowed. The Tribunal has discussed the issue thoroughly analyzing the facts of the case following the decision of the Hon’ble Supreme Court in the case of Vijaya Bank [2010 (4) TMI 46 - SUPREME COURT], that the provisions of doubtful debts have been duly adjusted against sundry debt and provisions for doubtful debt cannot be treated as uncertain liability - Decided in favour of assessee.
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2018 (3) TMI 1350
Additions u/s 68 - genuineness of creditors - advance against sale of land - validity of Agreement to Sell was executed on 12th March, 2010 between the parties - A.O. made investigation from Stamp Vendor etc. The A.O. recorded the statement of Stamp Vendor etc., and made further enquiry into the matter and noted that stamp paper was issued by the Delhi Treasury on 22nd March, 2012 i.e., 02 years after the date of execution. Valuation of property was found at lessor amount. - Held that:- The A.O. did not doubt existence of creditor and its creditworthiness. Thus, A.O. accepted identity of creditor and its creditworthiness and genuineness of the transaction. For proving case under section 68, assessee is required to prove identity of creditor, its creditworthiness and genuineness of the transaction, which assessee has proved in this case. The valuation of property may not be relevant to discard the explanation of assessee particularly when amount is returned in subsequent year.
There was no justification to make the addition under section 68 of the I.T. Act. - According to Section 68 of the I.T. Act, assessee has to prove only the source of the credit. In this case, it is not an ordinary credit, but, assessee has received advance against sale of the property. Therefore, the explanation of assessee should not have been doubted by the A.O - No additions - Decided against the revenue.
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2018 (3) TMI 1349
Valuation of land acquired from the partners in the partnership firm - Application of Section 40(2)(a) - The assessee has submitted that the provisions of sec. 40A(2)(a) will apply only to goods, services or facilities and the same will not apply to land. - it is further submitted that, the provisions of sec. 45(3) shall apply to the transaction of transfer of capital asset by a partner to the partnership firm and the provisions of sec. 40A(2) will not override the provisions of sec. 45(3) of the Act - Date on which partnership firm came into existence.
Held that:- Since the assessee is dealing in land, as stated earlier, it constitutes “goods” in its hands and since the payments have been made to partners (who are covered by sec. 40A(2)(b)), we are of the view that the AO was very much entitled to examine the payments made vis-a-vis the fair market value of the goods (land) in terms of sec. 40A(2)(a) of the Act. Hence, as per the provisions of sec. 45(3), the assessee firm might have made payments to the partners towards the cost of land, but the same does not bar application of sec. 40A(2)(a) of the Act.
We have noticed that the provisions of sec. 45(3) are applicable in the hands of partners. The objective behind provisions of sec. 45(3) and sec. 40A(2)(a) is different. Hence, in our view, sec. 45(3) cannot override provisions of sec. 40A(2)(a) of the Act. - Decided in favor of revenue.
Date on which partnership firm came into existence - Held that:- The ld. CIT(A), upon going through the documents relating to the plan approval, Partnership deed etc., came to the conclusion that the partners have applied for a common layout in 2002-03 in their personal names and no further action has been taken up to 2005-06. Thereafter, for the first time, the Partnership deed was executed on 31/05/2005 with retrospective effect from 19/05/2005. Accordingly, the ld. CIT(A) held that the Partnership firm came into existence only on 19/05/2005, as recorded in the registered partnership deed. - tax authorities have given proper reasoning to come to the conclusion that the partnership firm came into existence only on 19/05/2005 as per the registered partnership deed executed on 31/05/2005 - Decided against the assessee.
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2018 (3) TMI 1348
Nature of land sold - sale of agricultural land - AO held that the land sold by the assessee is clearly capital asset within the meaning of Section 2(14) (iii) (a) as it is situated within the notified area of Taj Express Way Industrial Development Authority - Held that:- Merely observing that there was no agricultural product sold in the particular Financial Year under consideration and the certificate given by the Tehsildar is not that of relevant Assessment Year, cannot prove that the assessee has not proved his proper purchase and sold of the agricultural land.
CIT(A) as well as AO made addition only on the ground that the said land is situated at the notified area of Taj Express Way Industrial Development Authority. The assessee has given all the documents before the CIT(A) as well as the Assessing Officer. As seen from the documents that the land was purchased and sold for agricultural purpose and there is no change of the utilization of the land. Land is not coming under the purview of notified area as per the certificate given by the Tehsildar. Thus, the said property does not come under the purview of Section 2(14) (iii) (a) as defined for capital asset. - Decided in favour of assessee
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2018 (3) TMI 1347
Disallowance of Commission paid to the Managing Director u/s 36(1)(ii) - Held that:- As decided in assess'e own case Hon’ble High Court held that the disallowance made on account of commission to Managing Director and to a whole time Director under Section 36(1)(ii) of the Act was correctly deleted by the ITAT.
Disallowance of excess HRA paid to Managing Director - Held that:- The same is also decided by the ITAT for A.Y. 2010-11. In present Assessment Year also the Assessing Officer made assumption that the assessee is providing undue benefit to the directors in the shape of high rentals and there was no adverse material/finding/evidence pointed out by the Assessing Officer. In fact, the HRA paid to the directors have to considered as perquisites in the hands of the Directors. Therefore, following the earlier decision of the ITAT we set aside this issue to Assessing Officer to verify whether such income has been treated as perquisites in the hands of the Managing Director and decide the issue accordingly.
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2018 (3) TMI 1346
Penalty proceedings u/s 271(1)(c) - deduction u/s 80HHC claimed - Held that:- In the present case the assessee has claimed the deduction under Section 80HHC on this basis of a certificate issued by the C.A., whether it is right or wrong claim does not assert that the assessee has furnished inaccurate particulars of income or concealed the income. Thus, the present case is squarely covered by the Hon’ble Apex Court decision and therefore, the appeal of the assessee is allowed.
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2018 (3) TMI 1345
Disallowance towards mobilization of advances claimed by the assessee as sub-contract expenditure - Held that:- The mere existence of an agreement between the assessee and the sub-contractor or making a payment by a cheque, does not bind the Assessing Officer to hold that the payment was made exclusively and wholly for the purpose of assessee’s business.
In the present case, though the assessee made payment of ₹ 2 crores to Mr. K. J. Paul, it was not shown as income in the hands of Mr. K.J. Paul by crediting the said amount in his P&L account and also no bills were raised with reference to this payment against the assessee. On the other hand, it was shown as advance in his hands and no corresponding bills were raised against the assessee. In such circumstances, it is not possible to hold that the assessee actually incurred expenditure wholly and exclusively for the purpose of business. No infirmity in the order of the lower authorities and the case law relied on by the assessee’s Counsel is of no assistance to the assessee as the facts of this case are entirely different from the facts of the present case. Accordingly, this ground of appeal of the assessee is rejected.
Disallowance of interest on mobilization of advances - Held that:- As submitted by assessee interest on mobilization advance was deducted by the awarder and it is to be considered as expenditure whether the awarder has deducted the interest out of the awardee. The amount has to be verified from the tender agreement entered into by the assessee with Cochin Port Trust. The oral argument of the assessee’s Counsel cannot establish that there is a condition in the tender agreement to deduct interest towards mobilization of advance given to the assessee by the awarder. Accordingly, we remit this issue to the file of the Assessing Officer to examine this issue with reference to the tender agreement entered into by the assessee with Cochin Port Trust. The Assessing Officer has to consider this issue afresh. Thus this ground of appeal of the assessee is allowed for statistical purposes.
Disallowance of depreciation on car and Disallowance of JCB hire charges - Held that:- Before us the assessee has not given any reasonable cause for not pressing these grounds before the lower authorities and agitate this issue before us. Accordingly, we find no reason to interfere with the order of the lower authorities on these issues. In view of the above, these grounds are dismissed as not emanating from the order of the CIT(A).
Allowability of the claim of 20% labour charges - main crux of the argument of the Revenue is that the assessee had given contract work to sub-contractor and the assessee claimed labour charges which is comparatively on a higher side - Held that:- The issue of incurring of labour charges is to be re-examined by the Assessing Officer with reference to bills and vouchers produced by the assessee and to disallow only that portion of labour charges expenditure which is excessive when compared to similar business. Remit this issue to the file of the Assessing Officer for fresh consideration. Thus this ground of appeal of the Revenue is partly allowed for statistical purposes
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2018 (3) TMI 1344
Levy of penalty u/s 271(1)(c) - addition made by the AO in respect of unverifiable purchases after rejection of books - Held that:- The issue of addition made by the AO in respect of unverifiable purchases after rejection of books has been set aside to the record of the AO for computing the income of the assessee by applying average GP rate of past history for a minimum 3 years. Since the matter in quantum appeal has been set aside to the record of the AO, therefore, the present penalty would not survive and accordingly we set aside the orders of the authorities below in respect of levy of penalty under section 271(1)(c). - Decided in favour of revenue for statistical purposes.
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2018 (3) TMI 1343
Adjustment of unabsorbed depreciation and carry forward of unabsorbed depreciation - carried forward for 8 years only - Held that:- This issue is covered in favour of assessee by the decision of Hon’ble Gujarat High Court in the case of General Motors India Pvt. Ltd. (2012 (8) TMI 714 - GUJARAT HIGH COURT) held any unabsorbed depreciation available to an assessee on 1st day of April 2002 (A.Y. 2002-03) will be dealt with in accordance with the provisions of section 32(2) as amended by Finance Act, 2001, thus once the Circular No.14 of 2001 clarified that the restriction of 8 years for carry forward and set off of unabsorbed depreciation had been dispensed with, the unabsorbed depreciation from A.Y.1997-98 upto the A.Y.2001-02 got carried forward to the assessment year 2002-03 and became part thereof, it came to be governed by the provisions of section 32(2) as amended by Finance Act, 2001 and were available for carry forward and set off against the profits and gains of subsequent years, without any limit whatsoever
Respectfully following the above, we confirm the order of CIT(A) and this issue of Revenue’s appeal is dismissed.
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2018 (3) TMI 1342
Penalty u/s 271(1)(c) - provision for leave encashment - Held that:- Mere making of the claim, which is not allowed by the AO by itself will not amount to furnishing of inaccurate particulars regarding the income of the assessee and merely because the assessee's claim for deduction has not been accepted and allowed in the year under consideration but allowed in the subsequent year penalty u/s 271(1)(c) cannot be attracted. The impugned disallowance of expenses was made by the AO on the ground that the same were not allowable in the year under consideration but allowable in the subsequent year as per the provision of section 43B of the act, it clearly shows that the dispute was only relating to the year in which the said expenses are allowable and not about the very deductibility of the said expenses as the genuineness of the same was neither disputed nor doubted.
It is an admitted position in the assessee’s case that no information given by the assessee with respect to claim made found to be incorrect or inaccurate. It is also not the case that any statement made or any details supplied were found to be factually incorrect. Therefore, it cannot be held guilty of furnishing inaccurate particulars of income. We find that in its case there is no finding that any details supplied by the assessee were found to be incorrect or erroneous or false. Such not being the case, the assessee cannot be put to question for levying the penalty u/s 271(1)(c)(1)(c) - Decided in favour of assessee.
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2018 (3) TMI 1341
Disallowing the interest expenses - Held that:- In this case, the facts are peculiar that the assessee himself stopped the AO from making further inquiry into nexus by admitting this disallowance. When this amount was contested by assessee in appeals, we are of the view that let the AO be also given fair opportunity to examine the nexus. In case he could not be able to establish the nexus he has to follow the decision of Hon’ble High Court in the case of Reliance Utilities and Power Limited (2009 (1) TMI 4 - BOMBAY HIGH COURT). We remand the matter back to the file of AO for fresh adjudication.
Disallowance of commission for short deduction of TDS u/s 194H - addition invoking the provisions of section 40(a)(ia) - Held that:- As regards to the short deduction of TDS no disallowance under section 40(a)(ia) of the Act can be made in view of the decision of Hon’ble Calcutta High Court in the case of CIT vs. S.K. Tekriwal (2012 (12) TMI 873 - CALCUTTA HIGH COURT) and CIT vs. Kishore Rao and Others (2016 (4) TMI 430 - KARNATAKA HIGH COURT).
Adhoc disallowance by invoking the provisions of section 40A(2b) being payments made to related parties - Held that:- Prices paid for purchase of jewellery by the assessee company seems to be fair and reasonable and therefore, no part of such price is required to be disallowed by invoking the provisions of Section 40A(2)(a) for the reason that the AO is unable to bring anything on record which proves that the price paid by assessee is excessive or unreasonable. Accordingly, we delete the disallowance and allow this issue of assessee’s appeal.
Disallowance of service charges on adhoc basis - Held that:- AO is unable to prove the non-genuineness of the expenditure despite the fact that the assessee has deducted TDS on this expenditure and also paid service charges. Further, entire details were available with the AO and he has not carried out any examination of any of the parties and without that adhoc disallowance at the rate of 25% of the expenditure was made. It means, that the AO has accepted the genuineness of the expenditure and once genuineness of the expenditure is accepted, AO cannot disallow the same on adhoc basis. We delete the disallowance and allow this issue of assessee’s appeal.
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2018 (3) TMI 1340
Computation of capital gains - STCG - claim of deduction of brokerage and legal expenses - improvement expenses - AO concluded that the said exps. were to be generally by the buyer and there was no proof of the exps., borne by the buyer. The appellant submits that the AO has failed to appreciate the understanding between the appellant and the buyer, apart from the explanation that the same were incurred normally in cash and the same be deducted from the sale consideration in case, they are paid initially by the purchaser. - Similarly, as regards the dalali expenses, there was no documentary proof.
Held that:- Any claim made by the appellant, which was not substantiated with any concrete proof. Such expenses cannot be allowed u/s.48 of Income Tax Act. - Decided against the assessee.
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2018 (3) TMI 1360
Additions u/s 68 - unexplained cash deposits - Peak cash credit - deposits were made on different dates and sometimes there were multiple deposits even on a single day. - There were also multiple withdrawals - Appellant claimed that the deposits were made in bank accounts belonging to him and his two minor sons - Held that:- Agreements to sell and receipt in cash were sham and make belief. This story was concocted after the appellant was cornered and confronted without answer before the AO, for the first time in the appellate proceedings. In view of the aforesaid factual background, we do not think that any substantial question of law arises for consideration. - additions confirmed - Decided against the assessee.
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2018 (3) TMI 1359
Reassessment u/s 147 where scrutiny assessment was made u/s 143(3) - validity of notice u/s 148 - change of opinion - AO rejected the objection furnished in response to reasons for reopening the case - re-appreciation of evidences already on record - Held that:- he Assessing Officer is not permitted to improve upon the reasons so furnished to the assessee. The validity of the initiation of the assessment proceedings will be determined only by the reasons furnished by the Assessing Officer to the assessee. If the reassessment proceedings are to be initiated after a period of four years on the ground that the assessee failed to make full and true disclosure of all necessary facts, then the Assessing Officer must state so in the reasons and the action must be founded on such reasons.
When the case was taken up for scrutiny, the Petitioner was confronted with the query as regards the agricultural income from the mushroom farming and the Petitioner had relied upon certain certificates.
The legal position is settled that even if such a statement is made, it is only a reproduction of the section and does not necessarily show the existence of this fact. But in the present case, even that statement is missing. Therefore, the Petitioner was not put to notice as to which information the Petitioner had failed to disclose which led to invocation of Sections 147, 148 of the Act. Thereafter, when the order was passed on 3 October 2017, it only refers to the decision which treated the mushroom farming as not an agricultural income.
That, however, is on the merits of the reassessment proceedings. The Respondents will have to first show whether the Respondent is entitled to invoke jurisdiction under Sections 147, 148 of the Act.
It is case of mere change of opinion - Assessment u/s 147 is not valid - Decided in favor of assessee.
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2018 (3) TMI 1358
Additions u/s 68 - deposit of cash out of cash withdrawn by appellant from the same bank account for purchase of immoveable property - Additional evidence in a form of a certificate issued by M/s. S.G. Realtors was filed. However, the appeal was dismissed observing that the certificate given by M/s. S.G. Realtors was not conclusive proof that the cash deposited was out of the ₹ 2,00,000/-, withdrawn earlier. - Onus to prove.
Held that:- Due regard and latitude to human conduct and behaviour has to be given and accepted when we consider validity and truthfulness of an explanation. One should not consider and reject an explanation as concocted and contrived by applying prudent man's behaviour test. Principle of preponderance of probability as a test is to be applied and is sufficient to discharge onus. Probability means likelihood of anything to be true. Probability refers to appearance of truth or likelihood of being realised which any statement or event bears in light of the present evidence (Murray's English Dictionary). Evidence can be oral and cannot be discarded on this ground. Assessment order and the appellate orders fall foul and have disregarded the preponderance of probability test.
Additions deleted - Decided in favor of assessee.
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2018 (3) TMI 1357
Additions u/s 41(1) - credit balance of creditors - unclaimed credit liability - it contended that, once the addition on account of unexplained credit added in A.Y. 2007-08 the same amount could not be added in A.Y. 2008-09 - Held that:- there is nothing on record to show that there have been cessation of trading liability or that some benefits have been taken in respect of the trading liability by the assessee. The necessary ingredients for invoking the provisions of Section 141 are two folds; firstly, there should have been a cessation of the trading liability and secondly that some benefit in respect of the trade liability had been taken by the assessee.
Out of total amount of ₹ 1 crore and odd, approximately 86 lacs had still remained unrecoverable as the creditors were untraceable. This is the finding recorded. In any event, it could not be said that the liability had ceased or that any advantage had been taken by the assessee on account of this.
No addition could be made - Decided against the revenue.
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2018 (3) TMI 1356
Reopening of assessment - failure on the part of the assessee to withhold to furnish the material particulars - reason to believe- Held that:- If the primary facts are placed before the Assessing Officer, the Assessing Officer is in a position to take decision thereupon, it cannot amount to failure on the part of the assessee to withhold to furnish the material particulars. AO in the impugned order has referred to various decisions, however, none of the decisions lay down that even though the primary facts were placed before the AO at the time of scrutiny, on account of non-furnishing of the Form at the time of the original assessment, the assessment can be reopened, neither any such decision is brought to our notice.
Thus Petitioner had placed on record the necessary information for the purpose of assessing income as regard the transfer of shares. What is sought to be done by the Assessing Officer now is a reopening of assessment after four years, on a mere change of opinion. The non-furnishing of the Form is only an excuse given by the Assessing Officer to attempt to exercise an nonexistent power. - Decided in favour of assessee
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2018 (3) TMI 1339
Addition of income account of interest on income tax refund - Additions on account of interest no more payable on commencing capital - cessation of liability - reversal of interest on the direction of C&AG - Held that:- there is no denying the fact that whenever the department charged these interest u/s 234A, 234B, 234C and 234D, same were getting reflected in the P&L A/c of the assessee but being added back in the computation of income. Thus the assessee never claimed the deduction of the same under the Income Tax Act. Since the amount received back was the amount paid by the assessee and deduction of which was never been claimed in the Income Tax Act by the assessee in the previous years the same cannot be considered as income in the current year. - AO and CIT(A) have fell into error while making this addition. This amount is refund of the interest paid by the assessee to the department and hence cannot be considered as income and accordingly AO is directed to delete the same.
Cessation of liability - reversal of interest on the direction of C&AG - Held that:- the amount of ₹ 106.18 crore has been taxed twice i.e. in Assessment year under consideration 2010-11 and assessment year 2011-12. We are of the view that this is not permissible. An income cannot be taxed twice that too on substantive basis. The AO being an adjudicating officer has a duty to assess correct income. In these circumstances we have two options, either to confirm the addition in this year and direct the AO to delete the addition in the subsequent A.Y. 2011-12. However, considering the fact that the reversal of interest has happened consequent to the C&AG observation on 7th October, 2010 which falls in the F.Y. 2010-11 i.e. A.Y. 2011-12, we are of the view that this amount should not be taxed in this assessment year and be included in the income of the assessment year 2011-12. Accordingly, we direct the AO to delete the addition in this assessment year i.e. A.Y. 2010-11. - Decided in favor of assessee.
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2018 (3) TMI 1338
TDS u/s 194I - payment by way of "Lease Premium" to MMRDA - assessee in default - Held that:- In the assessee’s own case for the Assessment Year 2008-09 we are not in agreement with the findings of the Assessing Officer and we decline to hold that the Commissioner of Income Tax(A) has erred in not treating the assessee as assessee in default within the meaning of section 201(1)of the Income Tax Act for non-deduction of TDS on payment of lease premium to MMRDA.
For invoking the provisions of section 201(1)of the Act, this is a precondition that the person should be required to deduct any sum in accordance with the provisions of this Act and he does not deduct, or does not pay or after deduction fails to pay the whole or in part of the tax as required under the provisions of the Act, then only such person shall be deemed to be an assessee in default in respect of payment of such tax. In the case in hand, the assessee was not liable to deduct any tax on payment of lease premium to MMRDA because it was capital expenditure to acquire land on lease with substantial right to construct a commercial building complex. - Decided in favour of assessee
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2018 (3) TMI 1355
Reassessment u/s 147 - validity of reasons for initiation of the proceedings - FTS u/s 9(1)(vii) - non-filing of return of payment of taxes - AO observed that the payments made by ML to the AEs for on- site services and marketing services (a.k.a. “Selling Commission’) were covered by the definition of Fees for technical services (“FTS”) as defined in Explanation 2 to Section 9(1)(vii) of the Income Tax Act, 1961 (“Act”).
Held that:- the reasons for initiation of the proceedings as assigned by the Respondent-Assessing Authority and quoted above, prima facie , indicates that the Assessing Authority had sufficient and reasonable reasons to initiate such proceedings, as certain payments were made to the Associate Enterprises (A.Es.) of the parent Company of U.S.A. without making suitable Tax Deduction at Source (TDS) rendering such expenses as non-admissible in the hands of the assessee. The said reasons cannot be said to be irrelevant or non-germane for the formation o f a reasonable belief about escapement of income as required under Section 147/148 of the Act or initiation of such proceedings for bringing to the tax the income which has escaped assessment.
Therefore, this Court cannot pre-judge as to how the objections of the assessee in this regard will be met by the Respondent-Assessing Authority. Since, admittedly, the proceedings are pending as of now, no pronouncement with regard to merit of such objections can be made at this stage. - petition dismissed as premature - Decided against the assessee.
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Customs
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2018 (3) TMI 1337
Vires of section 129E of the Customs Act as section denies fundamental rights guaranteed by Articles 14 and 21 - Held that: - The Division Bench of this Court in Haresh Nagindas Vora v Union of India [2017 (6) TMI 964 - BOMBAY HIGH COURT] has held that mandatory requirement under Section 129-E cannot be considered as a revenue nor it is a tax and Section is enacted in public interest - the challenge to the Constitutional validity of Section 129-E, cannot succeed.
Alternative remedy - Held that: - The self imposed rule of not entertaining a writ petition, when an efficacious remedy is available, is well settled. Only in exceptional circumstances, the Court may deviate from this self imposed rule. Since the Constitutional validity of the Act has been upheld and the challenge to the mandatory pre-deposit has been negatived, the remedy of appeal cannot be held to be not efficacious.
There is a power conferred under Section 129-A(5) of the Act on the Appellate Tribunal to condone the delay in filing the appeal. This power being a discretionary power, it is not intended to prejudge the same. It is open to the Petitioner to contend that the Petitioner is entitled for condonation of delay on the ground of pendency of this Writ Petition, which the Tribunal will consider on its own merits.
Petition disposed off.
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Corporate Laws
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2018 (3) TMI 1336
Disqualifying the petitioner as Director in the company - default in submitting returns with regard to the affairs of the said company which was statutorily required to be filed with the Registrar of Companies for a continuous period of three financial years - Held that:- The writ petitioner has stated that on account of differences and disputes with the other Directors, the company had run into difficulty and statutory compliances in the nature of filing of returns with the Registrar of Companies could not be effected. The proceedings between the petitioner and other directors in this regard are stated to be pending before the Original Side as well as criminal court of this court.
We are today informed by Ms. Maninder Acharya, ld. ASG, on instructions from Mr. Akshay Makhija, ld. CGSC; Mr. Sanjay Shorey, Director (Legal) for the Union of India and Mr. Rakesh Tiwari, Registrar of Companies that the respondents have verified the above position and accept the stated position regarding the pendency of matters before the Original Side and criminal court of this court.
It is also an admitted position that all these companies are active companies even on date. In view of this position, the respondents shall forthwith take steps for removal of the petitioner’s name from the list of disqualified directors.
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Service Tax
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2018 (3) TMI 1330
Refund of unutilized CENVAT credit - export of services - place of provision of service - Management or Business Consultant Service (MBCS) - rejection on the ground that the appellant was engaged in rendering the service under the category of “Real Estate Advisory Service” (REAS)
Whether, the activities of the appellant would come within the purview of MBCS and BAS, as claimed by the appellant; or under the category of REAS, as held by the lower authorities and that whether, the appellant should be entitled to the refund benefit under Rules 5 of the Cenvat Rules, 2004 read with Export of Services Rules, 2005?
Held that: - the appellant’s task was mainly confined to providing of advisory services in respect of investments identified by overseas client and advise it with respect of investment opportunities in the companies, who are engaged in developing the real estate projects - The definition of MBCS includes the service of any person, who renders any advice, consultancy or technical assistance in relation to financial management.
The appellant rendered the services to the overseas client as advisor of the investment opportunities in Indian company, which is clearly covered within the definition of MBCS - Tribunal in the case of AMP Capital Advisors India Pvt. Ltd. Vs. CST, Mumbai [2015 (6) TMI 122 - CESTAT MUMBAI], observed that the appellant providing advisory services to AMP capital, Australia and the service recipient using said advice received for further advising for their customers in India, would qualify for export of service.
The activities rendered by the appellant would come within the purview of “MBCS” and the appellant is entitled for the refund benefit - appeal allowed - decided in favor of appellant.
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2018 (3) TMI 1331
Maintainability of petition - Exemption of payment of service tax - N/N. 25/2012-ST , dated 20.06.2012 - petitioner carried out work of water supply to the respondent-BESCOM, a Public Sector Undertaking - Held that: - The impugned order, Annexure- A dated 17.03.2016 passed by the Assistant Commissioner cannot be said to be without jurisdiction and there is no patent lack of jurisdiction or such breach of principles of natural justice, which may entitle the petitioner to directly invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India - petitioner has equally adequate and efficacious alternative remedy before the Commissioner of Central Excise (Appeals) under Sect ion 85 of the FA, 1994 - petition dismissed being not maintainable.
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Central Excise
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2018 (3) TMI 1328
Clandestine removal - principles of natural justice - copies of the “un-relied upon documents” were not given - Held that: - It appears that the Kacchi Parchies show the purchase of raw material both by the assessee-Appellants as well as by some other unit. The details of purchase of the raw material were available on Kacchi Parchies. Further mention of the word „SCRAP‟ on the Kacchi Parchies shows that it was for the manufacture of the aluminium wire as well.
The allegation of the assessee-Appellants that non-relied upon documents were not supplied, it appears that initially they have requested for the same, but, later, during the course of personal hearing dated 18.07.2014, they have not pressed for the same - there was no justification for grant of the cross-examination, as rightly observed by the lower authorities. Further, no request for cross-examination of any person was made during the personal hearing held a number of times. Even on the concluding date i.e 18.07.2014, the assessee-Appellants did not press for cross-examination of any person. This is merely an afterthought to buy time for delaying the proceedings.
The assessee-Appellants have used the Kacchi Parchies for purchase of the unaccounted raw material and sale of the finished goods. When it is so, then there are no reason to interfere with the impugned order and the same is hereby upheld - appeal dismissed - decided against assessee-appellant.
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2018 (3) TMI 1329
Refund claim - finalization of provisional assessment - relevant date - doctrine of unjust enrichment - Whether the 2nd respondent was right in holding that the doctrine of unjust enrichment was not applicable to any claim for refund of duty consequential to finalization of provisional assessment for any period prior to 25.06.99, as the refund claim in the subject case was consequent to finalization of Provisional Assessment on 30.10.2000 for the period 1998-99 especially considering that the amendment to Section 11B of Central Excise Act, 1944 was brought with effect from 01.08.98 whereby refund consequent to finalization after 01.08.98 would be covered by the provisions of Section 11B ibid?
Held that: - a similar issue came up for consideration, a Hon'ble Division Bench of this Court in Commissioner of Central Excise, Chennai-I, Vs. Dollar Company Private Limited, [2015 (2) TMI 346 - MADRAS HIGH COURT], after analysing Section 11 B of the Central Excise Act, which relates to claim for refund of duty, other provisions and following the decision of the Hon'ble Supreme Court in Commissioner of Central Excise, Chennai Vs. TVS Suzuki Limited, [2003 (8) TMI 42 - SUPREME COURT OF INDIA], held that the relevant date will be the date of adjustment of the duty after final assessment made thereof. In this case, consequent to the order of the Commissioner (Appeals), the refund claim was made. Therefore, it is clear that the date is well within the time stipulated under Section 11B and there can be no dispute raised by the Department on this aspect.
Appeal dismissed - decided against Revenue.
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CST, VAT & Sales Tax
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2018 (3) TMI 1327
Recovery of arrears - Auction purchaser - Section 24 of the TNGST Act, 1959 - Held that: - the issue as to whether the right of the secured creditor over the subject property mortgaged will prevail over crown debt is no longer res integra - reliance placed in the case of Union of India and others vs. SICOM Limited and another [2008 (12) TMI 53 - SUPREME COURT], where the issue before the Hon'ble Supreme Court was whether the State Financial Corporation from whom money was borrowed, by executing a mortgage to the corporation, would have priority over Central Government, which intended to realise the central excise dues, by attachment and seizure of the mortgaged properties. It was held in the case that secured debts have priority over the excise dues.
The petitioner is bonafide purchaser and that he should not be imposed with any liability to pay arrears of tax, payable by M/s. Moolchand Exports Limited, (In Liquidation) - petition allowed - decided in favor of petitioner.
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2018 (3) TMI 1326
Rate of tax - samosa - whether the rate of tax on Samosa should be 8% or 5%? - Held that: - the legislative intention is clearly to tax cooked food on the one hand and sweetmeats and namkeen as different items. Cooked food is taxed at a higher rate under the statute in question, as compared to sweetmeats and namkeen. There cannot be any generalization and the Court would necessarily have to find assistance of the statute, in question - samosa is certainly cooked food and since it satisfies requirement of cooked food otherwise in a broad sense and since the other alternative is to tax it under namkeen which does not appeal to us, in the absence of any material or finding in the orders, we are inclined to not overturn the order of the authorities, as confirmed by the Tribunal which is undoubtedly the fact finding authority as samosas are to be taxed at the rate of 8% for the first six months and, for the next six months, at the rate of 4%, on the basis that cooked food under the VAT Act attracted 4% - decided in favor of Revenue.
When this Court is called upon to decide the matter in terms of the substantial question of law, it has to decide the question as to what the law is and not on the basis of the treatment accorded to another dealer. There can be no scope for such consideration in revision which can be maintained only on the basis of substantial question of law.
Revision dismissed.
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2018 (3) TMI 1325
Composition Scheme - It is the case of the assesee that the SMR authority having determined the taxable income under the composition scheme ought not to have added tax under Section 3(2) of the Act as purchases on the goods supplied by the contractee to the contractor - Held that: - Tribunal proceeded only on the ground that the determination of tax based on the composition scheme is justifiable. It is hardly required to be stated that when particularly the assessee/appellant raises a ground and submits arguments on such point, it is obligatory for the Tribunal to address the said arguments and give a finding in accordance with law - matter remanded to the Tribunal for fresh consideration.
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2018 (3) TMI 1324
Principles of Natural Justice - the Assessing Officer failed to note the objection filed by the petitioner while passing the impugned assessment order - Held that: - it is deemed that all the records were available with the respondents when he passed the impugned assessment order. Therefore, fairness in procedure would require that the dealers' objection though given in two sets should be considered, otherwise, the assessment proceedings itself would become an empty formality - matters are remanded back to the first respondent for fresh consideration - petition allowed by way of remand.
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2018 (3) TMI 1323
Levy of sales tax or service tax - brand franchisee fees - whether sales tax is leviable on the assessee on the amount received by the assessee as "brand franchisee fees" from CBUs (Contract Bottling Units) in case of manufacture of beer? - Held that: - the Division Bench of this court in the case of State of Karnataka v. United Breweries Ltd. [2015 (11) TMI 754 - KARNATAKA HIGH COURT] for the reasons recorded in the order has found that no sales tax would be leviable on the assesseeon the amount received by the assessee as "brand franchisee fees" from the CBU in case of manufacture of beer - appeal dismissed - decided against Revenue.
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2018 (3) TMI 1322
Compensation for death of the deceased - award amount - Held that: - it is apparently clear that the jeep driver was set at fault and the Tribunal has rightly come to the conclusion and fixed the liability on the driver of the jeep and this Court finds that there is no infirmity in the said conclusion.
This Court finds that it is reasonable and just compensation and no interference is required in this appeal and hence, this appeal is liable to be dismissed.
Appeal dismissed - decided against Revenue.
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Indian Laws
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2018 (3) TMI 1335
Regular bail - Section 439 Cr.P.C. - Section 120B read with Section 420 IPC; Section 8 and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 - Held that: - This Court is conscious that at the time of consideration of bail, a detailed examination of the evidence and elaborate documentation of the merits of the case, which may prejudice the prosecution or accused is to be avoided.
No plausible explanation has been given by the petitioner as to how and why, for consultancy services purportedly given by ‘CMS’, invoice in the sum of ₹ 10 lacs as professional fee was raised on behalf of ‘ASC’. This incriminating circumstance, however, alone is not sufficient at this stage to deny bail to the petitioner as this payment was duly accounted for in the records and was received by a cheque. It is a matter of trial as to who was the ultimate beneficiary of this amount. No credible evidence has been produced on record regarding the exact relationship of the petitioner with ‘ASC’.
Allegations against the petitioner primarily are for commission of offence punishable under Section 8 of Prevention of Corruption Act. The punishment for commission of the offence punishable under Section 8 is imprisonment for a term which may extend to five years with fine. Settled position is that generally bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it assigned by law is of extreme severity - There appears no possibility of the petitioner to flee from justice. His parents are senior advocates; he has family to take care of; he has roots in the society and is not a previous convict.
The petitioner is entitled for bail - the petitioner is admitted to bail on his furnishing personal bond in the sum of ₹ 10 lacs with one surety in the like amount to the satisfaction of the Trial Court - petition allowed in part.
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2018 (3) TMI 1334
Principles of natural justice - cross-examination - production of documents - The Trial Court was of the view that the petitioner had been given sufficient time to cross-examine the witnesses, however, the petitioner was delaying the proceedings. The Trial Court was of the view that the petitioner was trying to deliberately create difficulties for the Court to prevent conclusion of evidence. The Court was of the view that the witness could only be put relevant questions and could not be compelled to produce any document.
Held that: - Perusal of the orders of the Trial Court as well as the Revisional Court makes it clear that the petitioner, who is appearing in person, has been repeating questions, which the Court has found to be irrelevant. The Court seems to be kept engaged for substantial periods of time in dealing with the questions which the Court is of the view are irrelevant - the order of the Revisional Court, to some extent, calls for interference.
Imposition of cost - Held that: - since this is a discretionary power exercised by the Revisional Court, it should not be interfered - imposition of cost upheld.
Production of documents - Held that: - the Revisional Court has already given liberty to the petitioner to place on record the documents which may be relevant for the purposes of trial. In case, the petitioner requires to confront any witness with any document, which are not in his power or possession and which are required to be summoned from a third party, it would be open to the petitioner to apply to the Trial Court for the said purpose.
Petition disposed off.
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2018 (3) TMI 1333
Acquittal of the respondent no. 1 - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - recovery of hand loan given in cash - Held that: - It is now well settled that a statutory presumption, arises in favour of the complainant, where the signature on the cheque is not disputed. The said presumption is a rebuttable presumption. The accused can rebut the presumption on preponderance of probability, which can be done by virtue of cross examination of the complainant's witness or at the time of the statement under Section 313 of Cr.P.C. or by leading defence evidence - Here is a case where the appellant has failed to give any particulars as to the date and time, when he advanced the amount of ₹ 4,50,000/-, which he had paid in cash. There is no writing obtained from the respondent no. 1 and it is also not shown that the said amount was reflected in the Income Tax Returns of the firm, in as much as, the complaint was filed in the capacity of the proprietor of the firm.
Coming to the scope, ambit and powers of this Court while considering an appeal against acquittal, it is now well settled that in an appeal of the present nature, this Court cannot re-appreciate the material unless and until the view taken by the subordinate Court is perverse or is an implausible view. It is well settled that where two views are equally possible, this Court would not substitute it's view on the ground that it is more plausible than the one taken by the Court below.
Appeal dismissed.
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2018 (3) TMI 1332
Charitable Institution - exemption from property tax - Section 83(1)(a) of the Tamil Nadu District Municipalities Act, 1920.
Held that: - issue as to how the claim for exemption has to be considered was dealt with by this Court in the case of Sundaram Medical Foundation, vs. The Commissioner Corporation of Chennai & others [2018 (3) TMI 1289 - MADRAS HIGH COURT]. In the said case also, it was a hospital, claimed to be doing charitable activity and the land on which the hospital has been constructed was given by the Government at a concessional rate. It was held in the case that hough as a charitable hospital, the building may be entitled to benefit of exemption, the availability of such exemption, is further qualified by the proviso with regard to building or land from which rent is payable by the person using it. Thus, considering the scope of exemption and with reference to the buildings and other cases, it was held that the building or property cannot at all be let out for rent and that perhaps is the reason why they have not been included in the proviso, excepting cases falling under clause (a),(b) and (c) of the Section 123 of the said Act.
The petitioner's case stand in a better footing on account of the exemption under the provisions of the District Municipalities Act.
Petition allowed.
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