TMI Tax Updates - e-Newsletter
April 23, 2020
Case Laws in this Newsletter:
GST
Income Tax
Customs
Insolvency & Bankruptcy
Service Tax
Central Excise
Indian Laws
Highlights / Catch Notes
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GST:
Classification of goods - rate of GST - Bagasse based Particle Board manufactured with a composition of 75% of bagasse, 25% of wood particles and 5 kgs. of resins - liable to GST at the rate of 18% - AAR
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GST:
Exgibility to tax - rate of GST - Mango Pulp - the classification of item, ‘Mango Pulp’ is not specified in GST Tariff - residuary entry, cover goods which are not specified in Schedule I, II, IV, V or VI of the notification - Rate of GST is 18% - AAR
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GST:
Classification of goods - rate of GST - Technical Varnish - The Tariff Heading 3215 covers all Goods, including printing ink, writing or drawing ink and other inks, whether or not concentrated or solid, fountain pen ink, ball pen ink. As the ‘Varnishes’ are different than “Printing ink” and are specifically covered under Tariff Heading 3208, the same do not fall under Tariff Heading 3215. - AAR
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GST:
Input Tax Credit - ITC of GST paid on goods and services used to construct the “bunds” is admissible, provided that the bunds are used for making zero rated supplies and fulfill the conditions which are necessary for treating the bunds as “plant and machinery”. - AAR
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GST:
Jurisdiction of the officer u/s 67(1) - Validity of order of prohibition - confiscation of goods -In this view of the matter and looking to the order of prohibition so passed in GST INS 03, the said order passed by respondent No. 1, without reference to the order of authorisation in writing, is illegal and without jurisdiction. Therefore, it is hereby set aside - HC
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Income Tax:
Clarification on provisions of the Direct Tax Vivad se Vishwas Act, 2020 - Circular
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Income Tax:
Disallowance of deduction claimed u/s 80JJAA - business of developing computer software - the provisions that existed before 1st day of April, 2016 shall apply to the earlier years, meaning thereby, the provisions, which are applicable to a particular year, should be applied for determining the eligibility of the assessee to claim this deduction.
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Income Tax:
Exemption u/s 11 - registration u/s 12A denied merely on the basis of the Report of the Inspector - CIT(Exemption) was under duty to provide the copy of the report of the Inspector to the assessee and thereafter the assessee should called upon to furnish its report and the assessee may also be called upon by the Ld.CIT(Exemption) to file any other documents to prove the genuineness of the activities of the assessee. - AT
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Income Tax:
Exemption u/s 11 - charitable activity u/s 2(15) - assessee has rendered services by way of conducting coaching/learning classes to the individuals in the field of sports and other related activities - Any fees received from such activities cannot be held to be in the nature of any trade, commerce, business activities - AT
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Income Tax:
Addition u/s 68 - Exemption u/s 11 - if there is a disclosure of this income in the hands of the assessee as corpus fund and applied the same is for charitable purposes for which the assessee-trust is created, and also the assessee-trust is having due registration u/s 12A AO cannot invoke the provisions of section 68 so as to sustain the addition
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Income Tax:
Depreciation on office buildings including land - When the assessee bank does not have any segregation value of land and building of the said premises and it has paid composite price, the entire depreciation claim is allowable u/s 32
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Income Tax:
Rate of depreciation - Concrete Pump etc. have been fitted by the assessee as per his own convenience but the same cannot be said to be a part of the commercial vehicle - the claim of the assessee of depreciation @ 40% on Concrete Pump and other related equipment, has rightly been reduced / disallowed by the lower authorities and the same has rightly been allowed @ 15%. - AT
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Customs:
Condonation of delay in filing appeal - Since the main appeal was filed within time, these appeals are only technical appeals and the delay in filing these appeals need to be condoned. - AT
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Customs:
Overvaluation of export goods - consignments of cotton printed and dyed fabrics - in view of the specific fact that the department has not produced any tangible evidence to show overvaluation of the goods, the adjudged demands confirmed on the appellant cannot be sustained.
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Corporate Law:
Holding of annual general meetings by companies whose financial year has ended on 31st December, 2019 - Circular
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State GST:
Clarification on refund related issues. - SGST
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State GST:
Clarification in respect of apportionment of input tax credit (ITC) in cases of business reorganization under section 18 (3) of WBGST Act read with rule 41(1) of WBGST Rules - SGST
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State GST:
Clarification in respect of issues under GST law for companies under Insolvency and Bankruptcy Code, 2016 - SGST
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State GST:
Clarification in respect of appeal in regard to non-constitution of Appellate Tribunal. - SGST
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Indian Laws:
Tender for appointment of Chartered Accountants Firms for assignment of internal audit of retail vending liquor shops - Eligibility criteria - the argument raised by learned counsel for the Petitioner that eligibility criteria, particularly, Clause 2.1 of the tender notification is tailor-made to extend the benefit to existing Chartered Accountants Firms, is also not sustainable and hereby repelled. - HC
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IBC:
Initiation of CIRP - Ex-parte order - The Appellant has admitted that the Court notice was received by its employee on 17th August 2019, but he left the organisation on 03rd October 2019. Since the said employee was in active employment of the Appellant/Corporate Debtor when he received the notice, thus it is clear that the order to proceed the case ex-parte is fully justified
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IBC:
Admissibility of application for initiation of CIRP - time limitation - the account was declared as NPA on 30-4-2013, whereas the present petition under section 7 of the I&B Code was filed on 12-9-2018, which was filed beyond three years. As such the present application is liable to be rejected.
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Service Tax:
Levy of service tax - Business Support Services - facilities and utilities which are provided by the appellants to M/s. ALIHPL as per the said contract are in the nature of infrastructural support services - These services are not included in the scope of BSS - AT
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Service Tax:
Reversal of CENVAT Credit - common input services - trading activity - Credit taken on the basis of invoice issued by ISD / Head office - directing the Thane unit to reverse the proportionate credit attributable to trading activity of other two unit would be incorrect and cannot be sustained in law. - AT
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Central Excise:
Refund of duty paid during investigation - amount paid as pre-deposit or the amount paid during investigation cannot be considered as duty. For refund of such pre-deposit, a mere letter to the department is sufficient. The refund of pre-deposit does not require to take recourse of Section 11B at all.
Articles
Notifications
Customs-
G.S.R. 257(E) - dated
20-3-2020
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Cus
Corrigendum - Notification No. 01/2017-S.C. (PB) dated 09/05/2017
GST - States-
01/2020-State Tax (Rate) - dated
27-2-2020
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Himachal Pradesh SGST
Amendment in Notification No. 1/2017-State Tax (Rate), dated the 30th June, 2017
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07/2020-State Tax - dated
14-2-2020
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Himachal Pradesh SGST
Amendment in Notification No. 44/2019- State Tax, dated the 1st November, 2019
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06/2020-State Tax - dated
14-2-2020
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Himachal Pradesh SGST
Seeks to extend the time limit for furnishing of the annual return specified under section 44 of HPGST Act, 2017
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73/2019-State Tax - dated
5-2-2020
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Himachal Pradesh SGST
Amendment in Notification No. 44/2019-State Tax, dated the 1st November, 2019
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04/2020-State Tax - dated
28-1-2020
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Himachal Pradesh SGST
Amendment in Notification No. 4/2018-State Tax, dated 30th January, 2018
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06/2020–C.T./GST - dated
20-4-2020
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West Bengal SGST
Seeks to extend due date for furnishing FORM GSTR-3B for the month of May, 2020
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466-F.T. - dated
15-4-2020
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West Bengal SGST
Seeks to extend due date of furnishing FORM GST CMP-08 for the quarter ending March, 2020 till 07.07.2020 and filing FORM GSTR-4 for FY 2020-21 till 15.07.2020
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465-F.T. - dated
15-4-2020
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West Bengal SGST
Seeks to provide relief to taxpayers by conditional waiver of late fee for delay in furnishing outward statement in FORM GSTR-1 for tax periods of February, 2020 to April, 2020 / quarter ending 31.03.2020.
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464-F.T. - dated
15-4-2020
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West Bengal SGST
Seeks to provide relief to taxpayers by conditional waiver of late fee for delay in furnishing returns in FORM GSTR-3B for tax periods of February, 2020 to April, 2020.
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463-F.T. - dated
15-4-2020
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West Bengal SGST
Seeks to provide relief to taxpayers by conditional lowering of interest rate for tax periods of February, 2020 to April, 2020.
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462-F.T. - dated
15-4-2020
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West Bengal SGST
West Bengal Goods and Services Tax (Fourth Amendment) Rules, 2020.
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447-FT - dated
3-4-2020
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West Bengal SGST
Seeks to prescribe the due date for furnishing FORM GSTR-1 for the quarters
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05/2020–C.T./GST - dated
3-4-2020
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West Bengal SGST
Seeks to prescribe return in FORM GSTR-3B of CGST Rules, 2017 along with due dates of furnishing the said form for April, 2020 to September, 2020
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04/2020–C.T./GST - dated
3-4-2020
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West Bengal SGST
Seeks to prescribe the due date for furnishing FORM GSTR-1 by such class of registered persons having aggregate turnover of more than 1.5 crore rupees in the preceding financial year or the current financial year, for each of the months from April,2020 to September, 2020
Circulars / Instructions / Orders
News
Case Laws:
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GST
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2020 (4) TMI 635
Classification of goods - rate of GST - Bagasse based Particle Board manufactured with a composition of 75% of bagasse, 25% of wood particles and 5 kgs. of resins - whether fall under serial No.92 of Schedule II [GST rate 12%) or under Sr. No. 137A of Schedule III (GST rate 18%) of the Notification No. 01/2017-Integrated Tax [Rate] dated 28.06.2017? - Sr. No. 92 of Schedule-II of Notification No.01/2017- IGST (Rate] dtd. 28.06.2017 - HELD THAT:- The Bagasse board has specific entry at Sr. No. 92 in Schedule II to the Notification No.01/2017- Central Tax (Rate), dated 28.06.2017. Accordingly, the said entry covers Bagasse boards falling under Chapter 44 or any other Chapter and attracts concessional GST rate of 12%. The entry covers Bagasse Board manufactured from bagasse only. Apart from the Particle Boards mentioned in entry at Sr. No. 92 in Schedule II to the Notification No. 01/2017- Central Tax (Rate), dated 28.06.2017, the other Particle Boards cover in entry at Sr. No. 137A in Schedule III to the Notification No. 01/2017- Central Tax (Rate), dated 28.06.2017. In the present case, Bagasse based Particle Board to be manufactured by the applicant is a composition of bagasse wood particles and not only of bagasse, therefore, same would be covered under entry at Sr. No. 137A in Schedule III to the Notification No. 01/2017- Central Tax (Rate), dated 28.06.2017 and attracts GST rate of 18%.
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2020 (4) TMI 634
Exgibility to tax - rate of GST - Mango Pulp - whether classified under Chapter heading no. 08045040 of the Custom Tariff Act, 1975 or otherwise? - HELD THAT:- The entry No. 51 of the Notification No. 02/2017-Central Tax (Rate), dated 28.06.2017 confined to only Mangoes in fresh form. Whereas, Mango Pulp is obtained from mango fresh after carrying out process of cutting, de-stoning, refining and packing. Thus, Mangoes in fresh and Mango Pulp are not same one, as both are separately classified under different Chapter sub-headings of the Customs Tariff Act, 1985 - Mango Pulp is specifically classified under Chapter sub-heading no. 0804 50 40 of Customs Tariff Act, 1975. However, the classification of item, Mango Pulp is not specified in GST Tariff. The Entry No.453 of Schedule-Ill of Notification No.01/2017Central Tax (Rate) is a residuary entry, cover goods which are not specified in Schedule I, II, IV, V or VI of the notification. This entry covers all Taxable Goods which are not specified in this notification. Mango Pulp would be squarely covered under the entry No.453 of Schedule III of the Notification No.01/2017- Central GST (Rate) dated 28.06.2017, which attracts rate of GST @18%.
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2020 (4) TMI 633
Levy of GST - Classification of Supply - rate of GST - activity of purchase of land and selling the said land by converting in to integrated residential sub plots of varying sizes under name of Bliss Homes with basic facilities - HELD THAT:- The activity of purchase of land and selling the said land by converting in to integrated residential sub plots of varying sizes under the name of Bliss Homes with the basic facility is liable to GST. The activities of applicant will fall under the clause (b) of paragraph 5 of Schedule II of Gujarat Goods and Services Tax Act and Central Goods and Services Tax Act. Hence the activities of the applicant attract 9% CGST and 9% SGST as per serial no 3 of Notification No. 11/2017 Central Tax (Rate) dated 2806-2017.
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2020 (4) TMI 632
Classification of goods - rate of GST - Technical Varnish and Medium used in printing industry - HELD THAT:- Medium / Technical varnish is independent product and is being sold to the printing industries. In the production of printing ink, varnish can refer to either a combination of oils, resins, waxes, solvents and other materials used as an ink vehicle. The use of varnish tends to increase the gloss of a printed ink. Technical Varnish / Medium are liquid used in printing ink. As such, Technical Varnish / Medium and Printing ink are having separate identity and, hence, both are distinct products. The Explanatory Notes for Tariff Heading 3208 includes Varnishes but excludes Printing inks which though having a similar qualitative composition to paint, are not suitable for painting applications (heading 32.15). The Tariff Heading 3215 covers all Goods, including printing ink, writing or drawing ink and other inks, whether or not concentrated or solid, fountain pen ink, ball pen ink. As the Varnishes are different than Printing ink and are specifically covered under Tariff Heading 3208, the same do not fall under Tariff Heading 3215. Thus, HSN code of the product Technical Varnish / Medium is 3208.
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2020 (4) TMI 631
Input Tax Credit - manufacture and supply of salt and bromine chemicals - credit on bunds which are constructed and used in the manufacture of salt and bromine chemicals - zero rated supply or not - HELD THAT:- Section 16(2) of IGST Act states that subject to the provisions of sub-section (5) of section 17 of the Central Goods and Services Tax Act, 2017, credit of input tax may be availed for making zero-rated supplies, notwithstanding that such supply may be an exempt supply. - Whereas as per section 2(47) of the CGST Act, exempt supply includes nil rated supply and non-taxable supply. Thus, as per section 16(2) of the IGST Act, Input tax credit is available on inputs and input services to make Zero rated supplies (such supply may be an exempt supply), subject to the provisions of sub-section (5) of section 17 of CGST Act. As per Clauses (c) and (d) of Section 17(5) of the GST Acts, input tax credit is not admissible in respect of works contract services or any goods and services for construction of immovable property (other than plant and machinery). Thus, a specific exception is made with regard to plant and machinery. Input tax credit of GST paid on goods and services used to construct the bunds is admissible to M/s. Satyesh Brinechem Private Limited, provided that the bunds are used for making zero rated supplies and fulfill the conditions which are necessary for treating the bunds as plant and machinery .
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2020 (4) TMI 629
Jurisdiction - Validity of order of prohibition - confiscation of goods - authority competent to pass the prohibition order - Section 67(2) of CGST Act - It is urged that the authority competent to pass the order should not be below the rank of Joint Commissioner while the order impugned has been passed by the Deputy Assistant Commissioner, who is not competent to pass the order of Prohibition. HELD THAT:- As per the provisions of Section 67(1) of the Act, power of inspection is specified to an officer not below the rank of joint commissioner. The said officer for the purpose of search as specified in Section 67(1) (a) and (b) may authorize in writing any other officer of Central Tax for inspection of any places of business of the taxable person or the persons engaged in the business of transporting goods or the owner or the operator of warehouse or godown, as the case may be. Similar is the provision of Section 67(2) of the Act. In this view of the matter and looking to the order of prohibition so passed in GST INS 03, the said order passed by respondent No. 1, without reference to the order of authorisation in writing, is illegal and without jurisdiction. Therefore, it is hereby set aside - Petition allowed.
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Income Tax
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2020 (4) TMI 628
Kar Vivad Samadhan Scheme - Tax arrears - petitioners have not paid the amounts demanded within the specified time limit - HELD THAT:- Under similar circumstances, this Court has passed an order in the case of Sri Balaji Finance v. Income-tax Officer [ 2010 (9) TMI 498 - MADRAS HIGH COURT] in which it is stated that payment of amount by assessee beyond 30 days but within a reasonable time as per amendment order would satisfy the requirements of Kar Vivad Samadhan Scheme, 1998. Writ petition is allowed and the impugned order is set aside. The first respondent is directed to issue necessary certificate under Section 90(2) of the Finance Act, 1998 to the petitioner, within a period of two months from the date of receipt of a copy of this order.
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2020 (4) TMI 627
Addition u/s 43D - additions on account of accrued interest on loans which are classified as Non-performing Assets - Scope of amendment brought to Section 43D - I.T.A.T. confirming the decision of CIT (A) deleting the additions - HELD THAT:- Legislature in his wisdom has found it fit to hold that accrued interest on bad debts and doubtful debts and Non-performing Assets which are not received by the institution cannot be taxed. In that view of the matter, we are in respectful agreement with the judgment of the earlier Coordinate Bench in the case of CIT V/s Bijapur District Central, Co-Operative Bank Ltd., Vijayapura [ 2018 (5) TMI 437 - KARNATAKA HIGH COURT] .
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2020 (4) TMI 626
Rectification of mistake u/s 254 - Deduction u/s. 10A/10AA of income derived by way of royalty rejected by Tribunal - HELD THAT:- Assessee has brought to our notice a decision of SMT. ALPANA BHARTIA [ 2019 (4) TMI 1035 - KARNATAKA HIGH COURT] which the High Court took the view that there cannot be a miscellaneous petition filed u/s. 254(2) of the Act against an order passed in a Miscellaneous Petition u/s. 254(2) of the Act. If the order under sub-section (2) of Section 254 is passed, the said order would not be available for rectification of mistake again under Section 254 (2) of the Act. The order passed under Section 254(2) cannot be rectified nor amended by invoking sub-section (2) of Section 254 once again. Repetitive applications under Section 254 (2) of the Act are not permissible. In the case on hand also, the Tribunal in exercise of its power under sub-section (2) of Section 254 has rectified the mistake apparent on the record and deleted the double addition of income in respect of the assessee. Thereafter, the Revenue again files an application under sub-section (2) of Section 254 seeking rectification of the order passed under sub-section (2) of Section 254 which is not maintainable. The Tribunal has rightly dismissed the Misc. petition filed by the Revenue - Miscellaneous petition by the revenue is dismissed.
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2020 (4) TMI 625
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- As brought to our notice that no expenses were incurred by the assessee for earning the exempt income. AO was of the opinion since the assessee had taken certain loans, he made disallowance under Rule 8D of the Rules - loan expenses were for car loan, business etc and not for purchasing the shares or earning of the exempt income - disallowance at the most has to be restricted at 0.5% of the cost of investment. This ground of assessee is partly allowed to that extent. Profit on tea made out of purchased tea leaf - assessee has been consistently computing the respective income of Tea Estates in the state of West Bengal and Assam separately and computed the income of tea estates together practice/methodology of accounting has been consistently followed by the assessee for decades - HELD THAT:- AO while giving appeal effect of the ld. CIT(A) s order for AY 2009-10 has accepted the computation of assessee (refer pages-57 of the P/B). Since we note that the assessee has been consistently following the computation of income separately for tea estates in West Bengal and Assam and computing the total income of tea estates together as per the doctrine of consistency the same ought to have been followed without disturbing the same. For that proposition we refer to the Hon ble Supreme Court s decision in RadhasoamiSatsang Vs. CIT [ 1991 (11) TMI 2 - SUPREME COURT] . Therefore, we direct the AO to adopt the pattern of computation as accepted by the department/consistently which was followed by the assessee and allow this ground of appeal.
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2020 (4) TMI 624
Disallowance of deduction claimed u/s 80JJAA - business of developing computer software - HELD THAT:- A.O. has incorporated the provisions of section 80JJAA of the Act relating to assessment year 2014-15 and has applied the same to both the years under consideration. It is pertinent to note that sub-section (3) of section 80JJAA as amended by Finance Act 2016 makes it clear that the provisions that existed before 1st day of April, 2016 shall apply to the earlier years, meaning thereby, the provisions, which are applicable to a particular year, should be applied for determining the eligibility of the assessee to claim this deduction. Accordingly, we set aside the order passed by CIT(A) on this issue and restore the same to the file of the A.O. with the direction to apply with the provisions of section 80JJAA of the Act as applicable to the years under consideration. Nature of expenditure - claim of repair expenses incurred on lease hold building - revenue or capital expenditure - HELD THAT:- As rightly pointed out by A.R., in order to invoke the provisions of Explanation 1 to sec. 32(1), a finding has to be given first as to the nature of expenditure incurred by the assessee. If the nature of expenditure is capital in nature, then the provisions of explanation 1 to section 32(1) of the Act shall apply. It is the case of the assessee that most of the expenditure incurred by it on lease hold premises are revenue in nature. Tax authorities have not examined the nature of expenditure incurred by the assessee. As furnished the various details of expenditure incurred by it on lease hold premises. This issue requires fresh examination at the end of the A.O., since the nature of expenditure incurred by the assessee is required to be examined in order to apply the provisions of Explanation 1 to section 32(1) of the Act. We set aside the order passed by the Ld. CIT(A) on this issue and restore the same to the file of the A.O. for examining it afresh. Credit of MAT as per provisions of section 115JAA - Since the claim of the assessee requires examination at the end of the A.O., we restore this issue to the file of the A.O.
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2020 (4) TMI 623
Bogus purchases - assessee company is unable to substantiate its purchase from the claimed suppliers who had been already established hawala dealers from Sales Tax Department and investigation wing of the Income Tax Department - CIT(A) restricted the addition to 25% - HELD THAT:- As decided in the case of Pr.CIT v. M/s. Mohommad Haji Adam Co. [ 2019 (2) TMI 1632 - BOMBAY HIGH COURT ] held that the Tribunal correctly restricted the addition limited to the extent of bringing the Gross Profit rate on purchases at the same rate of other genuine purchases We direct the Assessing Officer to restrict the addition/disallowance only to the extent of bringing the Gross Profit rate on alleged bogus purchases at the same rate of the other genuine purchases declared by the assessee after calling for the details and verification of records. The assessee is directed to furnish the necessary information in this regard.
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2020 (4) TMI 622
Penalty u/s 271(1)(c) - Defective notice - non specification of charge - HELD THAT:- Legal requirement of making a clear cut reference to the applicable limb of clause (c) of section 271(1) of the Act, is not met by the AO while initiating and levying the penalty u/s 271(1)(c) of the Act. Thus, the satisfaction of the Assessing Officer suffers from ambiguity in his mind. We are of the view that such penalty is unsustainable in law legally. It is a settled legal proposition that the Assessing Officer is under obligation to specify the appropriate limb of clause (c) of section 271(1) of the Act at the time of initiation as well as at the time of levy of penalty. - Decided in favour of assessee.
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2020 (4) TMI 621
Exemption u/s 11 - registration u/s 12A denied merely on the basis of the Report of the Inspector - Assessee denied natural justice and has also not provided the opportunity to contradict the report of the Inspector - HELD THAT:- Inspector had conducted detailed enquiry and have also contacted various students who are exempted from paying the fees by the assessee trust. Neither the copy of the report was provided to the assessee nor the comments of the assessee were called for on the report of the Inspector. CIT(Exemption) without confronting the report of the Inspector have wrongly held that the assessee was into commercial activities. CIT(Exemption) was under duty to provide the copy of the report of the Inspector to the assessee and thereafter the assessee should called upon to furnish its report and the assessee may also be called upon by the Ld.CIT(Exemption) to file any other documents to prove the genuineness of the activities of the assessee. As the Ld. CIT(Exemption) has not followed the principles of natural justice and has also not provided the opportunity to contradict the report of the Inspector. Matter is required to be sent back to the file of Ld. CIT(Exemption) for fresh adjudication of the matter in accordance with law - Appeal of the assessee is allowed for statistical purposes.
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2020 (4) TMI 620
Bogus purchases - Hawala purchases - CIT(A) restricting the addition at 12.5% as against 18% made by the AO - HELD THAT: In a case where purchases are considered to be purchases from suspicious/hawala dealers, various High Courts and Tribunals had considered and identical issue in light of investigation carried out by the Sales Tax Department and held that in case of purchases claims to have made from alleged hawala dealers, only profit element embedded in those purchases needs to be taxed, but not total purchases from those parties. Considering facts and circumstances of this case and consistent with view taken by the Co-ordinate Bench in number of cases, we are of the considered opinion that the Ld. CIT(A) has taken fair view and estimated 12.5% gross profit on alleged bogus purchases to settle dispute between the parties.
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2020 (4) TMI 619
TP Adjustment - comparable selection - HELD THAT:- M/S.Bodhtree Consulting Ltd's profit margin fluctuates significantly on a year-on-year basis, with the result that it cannot be considered as comparable to the Assessee. Apart from the above Bodhtree is also engaged in the provision of software solutions developed in-house, like MIDAS, ShareTree, TeleTree, SecureTree, AppsScale. Assessee is only a captive software development service provider that does not design/develop/sell software products and does not own IPs - we direct exclusion of this company from the list of comparable companies. Computation of deduction u/s 10A - Assessee also made an alternate prayer that expenses that are reduced from the export turnover should also be reduced from the total turnover - HELD THAT:- Taking into consideration the decision rendered by the Hon ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd [ 2011 (8) TMI 782 - KARNATAKA HIGH COURT] we are of the view that there is no merit in ground raised by the Revenue. It would be just and appropriate to direct the Assessing Officer to exclude the charges both from export turnover and total turnover, as has been prayed for by the assessee in the alternative. In view of the acceptance of the alternative prayer, we are of the view that no adjudication is required on the ground whether the aforesaid sums are required to be excluded from the export turnover. Moreover, the order of the Hon ble Karnataka High Court has been upheld in HCL TECHNOLOGIES LTD. [ 2018 (5) TMI 357 - SUPREME COURT]
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2020 (4) TMI 618
Capital gain computation - reference to DVO - methods of valuation of land addition by allowing lesser deduction on account of cost / fair market value of land in rejecting fair market value as on 01.04.1981 claimed by the assessee as per Registered Valuer - HELD THAT:- Assessee had provided the reasons for determining ₹ 225/- per sq. ft. as the fair market value of the property by producing the relevant material, including valuation report of a registered valuer, which all have been ignored while arriving at the price of ₹ 84/- per sq. ft. AO assessed the value of the property as on 1.4.1981 on the basis of sale deeds of some nearby properties registered for such price in the year 1981 and thus, arrived at that figure. Same cannot be the proper mode of arriving at the 'fair market value' of the property in question as on 1.4.1981, for determining 'Capital gains' under the Act. AO is directed to apply rate of ₹ 380 per sq. meter for calculation if long-term capital gain in the hands of the assessee. Unexplained investment in property - HELD THAT:- Even if the source is not proved, then no addition of this amount can be made for the assessment year under consideration. Further, the assessee has explained that payment were made by cheque out of sale consideration received against agreement to sale. The payment received from K B Patel has been duly reflected in confirmation account appearing at Paper Book Page No. 7. This facts shows that funds were received as part of advance from Shri K B Patel for sale of said property. These funds were utilized for purchase of ne property. Later on said party has changed his mind and agreement to sale was cancelled. Since, the assessee has purchased another land out of part sale consideration received on sale of impugned land, he returned amount to K B Patel only when he sold impugned land to another person and received payments for the same. AO has wrongly made addition hence, same is therefore, deleted. Claim of deduction u/s 54B - HELD THAT:- Investment is not made out of sale proceeds of impugned land under consideration. Hence, same is rightly denied by the AO. Accordingly, Ground of appeal is dismissed.
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2020 (4) TMI 617
Unexplained expenditure - premium paid on life insurance policy - Addition u/s 69C - HELD THAT:- Assessee has duly filed three LIC Premium receipt of payment which are appearing at Paper Book Page No. 12 to 14 and same is also shown paid in cash and reflected in cash book placed at Paper Book Page No. 15. The disallowance so made is uncalled for, hence, same is directed to be deleted. - Decided in favour of assessee. Unexplained jewellery - Addition u/s 69A - HELD THAT:- Total gold jewellery with diamond studded therein of 321 grams were found as per inventory made during search belonging to the assessee. Nothing was seized during search. As per CBDT Instruction No. 1916 dated 11.05.1994, jewellery of 500 grams in the case of married lady member need not be seized. In the case of CIT v. Ratanlal Vyapari [ 2010 (7) TMI 769 - GUJARAT HIGH COURT] observed that CBDT Instruction No. 1916 laid down guidelines for seizure of jewellery in the course of search takes into account the quantity of jewellery which should be generally be held by the family members of an assessee, and, therefore, unless anything contrary is shown , it can be safely presumed that the source to the extent of the jewellery stated in the Circular stands explained. In the case of the assessee only 321 grams of jewellery belonging to the assessee was found, which is less than 500 grams and same is inclusive diamond studded therein - the assessee has filed bills for purchase of gold of ₹ 2 lakhs and shown diamond jewellery in the balance sheet for the relevant assessment year. CIT (A) was not justified in confirming the addition on account of diamond jewellery. - Decided in favour of assessee.
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2020 (4) TMI 616
Penalty u/s 271(1)(c) - Defective notice - non considering the proper limb of S.271(1)(c) as to whether concealment or furnishing inaccurate particulars of income - HELD THAT:- This is a case where the Assessing Officer failed to record proper satisfaction while initiating and levying the penalty u/s 271(1)(c) of the Act. Extracts reveal that the Assessing Officer suffers from ambiguity in his mind while recording the satisfaction at the time of initiation of penalty proceedings u/s 271(1)(c) of the Act. Thus the legal requirement of making a clear cut reference to the applicable limb of clause (c) of section 271(1) of the Act, is not met by the Assessing Officer while initiating and levying the penalty u/s 271(1)(c) of the Act. Thus, the satisfaction of the Assessing Officer suffers from ambiguity in his mind. Such penalty is unsustainable in law legally. It is a settled legal proposition that the Assessing Officer is under obligation to specify the appropriate limb of clause (c) of section 271(1) of the Act at the time of initiation as well as at the time of levy of penalty. - Decided in favour of assessee.
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2020 (4) TMI 615
TP Adjustment - comparable selection - functional dissimilarity - HELD THAT:- Ladderup Corporate Advisory Pvt. Ltd. - As decided in SUN-ARES INDIA REAL ESTATE PRIVATE LTD. [ 2018 (2) TMI 1950 - ITAT MUMBAI] exclusion of Ladderup' as is not functionally comparable with the entity engaged in providing non-binding Investment Advisory Services as like Assessee. Motilal Oswal Investment Advisors Pvt.Ltd. is engaged in Merchant Banking Advisory activities is functionally different from the assessee, whose activities are purely non-binding investment advisory services. We do not find any merit in the appeal by Revenue. The directions, of the DRP in excluding Motilal from the list of comparables are upheld and the appeal of the Revenue is dismissed.
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2020 (4) TMI 614
Exemption u/s 11 - charitable activity u/s 2(15) - assessee has rendered services by way of conducting coaching/learning classes to the individuals in the field of sports and other related activities and charging fees thereupon which is purely in the nature of business/commerce/trade - HELD THAT:- As decided in own case [ 2019 (5) TMI 1773 - ITAT DELHI] the nature of receipts as shown in the income and expenditure account and has also been noted by the Ld. AO is flowing from the activities carried out in pursuance of the objects for which it was granted registration u/s 12AA. Assessee trust has basically has received fees from the students for value education workshop and giving coaching for the sports. Such an activity ostensibly falls within the ambit of category of education and giving coaching in sports is also one of the related activities for the overall development of the youth and the sports activities. Any fees received from such activities cannot be held to be in the nature of any trade, commerce, business activities. In this case, proviso to section 2(15) may not attract in this case, because said proviso is applicable only where a trust is carrying out advancement of any other object of general public utility and here the activities of the assessee trust falls in the realm of activities of educational and sports. Accordingly, we hold that assessee is eligible for benefit u/s 11 and 12 - Decided in favour of assessee.
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2020 (4) TMI 613
Addition u/s 68 - Exemption u/s 11 - voluntary donation received by the assessee-trust towards corpus fund - HELD THAT:- As held in the case of S.RM.M.CT.M.Tiruppani Trust v. CIT [ 1998 (2) TMI 3 - SUPREME COURT] under section 11(1) of the Act, every charitable or religious trust is entitled to deduction of certain income from its total income of the previous year. The income so exempt is the income which is applied by the charitable or religious trust to its charitable or religious purposes in India. This is, of course, subject to accumulation up to a specified maximum which, in the present case, was 25%. To obtain the benefit of the exemption u/s 11 assessee is required to show that the donations were voluntary. In the present case, the assessee had only disclosed its donation, but failed to submit a list of donors. Complete list of donors was not filed or that the donors were not produced, does not necessarily lead to the inference that the assessee was trying to introduce unaccounted money by way of donation receipts. Section 68 have no application to the facts of the case if the assessee furnishes the name and address of the donors to the Assessing Officer. In the present case, the assessee has received ₹ 33.80lakh in three assessment years as stated in the earlier paragraph that out of this, ₹ 11.90 lakh was relating to assessment year 2008- 2009. The Assessing Officer, out of this amount, considered ₹ 8.80 lakh as unaccounted income of the assessee - assessee has not filed the confirmation letters from the two donors. If the assessee is able to file the confirmation letters stating that it was received the amount as donation towards corpus fund of the assessee-trust, then there cannot be any application of section 68 of the Act. Being so, if there is a disclosure of this income in the hands of the assessee as corpus fund and applied the same is for charitable purposes for which the assessee-trust is created, and also the assessee-trust is having due registration u/s 12A AO cannot invoke the provisions of section 68 so as to sustain the addition - remit the entire issue under dispute to the files of the Assessing Officer with a direction to the assessee to prove that it was received the amount as donation towards corpus fund of the assessee-trust. - Decided in favour of assessee for statistical purposes.
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2020 (4) TMI 612
Addition u/s 41(1) - cessation of liability - sundry creditors towards whom the assessee had not repaid - HELD THAT:- In the present case it is not in dispute that the impugned amount was the credit balance in the name of the Ex partner Ms. Shivani Singal who did not withdraw the same at the time of her retirement. This amount was shown in the balance sheet of the assessee as payable to Ms. Shivani which Forming Part of the Balance Sheet as at 31/03/2015 wherein this amount has been shown under current liability as loan from Ex partner, under the same head amount shown as on 31/03/2014 which shows that there was decrease in the amount during the year under consideration. It cannot be said that there was a cessation of liability u/s 41(1) - CIT(A) was fully justified in deleting the addition made by the A.O. by observing that the liability under consideration was not a trading liability rather it was the balance of the capital contributed by the Ex partner. Addition u/s 14A - HELD THAT:- It is the duty of the revenue to establish nexus of the funds that assessee has used the interest bearing funds for the purposes of earning exempt income to make any disallowance u/s 14A with respect to interest expenditure. As the ld AO has not established the nexus about investment of interest bearing funds in exempt income generating apparatus, no disallowance u/s 14A rwr 8D can be made on account of interest expenses. - Decided in favour of assessee. Addition on account of various expenses - assessee did not stated the nature of expenditure alongwith the justification and the details of the various expenses relating to building material ion for genuineness of its claim - HELD THAT:- Assessee furnished the details of the expenses asked by the A.O. and the details of the various expenses relating to building material - A.O. was not justified in stating that the assessee had not furnished any reply. On the other hand the CIT(A) after examining the details/material on record, came to the conclusion that the assessee had placed copy of account of building repair alongwith copy of major bills before the A.O. vide letter dt. 24/10/2017 and considering the quantum of repair this amount was very small. - Decided against revenue. Loss on Retiring Assets - Addition treating the loss as inadmissible loss - CIT(A) deleted the addition subsequent to verification of the A.O. for the reason that the assessee suomotu had made the disallowance in its computation of income - HELD THAT:- No merit in this ground of the Departmental appeal particularly when the assessee itself added the loss on retiring asset to its income in the computation of total income. - Decided against revenue.
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2020 (4) TMI 611
Depreciation on office buildings - absence of segregation of the value of land, depreciation was being claimed on the basis of total cost paid to the India Habitat Centre - HELD THAT:- When the assessee bank does not have any segregation value of land and building of the said premises and it has paid composite price, the entire depreciation claim is allowable under Section 32 of the Act. So, following the aforesaid decision rendered by the Co-ordinate Bench of the Tribunal in CIT vs. Rajesh Exports Ltd. [2005 (11) TMI 362 - ITAT BANGALORE ] and when it is categoric case of the assessee that the purchase price of land and building is composite one and it has no segregation of value of land and building separately, disallowance made by the AO/ CIT (A) is not sustainable in the eyes of law. - Decided in favour of assessee.
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2020 (4) TMI 610
TP Adjustment - comparable selection - HELD THAT:- Companies showing super normal profits of 96.66% and such profit is not representative of the industry need to be deselected. Assessee-company in the instant case primarily provides foreign exchange services which include purchase and sale of foreign currency to individuals and corporate, in its capacity as a licensed full-fledged money changer thus companies functionally dissimilar with that of assessee need to be deselected from final list.
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2020 (4) TMI 609
Excessive rate of depreciation claimed on concrete pumps, Equipment Vehicle - @ 40% OR 15% - assessee by fixing the equipment i.e Concrete Pump etc. has made it a mobile Concrete Pump vehicle, which is a requirement for the business of the assessee and that the assessee has rightly claimed the depreciation @ 40% - HELD THAT:- Concrete Pump etc. have been fitted by the assessee as per his own convenience but the same cannot be said to be a part of the commercial vehicle, whereas, the Chassis fitted on the vehicle is a part and parcel of the vehicle. In view of the above, the claim of the assessee of depreciation @ 40% on Concrete Pump and other related equipment, has rightly been reduced / disallowed by the lower authorities and the same has rightly been allowed @ 15%. So far as the Chassis is concerned, since the same is part and parcel of the vehicle, the assessee is entitled to depreciation @ 40%.
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2020 (4) TMI 608
TP Adjustment - comparable selection - HELD THAT:- Referring to market support services provided by the assessee, companies functionally different with that of assessee need to deselected from the final list of comparable. No merit in applying employee cost filter of 25%. Treatment of certain items as non-operating while computing margins of comparables which are foreign exchange gain/ loss, bank charges and provision for doubtful debts - HELD THAT:- Forex gain/loss arise in normal course of business due to realization of export proceeds, settlement of import payables or adjustment of customer advances at a different rate than the rate at which it was booked, and should be considered as operating while computing operating margins of comparables. Bank charges are levied by banks for maintenance of bank accounts and various other facilities intrinsically linked to business operations of an assessee and hence should be considered as operating while computing operating margins of comparables. Provision for doubtful debt is an estimated percentage of debtors that are not expected to pay during the year and hence directly relate to business operations of assessee and should be considered as operating while computing operating margins of comparables. Risk adjustment -There is no quarrel that the assessee has a cost plus business model operating in a low risk or almost risk mitigated environment as compared to the comparable companies who are independent service providers and bear significant risks.
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Customs
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2020 (4) TMI 607
Condonation of delay in filing appeal - Imposition of penalty u/s 114 of CA - Fraudulent availment of Duty Drawback. Condonation of delay in filing appeal - HELD THAT:- Without going into the interpretation of Rule 6A and explanation thereto we find that these appeals have been filed by the revenue as directed by the tribunal, to comply with the requirement of explanation (2) to Rule 6A. Since the main appeal was filed within time, these appeals are only technical appeals and the delay in filing these appeals need to be condoned. Penalty - HELD THAT:- In the appeal filed by the revenue, nothing has been brought on record to show that the respondents had connived and abetted in the acts of exporter to claim the drawback fraudulently. In absence of any personal knowledge of the respondents or their act of connivance or abetment in the acts of exporters the provisions of Section 114 could not have been invoked against these officers. Commissioner has also not given the clean chit to these officers in respect of their failure to perform the duties assigned to them diligently. He only has extended the benefit of doubt as departmental investigation has failed to show that these officers had knowledge and had connived with the exporter in his act - penalty cannot be imposed. Decided against Revenue.
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2020 (4) TMI 606
Overvaluation of export goods - consignments of cotton printed and dyed fabrics - rejection to declared value - substantial evidences to show overvaluation of goods or not - HELD THAT:- The evidence produced by the appellant was not considered favourably on the sole ground that the same cannot be produced at the time of personal hearing of the matter. The Bank Realization Certificate submitted by the appellant proves the fact that the goods were exported and foreign currency to that extent was realized through the approved banking channel. Thus, under such circumstances and in view of the specific fact that the department has not produced any tangible evidence to show overvaluation of the goods, the adjudged demands confirmed on the appellant cannot be sustained. Appeal allowed - decided in favor of appellant.
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Insolvency & Bankruptcy
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2020 (4) TMI 605
Maintainability of application - initiation of CIRP - Appellant has assailed the impugned order mainly on the ground that the impugned order is an ex parte order and was communicated to the Appellant on 09th January 2020 by the Insolvency Resolution Professional - HELD THAT:- The Corporate Debtor failed to make the payment despite service of the demand notice issued under Form 3 of the Insolvency and Bankruptcy (Application to Adjudicating Authority Rules, 2016). The Corporate Debtor neither made the payment nor sent any notice of dispute and the alleged outstanding amount of more than ₹1,00,000/-. There is sufficient evidence on record to prove the amount due and payable against the Corporate Debtor in the circumstances - the service of the demand notice on the corporate debtor was proper. Despite service of notice under Section 8(1) of the I B Code, 2016 the Corporate Debtor neither made the payment not raised any dispute of the outstanding amount. The Appellant has admitted that the Court notice was received by its employee Ashish Gupta on 17th August 2019, but he left the organisation on 03rd October 2019. Since the said employee was in active employment of the Appellant/Corporate Debtor when he received the notice, thus it is clear that the order to proceed the case ex-parte is fully justified - The Appellant has also admitted that he has defaulted in payment of the outstanding amount due to cash crunch and was willing to pay the same. The Appellant has also not disputed the completion certificate dated 05th January 2018, which clearly shows that the work was completed to its satisfaction. Appeal dismissed - decided against appellant.
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2020 (4) TMI 604
Admissibility of petition - initiation of CIRP - time limitation - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - whether the petition filed by the financial creditor is within the period of limitation under Article 137 of the Limitation Act? - HELD THAT:- There is no impediment for the petitioner/financial creditor to initiate proceedings under the Insolvency and Bankruptcy Code, 2016 simultaneously, along with initiation of proceedings before the Debt Recovery Tribunal. The question of exclusion of time on the ground that proceedings are pending before the Debt Recovery Tribunal, for computation of limitation under Article 137 of the Limitation Act does not arise, for the reason that the Debt Recovery Tribunal proceedings are still pending and the petitioner/financial creditor moved the present application under section 7 of the Insolvency and Bankruptcy Code, 2016 simultaneously. There is no question of any exclusion of time under section 14 of the Limitation Act for initiation of proceedings under section 7 of the Insolvency and Bankruptcy Code, 2016 by the petitioner/financial creditor against the corporate debtor - In the present case the account was declared as NPA on 30-4-2013, whereas the present petition under section 7 of the I B Code was filed on 12-9-2018, which was filed beyond three years. As such the present application is liable to be rejected. Petition dismissed.
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Service Tax
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2020 (4) TMI 603
Recovery of arrears alongwith interest and penalty - HELD THAT:- Reliance placed in the decisions rendered in ATUL LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DAMAN [ 2008 (7) TMI 834 - CESTAT, AHMEDABAD] ; M/S. INDIAN COFFEE WORKERS' CO-OPERATIVE SOCIETY LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE SERVICE TAX, ALLAHABAD [ 2014 (4) TMI 407 - ALLAHABAD HIGH COURT] ; and COMMISSIONER OF SERVICE TAX VERSUS M/S MOTOR WORLD OTHERS [ 2012 (6) TMI 69 - KARNATAKA HIGH COURT] , while upholding the demand and interest, set aside the order passed by the 1st respondent with regard to penalty imposed under Sections 70, 77 and 78 of the Act. Pursuant to the same, the petitioner is entitled for refund of penalty already paid by them. It is reported that a representation seeking refund of penalty, was pending before the first respondent - Petition disposed off.
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2020 (4) TMI 602
Levy of service tax - Business Support Services - facilities and utilities which are provided by the appellants to M/s. ALIHPL as per the said contract are in the nature of infrastructural support services - HELD THAT:- The present appeal is squarely covered by the decision of this Tribunal in the case of AIR LIQUIDE NORTH INDIA (P.) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR [ 2011 (12) TMI 412 - CESTAT, NEW DELHI] where it was held that the expression support service of business or commerce would cover only the services of supporting nature for the main business - manufacture, trading or services - like services relating to marketing, customer relationship, distribution and logistics, accounting and transaction processing, office infrastructure, etc. and would not include service of renting of machinery and equipment for production or manufacture which being services relating to manufacturing activity are of altogether different nature. Appeal allowed - decided in favor of appellant.
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2020 (4) TMI 601
Reversal of CENVAT Credit - common input services have been used in the manufacture of excisable goods as well as in the trading activity - non-maintenance of separate records - recovery of 5%/6% of the profit margin of traded goods in accordance with Rule 6(3)(i) of the CENVAT Credit Rules, 2004 - HELD THAT:- Inasmuch as at the Thane unit, the appellant had taken credit on the basis of the ISD invoices issued by their Head Office which includes credit on common input services attributable to trading activity undertaken from their depots situated all over India; and also the credit availed on input services used in the manufacturing activity and distributed among all the three manufacturing unit including the Thane unit. In these circumstances, directing the Thane unit to reverse the proportionate credit attributable to trading activity of other two unit would be incorrect and cannot be sustained in law. Therefore, the appellant s Thane unit would be required to reverse the CENVAT Credit availed on common input services relatable to trading activity availed by them at their Thane unit on the invoices issued by their Head Office. To ascertain the quantum of CENVAT Credit availed at Thane unit and attributable to the trading activity, the matter is remanded to the adjudicating authority - Appeal allowed by way of remand.
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Central Excise
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2020 (4) TMI 600
Refund of duty paid during investigation - Applicability of Section 11B of Central Excise Act, 1944 - HELD THAT:- Section 11B of Central Excise Act, 1944 comes into application only in the case of refund of excise duty. In the present case, when the amount is paid during investigation, it does not attain the character of duty. A deposit is made to safeguard the interest of Revenue pending adjudication whereas the duty is paid for discharging a statutory obligation - It has been held in various decisions that amount paid as pre-deposit or the amount paid during investigation cannot be considered as duty. For refund of such pre-deposit, a mere letter to the department is sufficient. The refund of pre-deposit does not require to take recourse of Section 11B at all. The rejection of refund is unjustified - appeal allowed - decided in favor of appellant.
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Indian Laws
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2020 (4) TMI 630
Tender for appointment of Chartered Accountants Firms for assignment of internal audit of retail vending liquor shops - Eligibility criteria prescribed by Respondent-Chhattisgarh State Marketing Corporation Limited (CSMCL) to participate in tender proceedings - Clause 2.1 of the tender notification, which holds that firm of Chartered Accountants who have experience of audit for at least 2 years in last 3 financial years, of Government Organization/Govt. PSU in Liquor business are only eligible to apply as Internal Auditors of Shops - whether Clause 2.1 is arbitrary or it is inserted to extend undue benefit to any specific Firm of Chartered Accountants? HELD THAT:- Undisputedly, the tender notification is for engagement of the professionals i.e. Firm of Chartered Accountants for the purpose of internal audit of retail vending liquor shops. It is also not in dispute that prior to year 2017, the retail sale of liquor was not managed by the Respondent-CSMCL, but it is managed by the private entities/persons after obtaining yearly contract for sale of country made liquor and foreign liquor separately. The explanation offered by learned counsel for the Respondent-CSMCL that the reason for inserting Clause 2.1 in the tender notification on account of the new tax system has been brought into effect by introducing a new Act known as Central Goods and Services Tax Act, 2017 cannot be ignored - The submission of learned counsel for the Petitioner that Clause 2.1 has been inserted only to extend benefit to the Chartered Accountants Firms already engaged by Respondent-CSMCL in the previous years also do not appear to be correct when the pleading made by Respondent-CSMCL in its reply to the writ petition and application for grant of interim relief that out of five zones, in three zones, new Chartered Accountants Firms participated and this pleading has not been reverted by learned counsel for the Petitioner. As the submission of learned counsel for the Respondent has not been controverted by the learned counsel for the Petitioner that in three zones, new Firms of Chartered Accountants have participated and out of which, one of the Firm is outside of the State of Chhattisgarh also shows that the argument raised by learned counsel for the Petitioner that eligibility criteria, particularly, Clause 2.1 of the tender notification is tailor-made to extend the benefit to existing Chartered Accountants Firms, is also not sustainable and hereby repelled. The allegation/ground raised by learned counsel for the Petitioner that Clause 2.1 of the tender notification is only to extend benefit to existing Chartered Accountants Firms do not stand - Petition dismissed.
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